CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 The right to a nationality in the African human rights regime The African Charter on Human and Peoples’ Rights and the jurisprudence of the African Commission The African Charter on Human and Peoples’ Rights has no explicit provision on nationality. However, many other articles are relevant, including the prohibition of discrimination and the right to equality before the law in general.476 Despite the lack of an explicit provision on nationality in the African Charter, the African Commission has heard many cases that are founded on the denial or deprivation of nationality. Several of these cases have originated in southern Africa. In these cases, the African Commission has held that Article 5 of the Charter, which provides that “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status”, applies specifically to attempts to denationalise individuals and render them stateless, in light of the consequences that flow from statelessness. In addition, the Commission has held that Article 7(1)(a), with its reference to “the right to an appeal to competent national organs”, includes both the initial right to take a matter to court, as well as the right to appeal from a first instance decision to higher tribunals. In several cases relating to deportations or denial of nationality, the Commission has held that the fact that someone is not a citizen “by itself does not justify his deportation”; there must be a right to challenge expulsion on an individual basis.477 Founding its decisions on Articles 2 and 7 as well as Article 12, the Commission has ruled against Angola, Guinea and Zambia in cases relating to individual deportations or mass expulsions on the basis of ethnicity, commenting that mass expulsions “constitute a special violation of human rights.”478 Thus, in the long-running case of John Modise, who spent years confined either to the South African “homeland” of Bophuthatswana or the no-man’s land between South Africa and Botswana because of the Botswanan government’s refusal to recognise his nationality from birth, the Commission found against the Botswanan government and ruled, among other conclusions, that Modise’s “personal suffering and indignity” violated Article 5 of the African Charter.479 Similarly, in Amnesty International v. Zambia, the Commission considered the deportations of William Banda and John Chinula from Zambia to Malawi and found that “[b]y forcing [the complainants] to live as stateless persons under degrading conditions, the 476 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted in 2003, contains strong antidiscrimination measures, but allows national law to override the non-discrimination presumptions of the treaty in relation to passing citizenship to children, and does not provide for the right of a woman to pass citizenship to her husband. See Art. 6 (g): a woman shall have the right to retain her nationality or to acquire the nationality of her husband; (h) a woman and a man shall have equal rights with respect to the nationality of their children, except where this is contrary to a provision in national legislation or is contrary to national security interests. 477 Amnesty International v. Zambia, para. 33. See also Communication No. 159/96, Union Interafricaine des Droits de l’Homme and Others v. Angola (1997); Modise v. Botswana; Communications Nos. 27/89, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Others v. Rwanda (1996); Communication No. 71/92, Rencontre Africain pour la Défense des Droits de l’Homme v. Zambia (1996). 478 Union Interafricaine des Droits de l’Homme and Others v. Angola, paragraph 16. See also Communication No. 292/2004, Institute for Human Rights and Development in Africa v. Angola (2008); Rencontre Africaine pour la Défense des Droits de l’Homme v. Zambia; Communication No. 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea (2004). 479 Modise v. Botswana, Communication No.97/93, African Commission on Human and Peoples’ Rights, 2000, para. 91. UNHCR / December, 2020 108