STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY South Sudan South Sudan’s nationality law is very broadly drafted: it attributes nationality at birth, wherever a person is born, to people who belong to the “indigenous ethnic communities” of South Sudan; those with a parent, grandparent or great-grandparent who was born in South Sudan,239 and those whose ancestors have been resident in the territory since 1956. In principle most—though not all—of those habitually resident in South Sudan who desire to do so should be able to obtain recognition of South Sudanese nationality under this law; either by birth or, if resident for more than ten years, by naturalisation. Nonetheless, the fundamentally ethnic definition of nationality in Section 8(1)(b) of the South Sudan Nationality Act creates difficulties in deciding which groups in fact form the “indigenous ethnic communities of South Sudan”. Neither the Transitional Constitution of South Sudan nor the South Sudan Nationality Act provides a list of these groups (by contrast with Uganda), nor outlines the criteria to be deemed a member of one of those communities. This definition creates potential problems both for those of South Sudanese origin who have for many years or generations been resident in (north) Sudan, and for minority or crossborder ethnic groups who may not be commonly understood to be an ethnic community of South Sudan. In practice, implementation of the nationality legislation has been slow and challenging. Even without the breakdown in the government from late 2013, the lack of an existing national civil registry, the history of forced displacement, and the lack of administrative infrastructure in many parts of this new country would create significant obstacles to the efficient implementation of nationality legislation. In practice, there are reports that certain vulnerable groups, including women without male relatives to represent them; orphaned children; returned refugees, and members of some ethnic groups, have faced difficulties accessing proof of cititzenship when they have applied.240 Those applying for documents recognising South Sudanese nationality are required to show that they are members of one of the “indigenous ethnic communities” (unless they are of obviously “foreign” ancestry applying on one of the other grounds). Regulations adopted under the Nationality Law provide that “where documentary evidence is not available to support an application” witness testimony may be taken into account from a range of community or traditional leaders.241 Applicants are tested on their ability to speak Juba Arabic; required to bring letters of support from traditional authorities, and judged according to their skin colour and facial characteristics. Members of ethnic groups from Equatoria, on the border with Uganda, such as the Acholi or Kakwa, find it more difficult to obtain South Sudanese documents, as well as those of mixed ethnicity and who look “Arab”, and others who have lived outside South Sudan for many years.242 The very broad attribution of nationality under the law also creates problems for those resident outside the country who do not wish for South Sudanese nationality.243 In (north) Sudan, it is already the case that people who are believed by the Sudanese authorities to fit the definition under the law of South Sudan are being deprived of Sudanese nationality, under legal amendments that prohibit dual nationality with South Sudan 239 The New Sudan Nationality Act adopted by the SPLM/A in 2003, before the CPA was adopted and of no formal legal effect, provided a similar framework to the law of 2011, except that a person was stated to be a national if “he was or his parents, his grand and great grandparents were born in the New Sudan”: the difference between the “and” and the “or” in the 2011 law (see footnote 13) in theory means a change from providing a jus soli attribution or requiring three prior generations born in the country, or just a single great-grandparent born there, a massively diluted level of connection. 240 UNHCR, A Study of Statelessness in South Sudan, 2017. 241 South Sudan Nationality Regulations, 2011, under heading “General Procedures for all Nationality and Naturalization Certificates: Inquiry and Standard of Proof”. 242 Interviews, Kampala, July 2016; South Sudan Nationality: Commitment now avoids conflict later, Refugees International, 29 May 2012; Ferenc Dávid Markó, “Negotiations and morality: the ethnicization of citizenship in post-secession South Sudan” Journal of Eastern African Studies, Vol. 9, No. 4, 2015, pp. 669–684; Ferenc Dávid Markó, “We Are Not a Failed State, We Make the Best Passports”: South Sudan and Biometric Modernity, African Studies Review Vol. 59, No. 2, 2016, pp. 113–132. 243 Bronwen Manby, The Right to Nationality and the Secession of South Sudan: A Commentary on the Impact of the New Laws, Open Society Foundations, 2012. 58 UNHCR / September 2018