This principle is supported by the Protocol to the African Charter on the Right to a nationality, adopted in 2024, which provides that nationality should not be deprived from a person declared to have dual nationality without evidence that they do in fact hold another nationality. In some circumstances, denial of recognition of nationality may constitute arbitrary deprivation even if the person has never held documents recognising nationality. This is especially the case where nationality is denied on discriminatory grounds. The UNHCR Guidelines on Statelessness No. 5, on loss and deprivation of nationality, include denial of recognition or acquisition of nationality on discriminatory grounds within the rubric of arbitrary deprivation of nationality, stating that: [T]he prohibition of arbitrary deprivation of nationality encompasses both loss and deprivation of nationality, including where a State arbitrarily precludes a person or group from obtaining or retaining a nationality (e.g., on discriminatory grounds).297 One element of arbitrariness may be the vagueness of nationality law provisions, administrative procedures that are impossible to fulfil, and a lack of transparency in the criteria that are applied to determine if a person is or is not a national. Very often, procedural barriers provide a cover for discriminatory treatment (u section 7.3 and u section 7.4: Discrimination based on sex & gender and Discrimination based on race, religion, or ethnicity). In the Yean and Bosico case, for example, the Inter-American Court found that by denying late registration of birth based on failure to comply with onerous requirements that were not needed in the case of children under 13 years of age: the State acted arbitrarily, without using reasonable and objective criteria, and in a way that was contrary to the superior interest of the child, which constitutes discriminatory treatment…. This situation placed them outside the State’s juridical system and kept them stateless, which placed them in a situation of extreme vulnerability, as regards the exercise and enjoyment of their rights.298 Among the principles established by cases before the African human rights institutions are that: • Rules established for recognition of nationality may be invalid if they lack clear meaning and allow excessive discretion to the executive branch of government in their application.299 • If a person has ever held officially issued identity documents recognising him or her as a citizen of that country, the burden of proof shifts to the state to show that the person is not a citizen.300 • Where the systems for the registration of births or for the delivery of related documents are weak, the burden of proof that a person who claims to be a citizen is in fact a citizen must be shared between the person and that state in the event the required document is lacking.301 • If the refusal of a state to recognise nationality is on the grounds that the person concerned has acquired another nationality the state must show proof that this is true.302 • ‘Vetting’ procedures, such as those that exist in Kenya, will be considered arbitrary if they have no basis in law (making them prone to abuse), and place significant burdens on a minority ethnic group that are not applied to the majority population.303 • 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; this applies both in relation to a determination that a person is not a citizen and to a decision to expel him or her.304 • Where a person has a right to the nationality of the relevant country under existing law, the grant of nationality by naturalisation is not a suitable remedy for the previous denial of nationality.305 297 UNHCR, Guidelines on Statelessness No. 5, supra n 103, para. 9. See also para. 91: “Examples of arbitrary deprivation of nationality include the automatic withdrawal of nationality for an entire ethnic group through a judicial, legal or administrative action; the withdrawal of a person’s nationality without a fair trial before a court or independent body; and the denial of acquisition of nationality on discriminatory grounds.” 298 Case of the Girls Yean and Bosico, supra n 52, para. 166. OSJI v. Côte d’Ivoire, supra n 166, especially para. 112; Mouvement Ivoirien des Droits Humains v. Côte d’Ivoire, Communication No. 246/02, 29 July 2008, para. 86., https://achpr.au.int/fr/decisions-communications/mouvement-ivoirien-des-droits-humains-midh-cote-divoire. 299 300 Anudo v. Tanzania, supra n 109. 301 OSJI v. Côte d’Ivoire, supra n 166, para. 194. 302 Modise v. Botswana, supra n 296, para. 88. 303 Nubian Community v. Kenya, supra n 35, para 133. 304 Amnesty International v. Zambia, Communication No. 212/1998, African Commission on Human and Peoples’ Rights, decision of 5 May 1999, para. 33; Union interafricaine des droits de l’Homme and others v. Angola, Communication No. 159/1996, 11 November 1997, https://www.refworld.org/jurisprudence/caselaw/ achpr/1997/en/63295, African Commission on Human and Peoples’ Rights, decision of 11 November 1997, para. 19; Organisation Mondiale Contre la Torture and others v. Rwanda, Communications No. 27/89, 46/91, 49/91, 99/93; African Commission on Human and Peoples’ Rights, decision of 31 October 1996, Rencontre Africain pour la Défense des Droits de l’Homme v. Zambia, Communication No. 71/1992, 31 October 1996. https://www.refworld.org/jurisprudence/ caselaw/achpr/1996/en/92802, para. 30; Anudo Ochieng Anudo v. United Republic of Tanzania (merits) supra n 109, paras 112–116. 305 OSJI v. Côte d’Ivoire, supra n 166, para. 132. 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