The dream of a common identity - Statelessness and Nationality in Africa

Tshepiso* is the mother of a boy named Lefa*, a beautiful two year old child born in South Africa. Lefa would have been no less special had he belonged to any other nation in the world. Unfortunately, in the entire world, there is no nation who will acknowledge his existence and offer him access to citizenship under its legislation.

Lefa is the second generation in his family to be affected by long term rejection of birth registration applications due to an inability to meet the requirements of an overly strict birth registration act. Although Tshepiso and Lefa have a claim to South African citizenship by law, strict birth registration laws and the implementation of those laws have rendered them stateless. Tshepiso has been attempting to access her nationality in South Africa for ten years without success. Both Tshepiso’s and Lefa’s applications for acknowledgement of citizenship have been formally rejected on numerous occasions over a prolonged period indicating that the state does not recognise them as citizens under the operation of its laws.

Tshepiso is a South African through descent in terms of the South African Citizenship Act. She was born in neighbouring country, Lesotho. In order to be formally recognised as a South African, she is required to provide the authorities with a foreign birth certificate from her country of birth. This country is Lesotho, a country with a birth registration rate of less than 25%.

Like many other Lesotho born children, Tshepiso’s birth was never registered in Lesotho. She was sent to live with her grandparents in South Africa by the age of three without any proof of origin. In the last ten years, Tshepiso has tried everything to meet the requirements of the Births and Deaths Registrations Act, but is barred by the absolute requirement of a foreign birth certificate which she has tried, but failed to obtain. She has been undocumented for the past 30 years, despite various attempts at proving her nationality claim.

Lefa’s father is a documented South African citizen. He wants to acknowledge paternity and pass nationality to his son. The South African authorities have repeatedly refused to register Lefa’s birth, because his mother is undocumented. This is blatant discrimination against children born to undocumented parents and against unmarried fathers who cannot acknowledge paternity of a child born out of wedlock where the mother is undocumented. Tshepiso could never legally marry Lefa’s father without a document and Lefa certainly has no control over the lack of documentation of his parents. Nevertheless, Lefa is being punished for his parents’ marital status and lack of documentation through the refusal to register his birth.

It seems contradictory that upon the 20 year anniversary of South Africa’s democracy, there are still people who cannot access the right to equal citizenship. This means that these people are excluded from political participation, affecting the principle of universal adult suffrage which is a founding value of democracy. In South Africa, being documented is compulsory. The new immigration rules are very clear on this point.  However, pre-democracy, not all black people in South Africa were able to register their births nor was there any expectation for them to do so. This apartheid legacy continues for those persons for whom there were no state interventions to assist them with birth registration. There is little understanding or sympathy for persons in this situation.

This makes it almost impossible for children whose parents’ births are unregistered to prove their South African descent. There is a common misconception, amongst state officials and the public, that a person only becomes a citizen once the state has issued the person with an identity document. This often results in the arrest and immigration detention of undocumented citizens.

Labour migration in Southern Africa has been taking place for hundreds of years. There is a mixed-nationality heritage in border communities and often, people are not even conscious of their own nationality status or that of their ancestors. Still, Lesotho, for instance, does not allow dual nationality and South Africa is suspicious of residents who were born or sojourned in a foreign country. The consequence is that whole communities are exposed to the risk of statelessness.

Characteristics of the Apartheid-era in South Africa created a very particular breeding ground for statelessness, including the irregular and incomplete registration of blacks, forced renunciation of nationality claims, the refusal to issue official documents to blacks acknowledging their nationality (passbooks for blacks referred to a person’s tribe rather than citizenship), forced migration due to political persecution and lack of employment opportunities for blacks. Before democracy black people were often forced to renounce a claim to South African nationality if they needed to travel across borders to neighbouring countries.  One person told LHR that he was issued with a Stateless passport in order to travel internationally. The nationality status of blacks who resided in South Africa before democracy is shrouded in the uncertainty caused by race discrimination and neglect.

These prevalent practices during Apartheid all have one thing in common, they affected black people. More critically affected were those living in rural areas where the registration rate was and continues to be extremely low. Other ingrained inequalities of that generation, like gender based discrimination, the invisibility of people with disabilities and poverty increased the vulnerability of this group. It is significantly more difficult for people within this group to prove their identity, than those who were not affected historically. Without proof of one’s parents’ citizenship status it is impossible to access nationality in South Africa. The legacy South Africa has inherited is a continuing inequality in access to equal (or any) citizenship. Apartheid, it seems, lives on.

The African Commission on Human and People’s Rights (ACHPR) has recently adopted a resolution regarding the protection and promotion of the right to nationality. A study into the level of access to nationality in Africa has been launched and all member states are asked to participate. The information gathered from across Africa will support the drafting of a protocol on the right to a nationality in Africa to the African Charter on Human and Peoples’ Rights.

This is very promising news, especially on a continent where tribes and families have been divided along arbitrary colonial borders and separated through imposed foreign citizenship under colonial rule. These divisions have sparked many conflicts and caused a myriad of violations to nationality rights since independence. Africa is finally taking back its inheritance by pursuing the inclusion of all Africans in its history and its future.

South Africa should sit up and take notice of these international advances in a very important, but severely neglected, field. It is only fitting that a country which has pioneered the achievement of human rights on the continent in the past 20 years should be on the foreground of the achievement of equal nationality rights.

In the meantime Lefa will be going to school soon, but not without a birth certificate. Tshepiso is determined to get her son registered no matter what the cost. Tshepiso’s relentless pursuit of her right to citizenship is truly commendable. I often get a glimpse of the strength of the human spirit through my clients’ lives. I respect them for their perseverance.

In the fight against statelessness, I hope we are fortunate enough to restore more than nationality to our clients.  I hope that we can restore legitimacy by giving them a voice. I hope we can instil in the world a dream of a common identity.

*Not their real names