citizenship law in

150 Pages·2016·1.12 MB·English

3RD EDITION
CITIZENSHIP LAW IN
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Few African countries provide for an explicit right to a nationality. Laws and

practices governing citizenship effectively leave hundreds of thousands I
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of people in Africa without a country. These stateless Africans can neither

vote nor stand for office; they cannot enrol their children in school, travel A
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freely, or own property; they cannot work for the government; they are
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exposed to human rights abuses. Statelessness exacerbates and underlies
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tensions in many regions of the continent. Citizenship Law in Africa, a
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comparative study by two programs of the Open Society Foundations,
describes the often arbitrary, discriminatory, and contradictory citizenship
laws that exist from state to state and recommends ways that African
countries can bring their citizenship laws in line with international
rights norms. The report covers topics such as citizenship by descent,
citizenship by naturalisation, gender discrimination in citizenship law,
dual citizenship, and the right to identity documents and passports. It is
essential reading for policymakers, attorneys, and activists.
This third edition is a comprehensive revision of the original text, which
is also updated to reflect developments at national and continental levels.
The original tables presenting comparative analysis of all the continent’s
nationality laws have been improved, and new tables added on additional
aspects of the law. Since the second edition was published in 2010, South
Sudan has become independent and adopted its own nationality law, while
there have been revisions to the laws in Côte d’Ivoire, Kenya, Libya, Mali,
Mauritania, Namibia, Niger, Senegal, Seychelles, South Africa, Sudan,
Tunisia and Zimbabwe. The African Commission on Human and Peoples’
Rights and the African Committee of Experts on the Rights and Welfare of
the Child have developed important new normative guidance.
Citizenship Law in Africa
A Comparative Study
By Bronwen Manby
Published by African Minds on behalf of
Open Society Foundations
224 West 57th Street
New York, NY 10019
www.opensocietyfoundations.org

African Minds
4 Eccleston Place, Somerset West, 7130, Cape Town, South Africa
[email protected]
www.africanminds.org.za

2016
All contents of this document, unless specified otherwise, are licensed under
a Creative Commons Attribution Non-Commercial 4.0 International Licence

ISBNs
978-1-928331-08-7 Print
978-1-928331-12-4 e-Book
978-1-928331-13-1 e-Pub

Copies of this book are available for free download at www.africanminds.org.za

ORDERS
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Contents
Preface to the third edition v
Disclaimer vii
Abbreviations viii
Definitions ix
Summary and recommendations 1
The right to a nationality in African laws 4
Racial, ethnic and religious discrimination 5
Gender discrimination 6
Naturalisation 7
Dual nationality 9
Loss, deprivation and arbitrary non-recognition 9
International norms 11
Recommendations 13
International norms on nationality 21
The right to a nationality and prohibition of statelessness 21
Nationality in the context of state succession 29
Deprivation or non-recognition of nationality and expulsion from a territory 30
The jurisprudence of the African human rights bodies 33
African states’ accession to international treaties 36
Nationality under colonial rule and the transition to independence 38
The basis of nationality law today 43
The right to a nationality in national law 45
Nationality based on birth in the territory 47
Children of stateless parents or who would otherwise be stateless 49
Foundlings or children of unknown parents 49
Nationality based on descent 53
Adopted children 57
Racial and ethnic discrimination 60
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CITIZENSHIP LAW IN AFRICA
Gender discrimination 63
Nationality of children 63
Nationality based on marriage 65
Partial reforms on gender equality in North Africa 70
Dual nationality 73
Naturalisation 80
Nationality requirements for public office 97
Dual nationality 97
Naturalised persons 98
Rights for the African diaspora 101
Ethiopia 101
Ghana 101
Loss and deprivation of nationality 103
Renunciation and reacquisition 112
Evidence and documentation 116
Birth registration and evidence of entitlement to nationality 116
Proof of nationality 118
The right to a passport 121
State successions since independence 125
Separation of part of a territory 125
Transfers of territory 126
Naturalisation as a “durable solution” for refugees 128
Appendix: Legal sources 134

List of tables
Table 1: Right to nationality based on birth in the territory 50
Table 2: Right to nationality based on descent 54
Table 3: Right to nationality for adopted children 58
Table 4: Right to transmit nationality to a spouse 66
Table 5: Countries permitting and prohibiting dual nationality for adults 77
Table 6: Right to acquire nationality by naturalisation 86
Table 7: Criteria for loss of nationality 109
Table 8: Renunciation and reacquisition 113
iv
Preface to the third edition
This is the third edition of this book, originally published in 2009 and written
while I was an employee of Open Society Foundations (OSF). The second
edition of 2010 included updates on several countries and some minor
corrections. This third edition is a comprehensive revision of the original text,
updated to reflect developments at national and continental levels, to clarify
some interpretations based on my increased understanding of the issues,
and to present completely revised and improved tables based on comparative
analysis of the nationality laws of 54 countries in Africa, as well as additional
tables dealing with new aspects of the law. The appendix contains the updated
list of laws in force as of 2015 used to compile this study.
Among the countries that have adopted revisions to their nationality laws
of greater or lesser significance since 2009/10 are Côte d’Ivoire, Kenya, Libya,
Mali, Mauritania, Namibia, Niger, Senegal, Seychelles, South Africa, Sudan,
Tunisia and Zimbabwe. Perhaps the most significant other developments
with impacts on nationality law and the right to a nationality are the secession
of South Sudan from Sudan, and the impact of South Sudan’s new nationality
on both countries, and the transfer of sovereignty of the Bakassi peninsula
from Nigeria to Cameroon.
There have also been major developments in standard-setting at the
African and international levels. The African Commission on Human and
Peoples’ Rights adopted two resolutions and a study on the right to nationality
in Africa, leading up to the adoption in July 2015 of a draft Protocol to the
African Charter on Human and Peoples’ Rights on the Specific Aspects of
the Right to a Nationality and the Eradication of Statelessness in Africa. The
African Committee of Experts on the Rights and Welfare of the Child handed
down an important decision on the nationality of children of Nubian origin in
Kenya in 2011, which informed a General Comment on Article 6 of the African
Charter on the Rights and Welfare of the Child (name, birth registration and a
nationality) adopted by the Committee in 2014. The UN High Commissioner
for Refugees (UNHCR) has also adopted a number of guidelines and other
documents on statelessness and in 2014 launched a major campaign to end
statelessness within 10 years. In Africa, UNHCR’s regional office in Dakar
has collaborated with the Economic Community of West African States
(ECOWAS), leading to the adoption in 2015 of a regional declaration on the
urgency of addressing statelessness.
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CITIZENSHIP LAW IN AFRICA
The first edition of this book was published at the same time as my Struggles
for Citizenship in Africa (Zed Books, 2009), which gathered case studies of
the practice of statelessness and citizenship discrimination in Botswana,
Côte d’Ivoire, Democratic Republic of Congo, Ethiopia, Kenya, Mauritania,
Nigeria, Sierra Leone, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe and
elsewhere. This text draws on the information in Struggles for Citizenship in
Africa, as well as on several subsequent publications, including Statelessness
in Southern Africa, a briefing paper for a UNHCR Regional Conference on
Statelessness in Southern Africa in November 2011, and Nationality, Migration
and Statelessness in West Africa, UNHCR and IOM, 2015. The tables and
information in the first edition of the report were also updated for use by the
African Commission on Human and Peoples’ Rights in its study on The Right
to Nationality in Africa adopted in May 2014.
The genesis of this report lay in information collected as part of a 14-country
“Africa citizenship audit” initiated by Chidi Odinkalu and Julia Harrington
of the Open Society Justice Initiative working with the Africa foundations in
the Open Society Foundations network. Information on this survey and its
participants is available at the website of the Open Society Justice Initiative.1
A group of nationality experts and advocates met in London on
20 February 2009 to discuss the recommendations for this report. Those who
attended the meeting were: Adrian Berry, Chaloka Beyani, Brad Blitz, Deirdre
Clancy, Jim Goldston, René de Groot, Julia Harrington, Adam Hussein, Khoti
Kamanga, Ibrahima Kane, Mark Manly, Dismas Nkunda, Chidi Odinkalu,
Louise Olivier, Gaye Sowe, Souleymane Sagna, Ozias Tungwarara and Patrick
Weil. Abdelsalam Hassan Abdelsalam, Jorunn Brandvoll, Laurie Fransman,
Susin Park, Santhosh Persaud and Laura van Waas also provided input on the
recommendations. While most of the rest of the book has been revised since
2009, the recommendations remain unchanged.
Thanks to all my colleagues at the Open Society Foundations for their
support and guidance over many years of working on these issues.
Bronwen Manby
January 2016
1 https://www.opensocietyfoundations.org/publications/africa-discrimination-and-citizenship-audit-report
vi
Disclaimer
While every effort has been made to ensure that the tables and descriptions
of the laws in African countries are accurate and up to date, very complex
provisions have been simplified. Readers should not treat them as definitive
nor accord them the status of legal advice. Many provisions are subject to
interpretation, and difficult to represent in tabular form. In this edition, the
laws and tables are updated to the end of December 2015. In the tables, the
final column referencing the legal source gives the original date of the law
currently in force, with the date of the latest amendment in brackets.
vii
Abbreviations
ACHPR African Charter on Human and Peoples’ Rights
ACRWC African Charter on the Rights and Welfare of the Child
AHRLR African Human Rights Law Reports
AU African Union
CAR Central African Republic
Convention on the Elimination of All Forms of Discrimination
CEDAW
Against Women
International Convention on the Elimination of Racial
CERD
Discrimination
CRC Convention on the Rights of the Child
DRC Democratic Republic of Congo
EAC East African Community
ECOWAS Economic Community of West African States
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ILC International Law Commission
IOM International Organisation for Migration
OAU Organisation of African Unity
SADC Southern African Development Community
SADR Sahrawi Arab Democratic Republic
STP São Tomé and Príncipe
UK United Kingdom (of Great Britain and Northern Ireland)
UN United Nations
UNHCR UN High Commissioner for Refugees
viii
Definitions
Citizenship/nationality: In this report citizenship and nationality are used
interchangeably as in contemporary international law usage to refer to the legal
relationship between an individual and a state, in which the state recognizes
and guarantees the individual’s rights.
In the 1955 Nottebohm case, the International Court of Justice said that
“[a] ccording to the practice of States, to arbitral and judicial decisions and to
the opinion of writers, nationality is a legal bond having as its basis a social
fact of attachment, a genuine connection of existence, interest and sentiments,
together with the existence of reciprocal rights and duties”.2 Precisely which
rights the state guarantees to its nationals/citizens varies by state, but the
most common restricted rights are the right to permanent residence within
the state, the right to freedom of movement within the state, the right to vote
and to be elected or appointed to public office, the right of access to public
services, and the right to diplomatic protection when outside the country. In
addition there are other rights that are guaranteed to non-nationals as well as
nationals by the international human rights regime.
In domestic law, “citizenship” is used more often in the Commonwealth
states for this legal bond of rights and duties, while the civil law countries
use “nationality” (nationalité/nacionalidade). However, international law texts
more commonly (though not consistently) use the term “nationality”, even
in English language versions: this report favours the use of “nationality”
in relation to international obligations and in civil law contexts, using
“citizenship” and “citizen” in the common law states.3
“Citizenship” is not used here with its wider meaning in political science
or sociology encompassing the idea of full participation in a community, nor
does “nationality” have any ethnic or racial connotation.
Nationality from birth/of origin: Nationality or citizenship from birth is used in
this report to mean nationality that an individual is automatically attributed
by law from the moment of birth rather than acquired as an adult or following
any administrative process. Nationality granted solely on the basis of birth in
a territory (by jus soli) is a separate concept, and explicitly described as such
2 Liechtenstein v. Guatemala ICJ Reports, 1955, p. 23. Liechtenstein sought a ruling that Guatemala should
recognise Friedrich Nottebohm as a Liechtenstein national. See also Carol A Batchelor, “Statelessness and
the Problem of Resolving Nationality Status,” International Journal of Refugee Law, Vol. 10, No. 1/2, 1998,
pp. 159–160.
3 This is a change from the second edition, where “citizenship” was used more often; however, “citizenship”
and especially “citizen” are still used in some contexts where they sound more natural in English. In French, the
natural term for a national is often “ressortissant”; however, ressortissant can have a slightly wider meaning than
those with nationality, to encompass others falling under the state’s jurisdiction, depending on context.
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