The Impact of Gender Discrimination on Statelessness
is to celebrate a continued compartmentalization [of] gender issues that instead
ought to be treated as structural and all-pervasive’.121 From a feminist perspective,
it is important that these gender-based normative shortcomings are recognised and
their impact on ongoing statelessness advocacy, policy, and research considered.
IV. CURRENT DEVELOPMENTS ON GENDER AND
STATELESSNESS IN SOUTHERN AFRICA
(a) Selected African regional human rights law and policy developments
There are no laws that are binding on all member states of the African Union (AU)
that expressly address statelessness or statelessness through the lens of gender. Core
instruments in the regional human rights system in Africa do include protections
for nationality rights, gender equality, and non-discrimination on the basis of sex.
While it guarantees non-discrimination on the basis of sex, the African Charter on
Human and Peoples’ Rights (ACHPR)122 does not specifically refer to the right to a
nationality. However, in practice, in its jurisprudence the African Commission has
linked the right to a nationality to other rights protected under the Charter, including
the prohibition of discrimination (article 2) and equality before the law (article 3).123
The African Charter on the Rights and Welfare of the Child (ACRWC), article 6(3),
affirms the right of all children to acquire a nationality, as well as non-discrimination
on the basis of sex.124
Also importantly, the Protocol to the African Charter on Human and Peoples'
Rights on the Rights of Women in Africa (Maputo Protocol), aims to ensure the
protection and realisation of the rights of women ‘in order to enable them to enjoy
fully all their human rights’.125 Article 2(1), states that ‘States Parties shall combat all
forms of discrimination against women through appropriate legislative, institutional
and other measures’. Article 6 of the Maputo Protocol highlights the issue of equality
between men and women in the context of marriage, and addresses the issue of
nationality, and this consequently raises the issue of statelessness. Article 6(g)
expressly states that women have the right to retain their nationality or acquire that
of their husband. The Maputo Protocol also affirms that women and men have equal
rights with respect to nationality of their children, although this protection is limited
in cases ‘where this is contrary to a provision in national legislation or is contrary to
national security interests’ (article 6(h)). Unfortunately, this caveat essentially allows
121
Brennan op cit note 9 at 175.
African Charter on Human and Peoples’ Rights (ACHPR) ‘OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58’ (1982).
LH Muller ‘Legal identity for all – ending statelessness’ in Goal 16 of the sustainable development goals, Perspectives
from judges and lawyers in Southern Africa on promoting rule of law and equal access to justice, (1 December 2016)
at 141, available at www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/GOAL-16-Book-Muller.pdf,
accessed on 12 May 2022.
124
ACRWC op cit note 48.
125
ACHPR ‘Protocol to the Charter on the Rights of Women in Africa 2003, Assembly/AU/Dec 14(II) (Maputo Protocol)’, Article 6(g).
122
123
33