In Search of Confluence: Addressing Discrimination and Inequality in Sudan
Published: 1/Jan/2014
Source: Equal Rights Trust
Extract from chapter 2: Patterns of Discrimination and Inequality
Ethnic Discrimination in Relation to Citizenship
One of the most significant patterns of direct ethnic discrimination in Sudan’s recent history is the removal of Sudanese citizenship, by virtue of amendments to the Nationality Act which were passed shortly before South Sudan became independent in 2011. Section 10(2) of the Nationality Act, as amended in 2011, provides that: “Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan”. This provision appears to be in direct conflict with Article 7(2) of the Constitution, which states that “every person born to a Sudanese mother or father shall have an inalienable right to enjoy Sudanese nationality and citizenship”.
Prof Mohammed Babiker, of the Faculty of Law, University of Khartoum, writing in the period immediately after South Sudan seceded, raised the prospect that as a result of the amendments to the Nationality Act, “many individuals may be rendered stateless in this context if north or south Sudan failed to adopt appropriate legislations to prevent loss of nationality”. Prof Babiker went on to analyse the impact of the amendments to the Nationality Act, concluding:
The introduction of this vague and unconstitutional amendment provided for in Article 10(2) in the 2011 Sudan Nationality Act simply means that southerners would ‘de facto’ loose [sic] their current Sudanese nationality after South Sudan secession. This author believes that this Article discriminates against southern Sudanese (…) While the law grants dual nationality for all other nationalities, ironically Article 10 singles out southern Sudan as the only nationality that will not be able to acquire dual Sudanese nationality. Furthermore, the Act does not provide for a ‘transitional procedure’ between the loss of Sudanese nationality and acquisition of South Sudan nationality.
As Prof Babiker points out, the amendments introduced to the Nationality Act in 2011 had the potential to render millions of persons of south Sudanese descent stateless, through the use of the phrase “acquired (…) de facto, the nationality of South Sudan”. This phrase has the effect of leaving a wide area of discretion in the evaluation of whether a person has acquired an alternative nationality. As Refugees International stated in reviewing the Act in 2012:
[R]estricting the rights of southerners because they may have automatically acquired South Sudanese nationality through birth or descent violates international law as it occurs regardless of the person’s preference or whether they will in fact be recognised as South Sudanese.
Moreover, by using the words “de facto”, the Act created the conditions for widespread discrimination on the basis of ethnicity, inviting officials to use ethnic characteristics, rather than current or former residence, or any other criteria, as the basis for deciding whether a person had acquired South Sudanese citizenship. The result is the possibility of removal of citizenship, based solely on ethnic characteristics, and without consideration of the potential statelessness which might result. Furthermore, the exclusion of a possibility to have dual citizenship for persons of South Sudanese nationality singles out South Sudanese nationals alone, as all other nationals are able to acquire dual citizenship. As Refugees International has argued, this means that the Act is discriminatory on its face.
In response to questions put to it by the UN HRC at its 2014 review, the Sudanese government set out its position with respect to the citizenship status of persons of South Sudanese origin, stating that it was working with the government of South Sudan and the International Organisation on Migration to “facilitate their voluntary repatriation to their homeland”.224 It stated that:
The South Sudan Government has the onus to provide identification documents for all South Sudanese citizens in Sudan in order to facilitate their repatriation, or legalisation of their residence status in the Sudan.
In January 2014, the Equal Rights Trust interviewed X., a doctor residing in Khartoum who was born in the southern part of Sudan before the country gained independence from the Anglo-Egyptian Condominium in the 1950s. X. told the Trust that he had been resident in Khartoum since 1951, studying at one of the universities before establishing a medical practice. X. was keen to downplay the difficulties which he faced at the time of South Sudan’s secession, but went on to describe the ethnic discrimination which he experienced:
I was born in 1951 in the South, but have lived here in Khartoum almost all my life. I lived in Austria for some time, went to a couple of specialisations abroad, but graduated from medical school here and have practiced here for decades. I have been a citizen of Khartoum for longer than most people in the current government. My children were born here too. When the country split, anyone with a southern name or origin was no longer a citizen. The South Sudanese government sent a team here to register people from Sudan, and I was able to get South Sudanese nationality. However, I went to South Sudan in order to help my children obtain South Sudanese passports – never mind that they were born here and had no connection with the South. When I came back to Khartoum, I was not allowed through border control. I was arrested at the airport, as I needed a visa in order to enter Sudan. After some time, I was issued with a two-month permit. Now I am a foreigner, living here in my family home with a resident’s permit.
This seemingly absurd case appears like a minor inconvenience when compared to the situation facing persons of Southern origin who do not enjoy the privileged social status of X. who could, at least, acquire a South Sudanese passport and a Sudanese residence permit with relative ease. The United Nations High Commissioner for Refugees estimates that hundreds of thousands of people may have been rendered stateless by the 2011 changes to the law:
Between 300,000 and 350,000 South Sudanese live in Sudan and are at risk of statelessness. The “Four Freedoms” agreement signed between Sudan and South Sudan in September 2012, which allows citizens of both States to enjoy freedom of residence, movement, economic activity and property ownership, has yet to be fully implemented.
Persons of South Sudanese ethnic origin are not the only group who experience difficulties in retaining or acquiring citizenship because of their ethnicity. Human Rights Watch and the International Refugee Rights Initiative have found that persons belonging to tribes with roots or present-day populations in other countries, and children with a Sudanese mother and a foreign father can also face discrimination in acquiring Sudanese nationality. Moreover, the Open Society Initiative for Eastern Africa found that children can experience discrimination and disadvantage, in particular in education, as a consequence of not having Sudanese nationality.
Interviews conducted by the Equal Rights Trust identified a number of communities where persons experienced difficulties in acquiring nationality documents. Individuals from these communities spoke of their belief that the responsible institutions were not objective, being subject to tribal prejudice and corruption. This situation is exacerbated by the practical difficulties faced by those without citizenship in holding police officers accountable for their actions.
T., who is originally from Darfur, spoke to the Equal Rights Trust’s researchers about the actions of the police when he challenged them about their refusal to register a relative’s citizenship.230 T. said that he went to register his aunt’s citizenship, but the police officer told him to go to issue it in his own country. When T. replied that Sudan is his country, the police officer slapped him. T. slapped the officer back. The officer issued a legal notice against him. T. was detained and beaten. In his view, a tribal conflict nearly erupted and was only resolved internally when the police officer dismissed his accusation.
Download chapter: https://www.equalrightstrust.org/ertdocumentbank/Sudan%20-%20In%20Search%20of%20Confluence%20-%20Part%202.pdf
Full report: https://www.equalrightstrust.org/search-confluence-addressing-discrimination-and-inequality-sudan