CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Nationality transmitted by parents In Southern Africa today, gender neutrality in the right of a parent to transmit his or her nationality to a child is the norm, with only Eswatini providing for discriminating based on the sex of a parent (see Table 2: Nationality transmitted by parents). Discrimination based on ethnicity is, however, encoded in the laws of DRC, Eswatini, and Madagascar; and widespread in practice elsewhere. Children born in the country All southern African countries, with the exception of Eswatini, provide on paper for every child born in the country of one parent who is a national to be attributed nationality at birth, whether or not the parent is the father or mother, and whether or not the child is born in or out of wedlock. The most recent state to introduce gender equality was Madagascar, in 2017.90 Zimbabwe introduced gender equality in citizenship by descent from 1996; since 2009, the constitution has provided that a person born in Zimbabwe is attributed citizenship at birth if one parent or grandparent is or was a citizen.91 Reforms to provide gender equality are not retroactive in all cases: for example, in Botswana only those born after the 1995 amendment to the law have equal rights from father or mother.92 In the case of Eswatini, the law discriminates on the grounds of both gender and marital status. The child of a Swazi father born in the country is a Swazi citizen, whether born in or out of wedlock. The child of a Swazi mother and a non-citizen father has no right to Swazi citizenship if the parents were married; only if born out of wedlock and not claimed by the father is the child a citizen by birth.93 Several countries in Africa limit citizenship from birth to members of ethnic groups whose ancestral origins are within the particular state or within the African continent. Among the SADC states, nationality is legally linked to ethnicity in DRC, through a constitutional and statutory provision that nationality of origin is in the first instance attributed to “every person belonging to the ethnic groups of which the individuals and territory formed what became Congo at independence.”94 In Eswatini, the law does not specifically refer to ethnicity in relation to those born after the constitution came into force, but a strong ethnic preference is reflected in a reference in the constitution to “the class of persons generally regarded as Swazi by descent” and the provision of the 1992 Citizenship Act providing 90 Loi n°2016-038 modifiant et complétant certaines dispositions de l’Ordonnance n° 60-064 du 22 juillet 1960 portant Code de la nationalité malagasy, 25 January 2017. Art. 20 of the Code continues to provide, however, that a child born out of wedlock who is legitimized during his or her minority acquires nationality only if the father is a national (this happens automatically if the parents later marry and the child is recorded as a child of the marriage at that time). The 2017 reforms did not have retroactive effect; however, some children born before the reform have nonetheless been recognized as Malagasy (thanks to Focus Development Association for clarification on these points). 91 The current provision is set out in Constitution of Zimbabwe 2013, art. 25. This rule was first introduced in constitutional amendments adopted in 2009. Tthe Citizenship Act, however, has yet to be amended and still quotes in its preamble previous (discriminatory) constitutional provisions on citizenship by birth. 92 Botswana Citizenship Amendment Act No.14 of 1995, amending sections 4 and 5 of the Citizenship Act No. 25 of 1982. 93 Constitution of the Kingdom of Eswatini, 2005, art. 43; Citizenship and Immigration Act No.14 of 1992 secs. 6 and 7. 94 « Est Congolais d’origine, toute personne appartenant aux groupes ethniques dont les personnes et le territoire constituaient ce qui est de venu le Congo (présentement la République Démocratique du Congo) à l’indépendance » ; Constitution de la République Démocratique du Congo, 2006, art.10 ; Loi n°.04/024 du 12 novembre 2004 relative à la nationalité congolaise, art.6. 26 UNHCR / December, 2020