CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Member State, and the parent was ordinarily resident in Zimbabwe; but the constitution did not restore the right to citizenship for children of any legally resident parent that had existed until 1996.47 In South Africa, the rules applied since amendments to the law in 2010 came into effect are that a child born in the country of parents who are permanent residents can apply for citizenship at majority,48 while a child born in the country of parents who were not permanent residents also qualifies to naturalise as a citizen if he or she remains resident in the country at majority.49 These rights are subject to the child’s birth being registered according to the law, a condition not applied to citizenship derived from a parent.50 In a number of court cases brought on behalf of applicants fulfilling these criteria, the Department of Home Affairs argued that the right to naturalise applied only to children born after 2013 rather than children who turned eighteen years old after 2013.51 Both the High Court52 and the Supreme Court53 dismissed the arguments of nonretroactivity and ordered the adoption of regulations. The UN Committee on the Rights of the Child has also criticised South Africa for setting “disproportionately strict conditions for granting the nationality of the State party on certain groups of children”.54 Applicants ordered to be naturalised by the Supreme Court of Appeal were naturalized in 2019, as ordered by the court.55 In July 2020, the Department of Home Affairs published draft amendments to the citizenship regulations56 responding to the various court judgments. However, civil society organisations criticised the draft amendments for failing to implement the substance of the court orders and for leaving some children at risk of statelessness.57 In Zambia, where rights based on birth in the territory had been reduced in 1973 and removed in 1991, the new constitution of 2016 created the right “to apply to be registered as a citizen” on attaining majority for a person born in Zambia and ordinarily resident there for at least five years.58 47 Constitution of Zimbabwe, 2013, art. 43(2). See discussion in Bronwen Manby, “Draft Zim constitution fails citizenship test”, OSISA/Citizenship Rights in Africa (blog), 11 October 2012 http://citizenshiprightsafrica.org/draft-zim-constitution-fails-citizenship-test/. 48 South African Citizenship Amendment Act No.17 of 2010, amending section 2 of the principal act on citizenship by birth. See discussion in Christine Hobden, “How South Africa Has Squeezed Options for Migrants over 25 Years”, The Conversation (blog post), 15 December 2019, http://theconversation.com/how-south-africa-has-squeezed-options-for-migrants-over-25-years-128257. 49 South African Citizenship Amendment Act No.17 of 2010, amending section 4 of the principal act on citizenship by naturalisation. The different between being born in the country of parents who are permanent residents and those who are not is thus slight, resting on the greater discretion given to the state in case of citizenship by naturalisation. 50 51 South African Citizenship Act, 1995, as amended to 2010, sec. 2(3) and 4. The 2010 amendments came into force on 1 January 2013. Christine Hobden, “The case of Chisuse and Others versus Department of Home Affairs (CC:155/19)”, GlobalCit (blog post) 14 April 2020 http://globalcit.eu/the-case-of-chisuse-and-others-versus-department-of-home-affairs-cc155-19/ 52 Miriam Ali and others vs Minister of Home Affairs, Case number 15566/2016, High Court of South Africa, Western Cape Division, Cape Town, Judgment of 7 September 2017; Joseph Emmanuel José and Jonathan Diabaka “Junior” vs. Minister of Home Affairs and others, Case No.38981/17, High Court of South Africa (Gauteng Division), [2019] ZAGPPHC 88, 15 March 2019. 53 Minister of Home Affairs and Another vs. Miriam Ali and others, Case No.1289/17, Supreme Court of Appeal, South Africa, Judgment of 30 November 2018. 54 UN Committee on the Rights of the Child, Concluding Observations on the Second Periodic Report of South Africa, CRC/C/ZAF/CO/2, 27 October 2016. 55 Information from Lawyers for Human Rights, May 2020 (Miriam Ali Case). 56 South African Citizenship Act (88/1995): Publication of the Draft Regulations on the Citizenship Act, 1995 for Comments, South African Department of Home Affairs, Government Gazette Vol. 661 (no. 43551), 24 July 2020. 57 See comments from the Scalabrini Centre of South Africa and others, 31 August 2020, available at http://citizenshiprightsafrica.org/written-commentson-the-draft-amendment-regulations-on-the-south-african-citizenship-act-1995/. 58 20 Constitution of Zambia (Amendment) Act No.2 of 2016, art. 37. UNHCR / December, 2020