STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY 3. Nationality laws of EAC Partner States today The nationality laws of Partner States of the EAC have, with the exception of Tanzania, been substantially modified since independence. Nonetheless, they all still show their institutional and conceptual origins in the common law or civil law system, and there are some broad distinctions that can be made between the three original EAC members and Rwanda and Burundi, and then South Sudan as a separate case. In particular, the civil law systems establish a framework in which questions related to nationality, so fundamental to other rights, are subject to adjudication by a court; whereas the common law countries, especially Tanzania, allow for more executive discretion. Burundi, Kenya, South Sudan and Uganda provide for an almost exclusively descent-based system in law; Tanzania’s law provides, on a strict reading of the law, for citizenship based on birth in Tanzania, but in practice is interpreted by the authorities to be based on descent. Rwanda also favours a descent-based rule, but is the only country to provide some rights to a child based on birth in the territory. All EAC members have highly discretionary systems for naturalisation. The right to a nationality The Kenyan constitution provides for every child to have the right to a name and nationality, and the Rwandan constitution for every person to have the right to a nationality.5 Kenya, South Sudan, and Tanzania also provide for every child to have the right to a nationality in specific legislation relating to children’s rights.6 However, the nationality codes themselves do not necessarily ensure that this promise is fulfilled. Nationality based on birth in the territory The countries with the strongest protections against statelessness for children born on their territory are those that follow a jus soli rule, granting nationality automatically to any child born on their soil. On the face of it, Tanzania’s Citizenship Act establishes jus soli as the basic principle for attribution of Tanzanian citizenship. While the 1995 Act made some changes to the 1961 constitutional provisions, section 5 is still based on the standard language of the Commonwealth independence constitutions, providing that a person born in Tanzania becomes a citizen at birth, unless “neither of his parents is or was a citizen of the United Republic and his father possesses the immunity from suit and legal process which is accorded to an envoy of a foreign sovereign power accredited to the United Republic” (section 5(2)(a)). Although confusing in the way it is written, with conditions to a condition, the clear meaning of this subsection, common to all the British-model laws of the 1960s, is that a child born in Tanzania is a citizen even if both parents are foreigners, unless the father is a diplomat; and even if the father is a diplomat, the child is a citizen if the mother is a citizen. This, however, is not how the Immigration Services Department interprets the law; nor most lawyers in Tanzania. The opinion of the Ministry of Justice and Constitutional Affairs is that citizenship is based only on descent: that is, as if the proviso in section 5(2)(a) ended after “neither of his parents is or was a citizen of the United Republic” without any of the language following. This interpretation is reportedly based on the intentions of parliament revealed by Hansard debates at the time the laws were adopted.7 Former Tanzanian Prime Minister and Attorney-General, and judge of the East African Court of Justice Joseph Warioba, however, is reported to have affirmed the interpretation that under the law any person who is 5 Kenya Constitution 2010, Article 53; Rwanda Constitution 2003, revised 2015, Article 25. 6 Kenya Children Act No. 8 of 2001, Section 11; South Sudan Child Act No 10 of 2008, Section 10; Tanzania Law of the Child Act 2009, Section 6. 7 Interviews, Department of Immigration Services, Dar es Salaam, July 2016; unpublished letter from the Ministry of Justice and Constitutional Affairs to the Commissioner-General of Immigration, 9 March 2000. UNHCR / September 2018 9