STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY Foundlings or children of unknown parents Protections in international law for the right to nationality for children of unknown parents, known as “foundlings”, are amongst the longest standing requirements of international law on nationality.16 UNHCR recommends that provisions on foundlings should “apply to all young children who are not yet able to communicate accurately information pertaining to the identity of their parents or their place of birth.”17 The Kenyan constitution of 2010 introduced for the first time a presumption of citizenship in favour of children of unknown parents, applying the presumption to a child who appears to be under the age of eight at the age found; Uganda’s 1995 constitution creates the presumption for a child up to the age of five; South Sudan, however, only provides for abandoned infants. Rwanda provides in the same article for nationality to be attributed to children of unknown or stateless parents and for abandoned infants to be presumed born in Rwanda,18 while Burundi creates a presumption of nationality in favour of abandoned infants and children of parents who are “legally unknown”.19 Tanzania is one of a minority of African countries that do not have a provision relating to foundlings or children of unknown parents.20 Table 1: Right to nationality based on birth in the territory COUNTRY Parents stateless (s) or unknown (u) Abandoned infants (most recent amendment in brackets) u x L2000 Art3 u x C2010 Art14(4) L2011 Sec9 s+u x L2008 Arts8-9 x L2011 Sec8 JS L1995 Sec5 JS~ x C1995(2005) Arts10-11 L1999(2009) Secs12-14 Birth in country Birth and one parent also born Birth and resident at majority Child otherwise stateless (os) Burundi Kenya Rwanda (JS) South Sudan Tanzaniaa Uganda os JS/2^~ Relevant legal provision JS jus soli attribution: a child born in the country is a citizen (with exclusions for children of diplomats and some other categories). (JS) child born in country of non-citizens is eligible to apply for citizenship at majority. JS/2 double jus soli attribution: child born in country of one parent also born in the country is a citizen. ^ A person born in or outside of South Sudan is South Sudanese if any parent, grandparent or great-grandparent was born in South Sudan. ~ racial, ethnic or religious discrimination in law impacts on jus soli rights (in Uganda, the jus soli provision applies only to those who are members of an “indigenous community”). a The law in Tanzania provides for jus soli, and this is recorded here. A descent-based system is applied in practice. 16 Included in The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930, Article 14. 17 UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, HCR/GS/12/04, 21 December 2012, paragraph 58. 18 The law governing persons and the family adopted in 2016 (Law No. 32/2016 of 28/08/2016) also provides in article 102 that “Any person who finds an abandoned new-born child whose father and mother are unknown, is bound to register its birth within thirty (30) days with the civil registrar of the place where the child was found, who issues a provisional birth record.” 19 Kenya Constitution 2010, Article 14(4) and Citizenship and Immigration Act 2011, Section 9; Uganda Constitution 1995, Article 11; South Sudan Nationality Act 2011, Section 8(4); Burundi Code de la nationalité 2000, Article 3. The meaning of “legally unknown” (légalement inconnus) is not clear: the term is not used in the Burundian family code, and it appears to come from Belgian law in force before 1984, and now-obsolete provisions in the Belgian family code, email communication from Prof. Patrick Wautelet, University of Liège, 29 August 2016. 20 The proposed draft new Tanzanian constitution of September 2014 would adopt the same wording as in Kenya. UNHCR / September 2018 11