CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Protection against statelessness The constitutions of both Lesotho and Zimbabwe provides an absolute prohibition on deprivation of nationality if the person would become stateless: the Lesotho constitution gives power to parliament to provide for deprivation from a naturalised citizen “unless he would thereby become stateless”;175 while the article of the Zimbabwe constitution of 2013 dealing with revocation states that “Zimbabwean citizenship must not be revoked … if the person would be rendered stateless.”176 The Mauritius Citizenship Act similarly states that “The Minister shall not deprive any person of his citizenship if it appears to him that the person would become stateless”.177 There are several countries that provide partial protection. Namibia appears at first sight to prohibit deprivation of nationality from a person who would thereby become stateless, but then states that this is “unless the minister is satisfied that it is not conducive to the public interest that the person should continue to be a Namibian citizen”.178 Eswatini includes a statement only that the decision to deprive nationality “shall endeavour not to render the person stateless”.179 Seychelles provides protection against statelessness only in case of deprivation on grounds related to treason, terrorism and disloyalty (introduced in 2013), but not in case of fraud.180 However, those in groups at risk of statelessness are most likely to be those who have had to acquire documents fraudulently – even if they are legally entitled to them – rendering the protection against statelessness perhaps especially important in these cases. In South Africa and Zimbabwe, the constitution and the law conflict on this point. As already noted, the Citizenship Act in South Africa provides for deprivation of citizenship despite a constitutional prohibition to the contrary; the Act includes protections against statelessness within its deprivation provisions, except in the case of naturalised citizens who fight “in a war the Republic does not support”, or where naturalisation was obtained by fraud.181 Zimbabwe’s constitution prohibits deprivation in case of statelessness, and the law also includes a provision on avoiding statelessness; but the law’s next subsection removes the protection by stating that the minister can still revoke naturalised citizenship if “he is satisfied that it is not conducive to the public good that the person should continue to be a citizen of Zimbabwe.”182 Amongst the most problematic provisions are those permitting deprivation of nationality of children if a parent is deprived, potentially punishing the child for the fault of the parent and leaving the child at great risk of statelessness. This is the case in Namibia (if the child is a citizen by registration or naturalisation); South Africa (for children born outside the country, and “with due respect to the Children’s Act”), and 175 Constitution of Lesotho 1993, as amended, art. 42 176 Constitution of Zimbabwe 2013, art.39 177 Mauritius Citizenship Act 1968, as amended, sec.11(3)(b) and 11(4)(b). 178 Namibian Citizenship Act, 1990, sec. 9(4). The Namibian courts have affirmed that the provision in Article 4(8)(b) of the Namibian constitution allowing government to enact legislation depriving people serving in foreign forces of their citizenship was subject to the specific proviso in the constitution that a citizen by birth cannot be deprived of citizenship. See summary of Alberts v Government of Namibia & Another, 1993 NR 85 (HC) available at http://www.hrcr.org/safrica/citizenship/alberts_gov.html and references at footnote 129. 179 Constitution of Swaziland 2005, art. 49(5). 180 Seychelles Citizenship Act 1994, as amended, sec. 11A(6). 181 South African Citizenship Act 1995, as amended, secs. 6 and 8; Zimbabwe Citizenship Act 1984, as amended, sec. 12. 182 Citizenship of Zimbabwe Act 1984, as amended, sec. 11(3). UNHCR / December, 2020 51