CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Nationality administration in practice The systems for proof of nationality are in practice often as important as the provisions of the law for the avoidance of statelessness. If there are onerous requirements or costs attached to proof of nationality, or discrimination in practice means that proof is not obtainable, then the fact that a person actually fulfils the conditions laid down in law may be unrecognised. A particular challenge is created when different laws conflict: especially when the constitution and the nationality law establish different rules – for example in relation to gender discrimination, or dual nationality. This is the case in Zimbabwe, where the 2013 constitution establishes new rules, but the Citizenship Act was last updated in 2003 (see above: Dual nationality). In principle, the constitution is a superior source of law, in practice, however, administrative procedures tend to follow the outlines established in the law and its regulations. While a person with resources and access to lawyers may be able to challenge the application of the law as unconstitutional, and get a decision overturned, such remedies are inaccessible to most people. It is even more challenging when two laws of equal status conflict: when there are differences between the nationality code and, for example, the civil registration law; or laws on children’s rights, marriage or the family; or establishing a national identity card; or providing for passports. In these circumstances, it can be the case, for example, that the nationality law provides for equal rights of men and women to transmit nationality to their children; but the civil registration law discriminates on the basis of gender in relation to the rights to register a child; or the family law establishes rules on recognition of children born out of wedlock that create obstacles in practice to recognition of nationality; or the law on the national identity card establishes evidential requirements for proof of nationality that are not justified in the nationality law. In practice, moreover, officials rely on the regulations implementing the laws to establish the specific requirements in relation to documents that must be produced, or conditions that must be satisfied before an identity document recognising nationality can be issued. In some cases, these regulations have not been updated to reflect new laws, or, even if they have been, continue to apply rules that are no longer authorised by the primary legislation. This is the case in Zambia for example (see above: Dual nationality; Adopted children; and Acquisition of nationality by naturalisation or registration) . These legal confusions create, in practice, a large degree of discretion in the application of the law by the executive branch. Even though a person may appear to be a national based on interpretation of the constitutional or primary legislation, the law may be significantly adjusted in its application in fact. Determining whether any particular individual is stateless may require multiple attempts to obtain recognition of what appears to be a straightforward right to a document recognising nationality, whether in one or more countries. UNHCR / December, 2020 57