CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 long-standing regime in Britain itself, codified for the first time in the British Nationality Act of 1948. A child born in the territory after independence was thus a citizen from birth as of right, subject to the exception that this did not apply if the father was entitled to diplomatic immunity or was an enemy alien, unless the mother was a citizen.16 Provision was made for citizenship by descent for those not born in the country, but only if the father was a citizen at the time of the birth, and limited to one generation of transmission to those born outside. Southern Rhodesia (later Rhodesia, and today Zimbabwe) was a self-governing territory and had its own nationality law from 1949 (the Southern Rhodesian Citizenship and British Nationality Act, 1949; replaced after the period of the Central African Federation17 by the Citizenship of Southern Rhodesia and British Nationality Act 1963). The 1979 constitution of newly democratic Zimbabwe provided for continuity of citizenship, and for those born after the act came into force it re-enacted the citizenship provisions already in existence without major revision. The absolute jus soli rule in place in 1949 had already been modified, and acquisition of citizenship based on birth in the territory applied only if the father of the child (or, if out of wedlock, the mother) was a citizen or ordinarily resident and legally present in Zimbabwe. South Africa also had its own citizenship law from 1949, amended during the apartheid era. The interim constitution of 1993 restored citizenship to Black South Africans, as it abolished the homelands and established new administrative provinces.18 A new South African Citizenship Act was adopted in 1995 that provided for continuity of citizenship, retained rights to citizenship based on birth in South Africa for the children of permanent residents as well as citizens, and created new protections against statelessness (with the notable omission of a provision for children of unknown parents and place of birth). The new government also granted a series of amnesties to several categories of migrants and refugees, recognising the role of the apartheid regime in driving long-distance labour migration and stoking conflict in the region (see below: Naturalisation of long-term migrants and their descendants). Although South Africa had never accepted the authority of the UN Trusteeship Council over South West Africa, a UN-brokered agreement ultimately led to the independence of Namibia in 1990. The new constitution and citizenship act did not contain explicit transitional provisions, but established a relatively open regime for citizenship with transitional rights based on ordinary residence in Namibia, and, for those born after the date of independence, attribution of citizenship to children born in Namibia of parents who are ordinary residents. In both the former French and Portuguese territories, nationality was left to the new states rather than negotiated. Gaps between the date of independence and the adoption of a nationality code could leave uncertainty about the status of those born during that period, while transitional provisions were often incomplete. 13 16 For example: “Every person born in Botswana on or after 30th September, 1966 shall become a citizen of Botswana at the date of his birth: Provided that a person shall not become a citizen of Botswana by virtue of this section if at the time of his birth if (i) neither of his parents is a citizen of Botswana and his father possesses such immunity from suit and legal process as is accorded to the envoy of a foreign sovereign power accredited to Botswana; or (ii) his father is a citizen of a country with which Botswana is at war and the birth occurs in a place then under occupation by that country.” Constitution of Botswana 1966, sec. 21. 17 The Central African Federation existed from 1953 to 1963 and linked Southern Rhodesia (today’s Zimbabwe), Northern Rhodesia (Zambia) and Nyasaland (Malawi). 18 The National Party government had already partially restored citizenship by an act adopted in 1986: see Bently J. Anderson, “The Restoration of The South African Citizenship Act: An Exercise in Statutory Obfuscation”, Connecticut Journal of International Law 9 (1994): 295–323. UNHCR / December, 2020