CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 The nationality code adopted in Madagascar included explicitly discriminatory transitional provisions, stating that persons with one or two parents of “Madagascan origin” were presumed to have Madagascan nationality; those with only one parent of “Madagascan origin” could decline that nationality, as could those with a civil status under “modern law”. The right to opt for Madagascan nationality was given to those from another member state of the “French Community”19 married to a Madagascan national, and French nationals, including those naturalised as French, who had their domicile in Madagascar at independence.20 In part, this discrimination in favour of those with connections to France was derived from pre-independence French decrees aimed at protecting French nationality from dilution through immigration to Madagascar from British-ruled Asia.21 The law did not include a provision for the automatic attribution of nationality to the second generation born in the country, whether before or after independence, a departure from the norm for the territories of French West and Central Africa (Afrique occidentale française and Afrique équatoriale française). The provisions based on descent for those born after independence discriminated on the basis of gender and birth in or out of wedlock. Comoros did not gain independence until 1975. A nationality code was adopted only in 1979, which provided that any person born in Comoros is Comorian, unless both parents are foreigners (étrangers) – leaving a great deal of room for interpretation as to who was to be regarded as “foreign”. The transitional provisions provided that those habitually resident in Comoros before 6 July 1975, the date of independence, could be naturalised on the basis of request within one year of entry into force of the new nationality code.22 In Angola and Mozambique, transitional measures favoured the automatic attribution of the nationality of the new state to those born or resident in the territory, as well as facilitating access to nationality by those who had fought against the Portuguese. In Mozambique, those domiciled in the country at independence acquired nationality automatically, while individuals who had participated in the liberation struggle were given the right to opt for Mozambican nationality, and nationality was excluded for people who had been members of “colonial-fascist political organisations”.23 Those born abroad also obtained nationality if either father or mother was Mozambican who had fought in the liberation struggle, but otherwise only if the father was Mozambican.24 An amendment to the law in 1982 introduced the possibility of reacquisition of nationality in “a spirit of clemency” towards those who had renounced Mozambican nationality in the immediate aftermath of independence.25 Angola provided for automatic attribution based on birth in Angola or to a person with a parent who was Angolan; for those who had given services to the national liberation struggle to be considered Angolans with full rights; and denied nationality to those who had committed crimes 19 The 1958 Constitution for the 5th French Republic provided for the free association of autonomous republics within a Communauté française, in which France was the senior partner. The Community as originally envisaged functioned only during 1959; however, it remained formally in existence until the relevant articles of the Constitution were repealed in 1995. Frederick Cooper, Citizenship between Empire and Nation: Remaking France and French Africa, 945–1960 (Princeton, N.J: Princeton University Press, 2014), chapters 6 and 7. 20 21 14 Ordonnance no. 1960-064 portant Code de la nationalité malgache, arts.90-92. Roger Decottignies and Marc de Biéville, Les nationalités africaines, Collections du Centre de recherche, d’étude et de documentation sur les institutions et les législations africaines 4 (Paris: A. Pedone, 1963), 14–25 & 201–10. 22 Loi No. 79-12 du 12 décembre 1979 portant Code de la nationalité comorienne, arts. 10 & 108. 23 Mozambique: Lei de 20 de Junho de 1975, arts. 3 and 7; Constitution 2004 art.23(1)(c). 24 Lei de 20 de Junho de 1975, art. 8. 25 Lei no.2.82 de 06 de abril de reaquisição de nacionalidade. UNHCR / December, 2020