CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 new-born infants. However, the law retains the previous restriction of protection to those children where “one can presume that at least one parent is Malagasy”, based on the name, physical characteristics, and other aspects of the child’s environment, opening the door to arbitrary discrimination.66 In southern Africa, Botswana, Lesotho, Malawi, Namibia, Seychelles, South Africa and Tanzania do not have this most basic protection against statelessness for children found in their territory of unknown parents. While there may be other routes to recognition of citizenship for such children67, these depend on an application and may be difficult to access. The UN Committee on the Rights of the Child has deplored the lack of protections against statelessness for children of unknown parents, for example in its concluding observations of 2018 on the state report of Seychelles.68 In Comoros and Mauritius the situation is not clear: amendments to the citizenship laws have not included consequential amendments to clarify the situation of children of unknown parents. In Comoros, Article 10 of the nationality code provides that any person born in Comoros is Comorian, unless both parents are foreigners; Article 13 provides that birth and descent must be proved by civil registration, but that a child found in Comoros is presumed born there unless there is proof to the contrary. The combination of the two provisions would create a presumption of nationality for foundlings, if the parents were not shown to be foreigners, but the law should be clearer on the point.69 In Mauritius, the Citizenship Act provides that “a new born child found abandoned within Mauritius shall, unless the contrary is shown, be deemed to have been born within Mauritius”.70 This would have provided protection against statelessness – albeit only for new-born infants and not older children – until 1995, when jus soli attribution of citizenship based on birth in Mauritius was repealed in favour of a descent-only system. The current situation is not clear. The Child Protection Act creates an offence of inciting abandonment of a child but does not protect the rights of an abandoned child to Mauritian citizenship.71 Mozambique also creates a confusion by an error in agreement of adjectives in the constitution;72 however, the nationality law has the correct agreement, making clear the intention to protect children of unknown parents born in Mozambique – although it does not create a presumption of birth in Mozambique for children found in the territory.73 The implementing decree states that the presumption of Mozambican nationality will 66 Ordonnance n° 60-064 du 22 juillet 1960 portant Code de la nationalité Malagasy, as amended by Loi n°2016-038, art.11. 67 For example, under section 18 of the Malawi Citizenship Act, providing for registration of stateless persons; while the National Registration Act and regulations provide for registration of new-born children found in the territory National Registration Act No.13 of 2010, sec. 26; National Registration Regulations 2015, regulation 5(b), 22(b) and 23(b)). 68 UN Committee on the Rights of the Child, “Concluding observations on the combined fifth and sixth periodic reports of Seychelles”, CRC/C/SYC/CO/56, 5 March 2018. 69 Loi n° 79-12 du 12 décembre 1979 portant Code de la nationalite comorienne, arts.11 and 13. 70 Mauritius Citizenship Act No. 45 of 1968, as amended, sec. 2(e). 71 Child Protection Act No.30 of 1994, as amended, sec. 13B. 72 Section 23(1)(b) provides that Mozambican nationality is attributed to those born in Mozambique “de pais apátridas, de nacionalidade desconhecida ou incognita”, for which the English translation would be “of parents who are stateless or of unknown or unknown nationality” (desconhecida and incognita are synonyms for unknown); for the sense, this should read “de pais apátridas, de nacionalidade desconhecida ou incognitos”, that is “of parents who are stateless, of unknown nationality, or unknown”. See discussion in Jerónimo, “Report on Citizenship Law: Mozambique”, 25–26. 73 22 Lei de 20 de Junho de 1975 (alterada pela Lei no.2.82 de 06 de Abril & pela Lei No. 16/87 de 21 de Dezembro), art.1(1)(b). UNHCR / December, 2020