1. Introduction Now, who has ever seen a nationality, be it directly or indirectly? An individual’s nationality can no more be guessed from his face than the political borders of our earthly states can be discerned from space. Wisdom therefore prompts us to put this phenomenon into perspective, since, like law, it is construed and not given1. 1.1 Background The starting point for the present document was the adoption in April 2013, by the African Commission on Human and Peoples’ Rights (hereinafter the African Commission), of a Resolution2 entrusting its Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa (hereinafter the Special Rapporteur) with the conduct and drafting of a study on the right to nationality on the continent. However, this decision was actually the final stage in a multifaceted thought process taking place on the continent regarding the right to nationality. Litigation on nationality and massive expulsions of aliens in Africa3, and notably the hallmark case of the nationality of the former President of Zambia Kenneth Kaunda4, comprised the foremost source of information for the African Commission on this phenomenon, which other African Union bodies had already noted to be a problem of concern. The African Union’s Migration Policy Framework adopted in 2006 included among its other recommendations that AU Member States should ‘incorporate key guidelines as recommended in the 1954 and 1961 Statelessness Conventions’, and ‘develop national legislative and policy frameworks to counter statelessness, particularly in cases of long-term residents, by reforming citizenship legislation and/or granting rights similar to those enjoyed by foreigners residing in the country’5. Experts meeting within the framework of the African Union Border Programme in June 2007 in Addis Ababa, Ethiopia, urged the States concerned with problems to do with the delimitation and demarcation of their boundaries to ‘take the necessary steps to protect the rights of the affected populations, notably where there is a risk of loss of nationality [statelessness], of real property or of forced displacement’6. They agreed ‘to undertake and pursue bi­lateral negotiations on all problems relating to the delimitation and demarcation of their borders, in­cluding those pertaining to the rights of the affected populations, with a view to finding appropriate solu­tions to these problems’7. 1 Jean Dabin, Théorie générale du droit, Bruxelles, Bruylant, 1944, pages 97-132, quoted by Michel Verwilghen, in Conflits de nationalités, Plurinationalité et apatridie, 2000, Martinus NIJHOFF, page 466. Unofficial translation. 2 See Resolution No. 234 adopted in Banjul, The Gambia, on 23 April 2013. 3 Cases pertaining to citizenship include: Communication No. 97/93, John K. Modise v. Botswana; Communication No. 212, Amnesty International v. Zambia; Communication No. 159/96, Union Interafricaine des Droits de l’Homme and Others v. Angola; Communications Nos. 27/89, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Others v. Rwanda; Communication No.71/92, Rencontre Africain pour la Défense des Droits de l’Homme v. Zambia; Communication 211/98, Legal Resources Foundation v. Zambia; Communication 292/2004, Institute for Human Rights and Development in Africa v. Angola; Communication No. 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea; and Communication No. 246/02, Mouvement ivoirien des droits humains (MIDH) v. Côte d’Ivoire. 4 See Communication No. 211/1998, Legal Resources Foundation v. Zambia. 5 Migration Policy Framework for Africa, EX.CL/276 (IX), AU Executive Council, Ninth Ordinary Session, 25-29 June 2006, Banjul, The Gambia, paragraph 3.7. 6 See Conference of African Ministers in charge of Border Issues, Report of the Meeting: Preventing Conflicts, Promoting Integration of the Preparatory Meeting of Experts on the African Union Border Programme, 4-5 June 2007, Addis Ababa, Ethiopia, BP/EXP/RPT (II). Our emphasis. [http://www.peaceau.org/uploads/ex-cl-352-xi-e.pdf] 7 See paragraph 5(I) of the Declaration on the African Union Border Programme and its Implementation Modalities, Addis Ababa, 7 June 2007 BP/MIN/Decl.(II), page 4. [http://www.peaceau.org/uploads/border-issues.pdf] 1. Introduction | 1