Statelessness in Southern Africa | Newsletter Quarter 2 | 2023

Published: 7/Aug/2023
Source: Southern Africa Nationality Network (SANN) and UNHCR

Extracts relating to developments in law and policy:


On 06 April, an application was made at the High Court of the Kingdom of Eswatini ( Eswatini) to declare laws limiting the passing of citizenship from swazi women to their children to be declared unconstitutional due to their discriminatory nature. The applicant is a citizen of Eswatini and is legally married to a Zimbabwean national, who is ordinarily a resident of Eswatini The couple have three children who were all born in Eswatini. The children are not eligible for citizenship by birth under Eswatini’s citizenship laws because their father is not Swazi.

The application argues that these laws violate the principles of equality and nondiscrimination enshrined in the Eswatini Constitution and international human rights standards. The application notes that current laws infringe upon the rights of Swazi women and their children to equal protection under the law and to access citizenship on an equal basis with men. The case seeks to emphasise that citizenship should not be determined solely based on the sex of the parent, but rather on principles of equality and fairness. It highlights the negative consequences faced by women and their children as a result of these discriminatory laws, including issues related to documentation, rights, and access to social services. For more details on the case you can read the notice of application and founding affidavit here.

On 08 June , the Parliament of the Kingdom of Eswatini passed the National Civil Registration and Vital Statistics Bill. This Bill seeks to remedy Eswatini’s citizenship laws and improve the functioning of the civil registration system. More especially to reform discriminatory laws that relate to a child’s inability to inherit their mother’s nationality. The Bill includes frameworks for the protection of foundlings who shall be recognised as citizens of the Kingdom of Eswatini by birth and granted the Dlamini surname of King Mswati III, as is customary in the Kingdom.

On the 13th June the Minister of Labour and Social Security Hon. Phila Buthelezi reiterated the Kingdoms commitment to end statelessness through legal reform at the Global Summit on Gender Equality in Nationality Laws in Geneva. He stated:

“His Majesty’s Government further recognizes that gender discriminatory provisions in nationality laws have a negative impact on society, mostly to children that do not have the right to their mother’s nationality. I am therefore happy to report that just a few days ago on the 8th of June, 2023 the National Civil Registration and Vital Statistics Bill was passed by both Chambers of Parliament. This Bill seeks to, amongst other things, remove the gender discriminatory provisions which exist in the current Births, Marriages and Deaths Act, 1983.”

Hon. Phila Buthelezi’s remarks at the Global Summit can be read here.

In addition to this in a recent public announcement, the Secretary General of the National Assembly, addressed these discriminatory provisions in the Constitution that hinder mothers from passing on their nationality to their children. To rectify this inequality, the Secretary General directed that the term “father” be reinterpreted as “parent.” This significant reinterpretation will ensure that both men and women have equal rights in conferring nationality to their children, promoting a fair and inclusive approach to citizenship.

South Africa

Following ongoing advocacy and litigation by SECTION 27 on the 14th April the High Court of South Africa, Gauteng Division, Johannesburg issued a ruling declaring the Gauteng Department of Health’s regulations and policy, implemented in 2020, which denied free healthcare services to pregnant and lactating women, young children who are asylum seekers, undocumented, or affected by statelessness, as unlawful. The court ordered the Gauteng Department of Health to revise its policy by October 16, 2023. Additionally, the court deemed any other similar policies or circulars that restrict pregnant and lactating women and children under the age of six from accessing free healthcare services as inconsistent with the National Health Act and invalid. A full article on this case can be read here, the court order can be read here as well as a guide for access to free healthcare services.

On 01 June, LHR’s Statelessness Programme secured a birth registration order on behalf of a minor in the Tembisa Children’s Court at Magistrates Court. The child was born at Rahima Moosa Hospital in Johannesburg, but her mother died before she had a chance to register her daughter’s birth. The details or whereabouts of her father and his family are unknown and she was in the legal care of her elderly grandmother and uncle. Lawyers for Human Rights intervened and successfully navigated the bureaucratic red tape which had prevented her birth registration to secure the necessary documentation and access to her fundamental rights.

In January 2023, the CCL, represented by candidate attorney, Fortunate Mongwai, reached a settlement with the Department of Home Affairs (DHA) regarding a section 2(2) South African Citizenship Act matter at the Benoni Children’s Court. As a result, the client, who had been declared stateless by the Mozambique embassy, was finally issued a birth certificate by the DHA in May 2023, confirming his South African citizenship. We are currently awaiting the issuance of his identity document. Fortunate has since successfully facilitated the registration of four births in June. This includes two siblings from Rustenburg, North West, and two of four siblings from Tsakane, Gauteng. Another significant achievement was made by CCL Attorney, Stanley Malematja, who assisted in a long-standing case where a child had not been documented for several years, despite both parents being South African. In this case, the child received a birth certificate from the Soshanguve Department of Home Affairs (DHA).

The CCL submitted documents to the UN Committee on the Rights of Persons with Disabilities after intervening in a case involving a child with cerebral palsy and seizures who didn’t have documentation. The submission urged the South African Government to make public services more accessible, including the Department of Home Affairs, so that everyone can obtain documentation and nationality. This is important under Article 18 of the UN Convention on the Rights of Persons with Disabilities, which focuses on the right to nationality.

CCL and LHR submitted comments on the National Identification Registration Bill, which proposes the establishment of a single, inclusive and integrated national identification system. The submissions highlighted three main shortcomings in the Bill:

  1. The Bill requires a parent or guardian to apply for a minor’s first ID card, but it does not provide provisions for children whose parent or guardian is not available.
  2. The Bill fails to include provisions for recording non-national births in South Africa and the re-issue of documents related to their births.
  3.  The Bill lacks provisions that establish constitutionally compliant procedures to verify, investigate, and cancel certificates and ID cards in accordance with the right to just administrative action and the Promotion of Administrative Justice Act (2009).

The full submission can be accessed here.

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Themes: Acquisition by children, Discrimination, Gender, Birth Registration, ID Documents and Passports, Statelessness
Regions: Republic of Congo, Madagascar, Southern Africa, Angola, Lesotho, Mozambique, Namibia, South Africa, Eswatini, Zambia, Zimbabwe
Year: 2023