Realising the Child’s Right to a Nationality in South Africa V UNDER THE NON-OPERATION OF ITS LAW — A CALL FOR DUE PROCESS Having regard to the laws discussed previously and the expansion thereof by the courts, one might be tempted to conclude that South Africa has no childhood statelessness problem. That would be wholly incorrect. Recent jurisprudence in the South African courts and also at the continental level has shed light on the devastating effect that a chronic lack of due process can have on the recognition of citizens or potential citizens. The African Court on Human and Peoples’ Rights in Anudo Ochieng Anudo v Tanzania (‘Anudo’)117 recently found that an arbitrary denial of citizenship amounts to an arbitrary deprivation of citizenship, which is prohibited by international law. The denial of nationality by way of burdensome, arbitrary and discriminatory application processes and decision-making, or the complete failure to make decisions or provide processes at all, is not unique to the African context but it is certainly common. In this context, the administration of nationality is as important (or as detrimental) to citizenship rights as the legislation and needs to be assessed. Despite South Africa’s laws and jurisprudence, the Government is failing children on account of its discriminatory practices and inefficient processes. The African Committee of Experts on the Rights and Welfare of the Child (‘Committee’) has addressed a similar situation emerging from the application of the law in Kenya in the Children of Nubian Descent case,118 and have subsequently released an extensive general comment on art 6 which has liberally expanded the opportunity for the application of this article.119 Although Kenya’s laws provide for the acquisition of citizenship by Nubians on the same basis as other Kenyans, additional hurdles of proof are placed in the way of Nubian children, leading to statelessness. The Committee found this to be a violation of art 3 (prohibition on unlawful/unfair discrimination) of the ACRWC.120 The Committee found that the additional hurdles for Nubian children leave them with no hope for obtaining proof of their citizenship. The same can be said for certain groups of children in South Africa. Every child has similar rights to citizenship but the BDRA makes it more difficult for some children to obtain proof of their citizenship in the form of a birth certificate, particularly for the children of migrants and children living outside of the outdated norm of the ‘nuclear family’.121 It is not the citizenship laws themselves but the belaboured system of proof which robs these children of the hope of obtaining citizenship. The lack of just administrative action or due process in respect of government decisions on citizenship has become one of the main causes of statelessness in 117 Anudo v United Republic of Tanzania (Judgment) (African Court on Human and Peoples’ Rights, App No 012/2015, 22 March 2018) (‘Anudo’). 118 Institute for Human Rights and Development in Africa and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v The Government of Kenya (African Committee of Experts on the Rights and Welfare of the Child, Decision No 002/Com/002/2009, 22 March 2011) (‘Children of Nubian Descent’). 119 African Committee of Experts on the Rights and Welfare of the Child, General Comment No 2 on Article 6 of the ACRWC: ‘The Right to a Name, Registration at Birth, and to Acquire a Nationality’, OAU Doc No ACERWC/GC/02 (2014) (7–16 April 2014). 120 Children of Nubian Descent (n 118) 12 [55]–[57]. 121 Paula Proudlock and Patricia Martin, ‘Children’s Rights to Birth Registration: A Review of South Africa’s Law’ in Paula Proudlock (ed), South Africa’s Progress in Realising Children’s Rights: A Law Review (Children’s Institute, University of Cape Town and Save the Children 2014) 7, 34 [8.11]. 275