CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Right to transmit nationality to a spouse Achieving gender equality in the right of a woman to pass citizenship to her husband has proved more difficult than ensuring nationality for children on a gender-neutral basis. More than two dozen countries in Africa today still do not allow women to transmit nationality to their spouses or apply discriminatory residence qualifications. In southern Africa these countries are Comoros, Eswatini, Madagascar, Malawi and Tanzania (see Table 4: Transmission of nationality to spouses). Lesotho was the most recent to amend its law to provide for equal rights, in 2018.116 In the case of Malawi, the grant of nationality to spouses remains highly discretionary, so that it hardly gives any additional rights over naturalisation. Moreover, the Citizenship Act additionally requires every female Malawian citizen who marries a non-Malawian citizen and acquires another citizenship to formally state her intention to either retain her Malawian citizenship and renounce any foreign citizenship acquired by virtue of her marriage or lose her Malawian citizenship (section 9). There is no equivalent requirement in respect of male Malawian citizens. Eswatini specifically provides that a foreign woman who acquired Swazi citizenship through marriage may be deprived of that citizenship where the marriage was entered into merely for the purpose of acquiring citizenship (in other countries this eventuality might be covered by provisions on fraud).117 In Mozambique the constitution is gender neutral, but the nationality law has yet to be amended to conform to the superior law, and still provides that women married to Mozambican men (but not vice versa) acquire nationality if they renounce their former nationality.118 In other cases, marriage provides no, or very limited, access to nationality beyond that of any other foreigner. In Botswana, Zambia and Zimbabwe the struggle of women to obtain equal rights successfully removed discrimination in the grant of citizenship to spouses — but only to put a spouse on the same conditional terms as other applicants for naturalisation, or simply reducing the period of residence required (in the case of Botswana and Zimbabwe). In Zambia, the 2016 constitution restored some rights based on marriage, on a gender-equal basis, but at the discretion of the authorities.119 Zimbabwe’s 2013 constitution reduced the period of residence in case of marriage compared to other foreigners, but makes acquisition of citizenship subject to satisfaction of conditions to be established in law (yet to be amended by mid-2020).120 In DRC, marriage provides no right to nationality in itself: an application for citizenship by marriage must be approved by decree of the Council of Ministers and considered by the National Assembly.121 In 2010, Namibia amended its constitution to change the period for acquisition of citizenship by marriage from two to 10 years.122 South Africa requires that a spouse be admitted for permanent residence (which usually takes a minimum of five years but may be issued immediately to a spouse) in addition to a minimum period of marriage — the original act provided for a two year period of marriage and ordinary residence in 116 8th Amendment to the Constitution Act, No.8 of 2018. 117 Constitution 2005, art. 49(2). The constitution also makes specific provision for (voluntary) renunciation of Swazi citizenship in case of women who are or are about to be married to a citizen of another country. 34 118 Constitution 2004, art.26; Nationality law 1975, as amended, art.10. 119 Zambia Constitution 2016, art. 37(2); Zambia Citizenship Act 2016, sec. 18. 120 Zimbabwe Constitution 2013, art. 38. 121 Loi No.04/024 du 12 novembre 2004 relative à la nationalité congolaise, art. 19. 122 Namibian Constitution Second Amendment Act, 2010 (Act No. 7 of 2010), sec. 1. UNHCR / December, 2020