CITIZENSHIP AND STATELESSNESS IN THE HORN OF AFRICA V4 The right to a nationality in the African human rights regime The African Charter on Human and Peoples’ Rights and the jurisprudence of the African Commission The African Charter on Human and Peoples’ Rights has no explicit provision on nationality. However, many other articles are relevant, including the prohibition of discrimination and the right to equality before the law in general.2°° Despite the lack of an explicit provision on nationality in the African Charter, the African Commission has heard many cases that are founded on the denial or deprivation of nationality. In these cases, the African Commission has held that Article 5 of the Charter, which provides that “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status”, applies specifically to attempts to denationalise individuals and render them stateless, in light of the consequences that flow from statelessness. In addition, the Commission has held that Article 7(1)(a), with its reference to “the right to an appeal to competent national organs”, includes both the initial right to take a matter to court, as well as the right to appeal from a first instance decision to higher tribunals. denial of nationality, the Commission In several cases relating to deportations or has held that the fact that someone is not a citizen “by itself does not justify his deportation’; there must be a right to challenge expulsion on an individual basis. 299 The Commission has ruled against Angola, Guinea and Zambia in cases relating to individual deportations or mass expulsions on the basis of ethnicity, commenting that mass expulsions “constitute a special violation of human rights.” Similarly, the Commission has found against Botswana, Zambia and Céte d'Ivoire in cases concerning the retroactive refusal to recognise the citizenship of opposition politicians challengning an incumbent.°" In 2015, in a decision adopted in relation to the Nubian community in Kenya, the Commission reaffirmed that: [NJationality is intricately linked to an individual’s juridical personality and that denial of access to identity documents which entitles an individual to enjoy rights associated with citizenship violates an 298 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted in 2003, contains strong anti-discrimination measures, but allows national law to override the non-discrimination presumptions of the treaty in relation to passing citizenship to children, and does not provide for the right of a woman to pass citizenship to her husband. nationality of her husband; See Art. 6 (g): a woman shall have the right to retain her nationality or to acquire the (h) a woman and a man shall have equal rights with respect to the nationality of their children, except where this is contrary to a provision in national legislation or is contrary to national security interests. 299 Amnesty International v. Zambia, para. 33. 30 Union Interafricaine des Droits de I’Homme and Others v. Angola, paragraph 16. See also Communication No. 292/2004, institute for Human Rights and Development in Africa v. Angola (2008); Rencontre Africaine pour la Défense des Droits de I’Homme v. Zambia; Communication No. 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea (2004). 301 Modise v. Botswana, Communication No.97/93, African Commission on Human and Peoples’ Rights, 2000,; Amnesty International v. Zambia, Communication No. 212/98, African Commission on Human and Peoples’ Rights, 1999; Legal Resources Foundation v. Zambia, Communication No.211/98, African Commission on Human and Peoples’ Rights, 2001; Mouvement ivoirien des droits humains (MIDH) v. Céte d'Ivoire, Communication No. 246/02, African Commission on Human and Peoples’ Rights, 2008. UNHCR — December 2021 67