CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Comoros and Mauritius appear to restrict this protection to abandoned newborn infants (and the law is in fact not clear that the protection exists). Other laws have the more open wording of “children of unknown parents”, while Eswatini, Zambia and Zimbabwe have all provided that older children whose parents are not known are to be presumed citizens, up the age when found of 7 (Eswatini), 8 (Zambia) or 15 (Zimbabwe). Angola, DRC, Lesotho, Malawi, Mozambique, Namibia, and South Africa all have safeguards in law for children born in the territory who would otherwise be stateless, although some of these depend on application rather than providing a legal entitlement. But even where the protection is automatic in theory, it is generally not implemented in practice: in the case of South Africa, the Department of Home Affairs has refused to obey Supreme Court orders that citizenship be granted to a child of Cuban parents who has no right in law to acquire the parents’ nationality. Ethnic or racial discrimination creates particular risks of statelessness. DRC creates a presumption of nationality for members of the “ethnic groups of which the individuals and territory formed what became Congo at independence”, leaving many with doubtful status, above all the Banyarwanda of eastern DRC. In Eswatini, a strong ethnic preference is reflected in a reference in the constitution to “the class of persons generally regarded as Swazi by descent”; while Madagascar’s descent-based law, coupled with transitional provisions in favour of persons of “Madagascan origin” at independence creates the presumption that those not of “Madagascan origin” are not nationals. No SADC Member State has in place a system for the identification and protection of stateless persons, although several states have adopted national action plans that would enable this and other measure to be put in place. The minimum legal reforms required by international law are the attribution of nationality to children born in the territory of a state who cannot acquire nationality from one of their parents, and to children found in the territory whose parents are not known. The African Committee of Experts recommends stronger protections against statelessness, including automatic attribution of nationality to a child born in the territory of one parent also born there, and the right to acquire nationality for a child born in the territory who remains resident during his or her childhood, at the latest at majority. Due process and transparency Excessive executive discretion in deciding questions of nationality creates major risks of statelessness and violations of other rights. The common law countries have inherited a tradition of excessive executive discretion. In Tanzania, the law still provides that the decision of the minister is final in immigration and citizenship matters, explicitly excluding court review. While other Commonwealth states have changed this rule as new constitutions have been adopted, and provide a right of access to the courts, the procedure of judicial review is difficult to access. The procedure for appealing a decision to refuse to recognise nationality is more straightforward in the civil law states, where the procedure for contestation of nationality decisions is often set out in the nationality code itself. However, in all cases access to independent court review may be difficult and too expensive in practice. 4 UNHCR / December, 2020