CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Adopted children Most countries provide for children adopted from abroad to be able to acquire nationality. In some cases this is automatic when the formal adoption order is granted; in others, the parents of the child must apply for nationality on his or her behalf, and grant of nationality may then be awarded as of right, or subject to a discretionary decision (Table 3: Adopted children). The laws in Botswana (for children under three years old only), Eswatini, Mozambique, Namibia, South Africa, and Zambia, provide for automatic acquisition of citizenship through the adoption order. Mozambique introduced rights based on adoption only in the 2004 constitution, providing for automatic acquisition though the adoption order109, but the law and implementing decree have yet to be updated. In Zambia too, the constitution and the act conflict. In some countries, an application is required, but acquisition is in theory as of right: this is the case in Angola (since 2016), DRC, and South Africa. In Botswana the grant of citizenship is discretionary if the adopted child is older than three years old110, as it is in Lesotho for all adopted children. In Zimbabwe, the children’s code provides that adoption of a child who is not a citizen is only possible with the consent of the minister (while the constitution and the Citizenship Act conflict).111There is no provision relating to adoption in Comoros, Malawi, and Tanzania (although in Tanzania there is the possibility for naturalisation of the “minor child” of a citizen, which could be used to cover adopted children112). Gender discrimination applies in some countries in relation to adoption, even where it has been eliminated for attribution of citizenship at birth. The Mauritius Citizenship Act provides for citizenship to be automatically attributed at the time of an adoption order, but if it is a joint adoption, only if the male adopter is a citizen of Mauritius.113 In Zimbabwe the Citizenship Act has not been updated to remove discrimination in line with the constitution. In Madagascar, the general provision of the law on adoption provides for an adoptive child to have the right to acquire nationality by declaration, if resident in Madagascar for five years, without discrimination based on the sex of the adopting parent; the procedure can be the object of government opposition based on various grounds, including lack of integration and mental or physical incapacity.114 However, the nationality code additionally still provides for automatic acquisition of nationality through a “légitimation adoptive” if the adopting father is a national.115 109 Constitution of Mozambique 2004, art.29. 110 In 2015, the Botswana High Court ruled that Section 4(2)(d)(i) of the Adoption of Children Act was unconstitutional to the extent that it does not require the consent of the father in the adoption of his child born out of wedlock. See judgment in the case at the website of the Southern Africa Litigation Centre https://www.southernafricalitigationcentre.org/2015/02/02/botswana-ending-discrimination-in-adoption/. 111 Children’s Act Cap.5.06 (Children’s Protection and Adoption Act No. 22/1971, as amended), sec. 59(7). 112 Tanzania Citizenship Act 1995, sec. 10. 113 Mauritius Citizenship Act 1968, as amended, sec. 3. 114 Ordonnance n° 60 -064 du 22 juillet 1960 portant Code de la nationalité malgache, as amended, art. 17. 115 Ordonnance n° 60 - 064 du 22 juillet 1960 portant Code de la nationalité malgache, as amended, art. 21. There is no definition of légitimation adoptive and the interpretation of this article is not entirely clear, given the overlap with art.17 (on adoption generally). In the French law on adoption in effect at the time of Madagascan independence (reformed in 1958 and again in 1960), légitimation adoptive resulted from a court order that gave a child (under seven years old, whose parents were unknown or dead, or had abandoned the child) the status of a child born in wedlock to the adopting parents, and ended all legal connection with the family of origin. See Mauricette Craffe, ‘L’adoption et la légitimation adoptive en France depuis l’ordonnance du 23 décembre 1958’, Revue internationale de droit comparé 13, no. 3 (1961): 585–90. The French law was reformed in 1966 (Loi n° 66-500 du 11 juillet 1966 portant réforme de l'adoption) to rename légitimation adoptive as adoption plénière. 32 UNHCR / December, 2020