CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 nationality; or that, if their presumed other nationality is with a country that does not allow dual nationality, they have renounced that nationality.154 Congolese refugees who applied for citizenship in South Africa, were denied naturalisation because they were required to show proof of renunciation of DRC citizenship (on grounds that DRC does not permit dual nationality; although the Congolese law also provides for automatic loss on acquisition of another nationality).155 Most countries in southern Africa have no provisions specifically directed at naturalisation of refugees and stateless persons. Lesotho’s 1983 Refugee Act, however, provides that the minister may grant a refugee naturalisation, if qualified according to similar conditions to those established for other applicants, that fees shall be “minimal” in this case, and that the period of residence may be reduced.156 New refugee legislation adopted in Zambia in 2017 provides that “The Minister shall, as far as possible, facilitate the assimilation and naturalisation of persons who have ceased to be recognised refugees”.157 This provision does not meet the requirements of the 1951 UN Convention relating to the Status of Refugees for naturalisation to be facilitated for all refugees,158 but it does provide protection for those most at risk of statelessness – that is those who no longer have refugee status (for example, because it is now considered safe to return) and thus have no legal status in the country. By contrast, the law in Botswana specifically provides that a refugee is not regarded as being ordinarily resident (other than for the purposes of taxation), and thus excludes refugees from normal naturalisation procedures.159 (See further below: Naturalisation or recovery of nationality by long-term refugees and their descendants). Naturalisation procedures are usually left almost entirely to the discretion of the executive in both the civil and common law systems (see further below: Judicial and other oversight of administrative decisions). Many states provide that, although reasons must be provided for a decision that the person is not formally qualified to naturalise, a refusal to approve a naturalisation has no reasons attached and the decision cannot be challenged in court (among them, in southern Africa, Comoros, Eswatini, Lesotho, Madagascar, Seychelles, Zambia, and Zimbabwe). Discretion in naturalisation is illustrated by power given by almost all nationality laws for the executive to grant nationality in case of “exceptional services” rendered to the country or other similar criteria. In addition, the international trend for small islands to seek revenue through granting “citizenship by investment” was followed by Mauritius, which in 1999 raised the fee to US$500,000 for its existing provision for citizenship based on two years’ residence only; while Seychelles created the new option in 2013, for the price of one million dollars.160 Comoros took this to a higher level with its 2008 law on “economic citizenship” (see further below, ‘Economic citizenship’ in Comoros).161 154 South African Citizenship Act, 1995, as amended 2010, sec. (5)(1)(h). 155 Stefanie de Saude-Darbandi, “Inept Home Affairs creating a generation of children who don’t exist”, Cape Times / Independent Online (South Africa), 22 January 2018. This case (Mulowayi and others) was heard by the Constitutional Court, see footnote 144. 156 Refugee Act 1983, sec. 14 and schedule. 157 Refugees Act 2017, sec. 49. 158 Convention relating to the Status of Refugees, Art. 34. 159 Botswana Refugees (Recognition and Control) Act, Laws of Botswana, chapter 25:01. See Jonathan Klaaren and Bonaventure Rutinwa, “Towards the Harmonisation of Immigration and Refugee Law in SADC,” Migration Dialogue for Southern Africa (MIDSA), Report No.1, 2004, pp.90-91. 42 160 Seychelles Citizenship Act No. 18 of 1994, amended by Act 11 of 2013, sec.5C. 161 Loi n°08-014/AU relative à la citoyenneté économique en Union des Comores, promulgué par Décret n°08-138/PR du 13/12/2008. UNHCR / December, 2020