STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY 2. Nationality under colonial rule and the transition to independence The states making up the EAC derive their nationality laws from two main legal traditions: the Belgian civil law and the British common law (as influenced by Sudanese law in South Sudan). Although the laws adopted at independence have been amended several times in five of the six countries (with the exception of newly independent South Sudan), the institutional and procedural framework is still based on these systems. Uganda, Tanzania and Kenya were all British territories, though with differences in status. Tanzania’s federal structure today reflects the fact that the mainland, Tanganyika, became a German colony, while the islands of Zanzibar (Unguja and Pemba) remained under the internal control of the Sultan of Zanzibar (a branch of the Omani royal family), as a British protectorate.2 The strip of territory on the mainland controlled by the Sultan was partially incorporated by Germany into Tanganyika, while the northern part fell under British control. After the German defeat in 1918, Tanganyika became a British League of Nations Mandate and subsequently UN Trust Territory, gaining independence in 1961. Today’s Kenya was administered by the British, but divided in two parts: the formerly Zanzibari coastal strip, stretching from the Tanganyika border up to Lamu, was governed as a protectorate, notionally remaining under the Sultan’s administration for internal matters. The remainder of what became Kenya, however, was designated a colony, and came under direct rule from London.3 Tanganyika gained independence in 1961; Zanzibar in 1963. The Kenyan colony and the northern part of the Zanzibari coastal strip were merged by agreement, and became independent simultaneously in 1963. Uganda was a British protectorate, and gained independence in 1962. A decree on Zanzibari nationality was adopted as early as 1911. The decree provided that “‘Zanzibari’ shall mean one of our [i.e. the Sultan’s] subjects” and that a person was Zanzibari by birth if born (anywhere) of a Zanzibari father born in Zanzibar, or if born in Zanzibar of an alien father also born in Zanzibar; a child born in Zanzibar had the right to apply to become a subject if born and resident in Zanzibar until majority, and naturalisation was also possible based on long residence. In 1952, this was replaced with a decree that provided for nationality to be attributed on the basis of birth in the Sultan’s dominions (with exclusions for those who were subjects or citizens of certain listed states, including France, Belgium, and Portugal), as well as for nationality by descent through the father for those born outside.4 The independence constitution of Zanzibar, which took effect in December of 1963, provided for nationality based on birth in Zanzibar before or after independence. The Sultan was overthrown and a new revolutionary government established in Zanzibar just one month later. The new government then agreed the merger of Zanzibar with Tanganyika, to create the United Republic of Tanzania in 1964. The provisions of Tanganyikan citizenship law were extended to apply in Zanzibar. Kenya, Uganda and Tanganyika shared the same transitional framework on nationality at independence, included in the independence constitutions negotiated with Britain. These constitutions established three ways of becoming a citizen of the new states on transfer of sovereignty: some became citizens automatically; some became entitled to citizenship and could register as of right; while others who were potential citizens could apply to naturalise, a discretionary process. Those who became citizens automatically were: firstly, persons born in the country before the date of independence who were at that time “citizens of the United Kingdom and colonies” or “British protected persons” (statuses defined in British law) and who had at least one parent also born in the territory; and secondly, persons born 2 However, Zanzibar was treated as a “protected state” for nationality purposes, a somewhat different status (analogous to that of the Gulf States), thanks to its independent nationality law. 3 For this history, see Bronwen Manby, Citizenship in Africa: The Law of Belonging, Hart Publishing, 2018; for the British territories, see Laurie Fransman, Fransman’s British Nationality Law, Third Edition, Bloomsbury Professional, 2011, Chapter 3 and catalogue entries on Commonwealth countries. 4 Zanzibar Nationality and Naturalization Decree 1911; Zanzibar Nationality Decree 1952. In 1954 the Zanzibar Immigration Control Decree restricted the entry of persons from the East African mainland to Zanzibar. UNHCR / September 2018 7