CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Angola, Botswana, Eswatini, Malawi, Mauritius, Seychelles and Zimbabwe no longer provide in law for any general right to acquire citizenship based on birth in the territory – though all have done so in the past. The date of birth of a person or their ancestor will in these cases be critical to establish whether birth in the territory conferred nationality automatically, and therefore that the descendant is also a national. In Zimbabwe, Section 43 (1) of the Constitution, as interpreted by the Constitutional Court and High Court, has confirmed this right for persons born in the territory between 1890 and 1963.59 Foundlings: children of unknown parents The presumption of citizenship for children of unknown parents is one of the oldest in international law relating to nationality, dating back to 1930.60 Article 2 of the 1961 UN Convention on the Reduction of Statelessness provides the same protection, stating that: “A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State”. UNHCR’s guidance is that this protection should be interpreted at least to “apply to all young children who are not yet able to communicate accurately information pertaining to the identity of their parents or their place of birth.”61 The independence constitutions of Commonwealth African states did not include this protection (which was not added to British law until 196462; though in the UK there was a presumption in practice of citizenship). However, many states have introduced the presumptions in favour of children of unknown parents during constitutional reforms from the turn of the millennium. In southern Africa, Eswatini, Zambia, and Zimbabwe have all added provisions for children of unknown parents to be presumed to be citizens, if when found they are believed to be under the age of 7, 8, or 15, respectively. Zambia’s Citizenship Act 2016, implementing the new constitutional presumption of citizenship for foundlings, establishes a procedure for the government agency responsible for matters relating to children to present the child to the Children’s Court and take out proceedings for the determination of the age, nationality, residence and the parentage of the child.63 Angola provides for the child of unknown parents to have the right to apply for nationality, and a presumption of nationality in the case of abandoned infants; the distinction between these two situations creates some confusion in the implementation of the law;64 however, the definition of “abandoned child” in the Angolan Civil Registration Code covers both new-born babies and children up to 14 years of age.65 In 2017, modifications to the Madagascar nationality code established that any child of unknown parents found in Madagascar would be presumed to have been born there, removing the previous restriction to 59 Christina Janet Veitch v Registrar General of Citizenship & Ors HH – 422 – 19. With thanks to Tafadzwa Ralph Mugabe for this reference. 60 Convention on Certain Questions Relating to the Conflict of Nationality Laws, The Hague, 1930, art. 14. 61 UNHCR, “Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness” (Geneva: United Nations, December 2012), para. 58. 62 British Nationality Act No. 2 of 1964, sec. 2 (Additional grounds for citizenship by birth). 63 Citizenship of Zambia Act No.33 of 2016, sec. 16. 64 Lei No.2/16 de 15 de avril, art. 9 &15; Decreto Presidencial n.º 152/17, de 4 de Julho, regulamento da Lei da nacionalidade, art. 4. See Patrícia Jerónimo, “Report on Citizenship Law: Angola” (Fiesole: Global Citizenship Observatory (GLOBALCIT), April 2019). 65 21 Código do Registo Civil - Decreto-Lei n.º 47 678, de 5 de Maio de 1967, art.133. UNHCR / December, 2020