violated Charter guarantees not only of a fair hearing, but also of non-discrimination and equality before the law: [T]he movement of people in what had been the Central African Federation (now the States of Malawi, Zambia and Zimbabwe) was free and … by Zambia’s own admission, all such residents were, upon application, granted the citizenship of Zambia at independence. Rights which have been enjoyed for over 30 years cannot be lightly taken away. To suggest that an indigenous Zambian is one who was born and whose parents were born in what came (later) to be known as the sovereign territory of the State of Zambia may be arbitrary and its application of retrospectivity cannot be justifiable according to the Charter.277 Considering the problems of recognition of nationality faced in Côte d’Ivoire by those northern Ivorians and descendants of those who migrated during the colonial era (whether forced or voluntarily) from what is now a neighbouring country, the Commission stated that its view was that: [N]ationality as an ethnic, social and cultural unit poses a fundamental problem in the African context since the demarcation of borders inherited from independence has caused a split of entities of nationalities that existed before colonisation.278 Accordingly, the Commission took a historical approach to the analysis of the situation in Côte d’Ivoire, noting the need to “resolve, once and for all, the dramatic equation of imposing arbitrary borders on new sovereign African States at independence,”279 and concluding that: In short, with regard to discrimination against Dioulas [people of northern or immigrant origin], the Commission notes that it is based on their ethnic origin, consonance of their patronymics and their Muslim religious persuasion. On the one hand, discrimination implies two groups of Ivorian citizens who are treated differently on bases prohibited by the Charter. On the other hand, successive Governments of the Respondent State produced no objective and reasonable justification, while the Complainant showed evidence of a difference in treatment.280 More generally, the Commission stated, in the case brought by the Nubian Community in Kenya to the African Commission on Human and Peoples’ Rights, that: States may not discriminate in law or in practice when providing people with or depriving them of nationality.281 Both the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child have condemned Kenya’s practice of additional “vetting” applied to applications for identity documents made in certain districts where minority ethnic groups are known to live: The African Committee is not convinced, especially in relation to a practice that has led children to be stateless for such a long period of time, that the current discriminatory treatment of the Government of Kenya in relation to children of Nubian descent is “strictly proportional with” and equally importantly “absolutely necessary” for the legitimate state interest to be obtained. The Committee is of the view that measures should be taken to facilitate procedures for the acquisition of a nationality for children who would otherwise be stateless, and not the other way round.282 [T]he practice of requiring members of the Nubian community, simply because of their ethnic and religious affiliations, to meet different and more burdensome requirements in order to obtain identity documents is discriminatory and places them in a situation of extreme vulnerability as regards the exercise and enjoyment of their rights. 283 In its General Comment on birth registration and the right to nationality, the African Committee of Experts on the Rights and Welfare of the Child condemns discrimination in all rules relating to nationality, stating that: [A]ll criteria established by States relating to acquisition of nationality by children must not distinguish on the basis of “the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status”. Accordingly, the Committee recommends that those African States that have legal provisions that discriminate on any of these grounds should review them and replace them with non-discriminatory provisions.284 277 Legal Resources Foundation v. Zambia (Kenneth Kaunda case), Communication No. 211/98, 7 May 2001, para. 71., http://hrlibrary.umn.edu/africa/comcases/ Comm211-98.pdf. 278 OSJI v. Côte d’Ivoire, supra n 166, para. 99. 279 Ibid., para. 115. 280 Ibid., para. 151. 281 Kenyan Nubian children’s case v. Kenya, supra n 3, para. 116 282 Ibid., para. 57. 283 Ibid., para. 149. 284 ACERWC General Comment on art 6, supra n 55, para. 94. 70 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S