CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Gender discrimination in the rules for registration of births is an important barrier to universal birth registration. In Eswatini, Namibia and Seychelles a mother can legally register a child only when the father is dead, absent, or incapable.218 In case of a child born out of wedlock, it is usually the case that the father must recognise the child – or be ordered to do so by a court – for his name to be entered on the birth register. This is the case for example in Lesotho, Madagascar, Malawi, Tanzania, Zambia, and Zimbabwe.219 In these cases, even though in principle either the mother or father may declare a birth, fathers may sometimes not be able to register the birth of a child if born out of wedlock, even if they wish to recognise it. In South Africa, the law on birth registration differentiates between children born within and outside of marriage, and regulations provide that a child born out of wedlock can only be registered by the mother.220 The regulations also distinguish between the children of South African citizens and the children of foreigners.221 The Public Protector has found that the Department of Home Affairs’ failure to register a the birth of a child with a South African father and non-South African mother was “procedurally and substantively flawed” and in violation of the constitution.222 The High Court has heard a number of cases challenging these rules, ordering that the details of the South African father be entered on the birth certificate for a child born out of wedlock to a non-South African mother and the child declared to be a South African citizen;223 and that a single father be permitted to register a birth.224 In May 2020, the full bench of the High Court confirmed this position on appeal, ruling that Section 10 of the Births and Death Registration Act was invalid and inconsistent with the Constitution.225 Lawyers for Human Rights and the Centre for Child Law filed an application for the Constitutional Court to confirm this judgment.226 In 2018, the Botswana Ministry of Nationality, Immigration and Gender Affairs finally agreed to a consent order approved by the High Court to register within seven days the birth of a child born seventeen years august-2019-vol-45-no-80; Zimbabwe Human Rights Commission, “Report on National Inquiry on Access to Documentation in Zimbabwe” (Harare, Zimbabwe, April 2020), http://www.zhrc.org.zw/wp-content/uploads/2020/10/NationaI-Inquiry-on-Access-to-Documentation-Report-compressed.pdf. 218 Eswatini: Births, Marriages and Deaths Registration Act 1983, sec. 15; Namibia: Births, Marriages and Deaths Registration Act No.81 of 1963, as amended, sec. 19; Seychelles: Civil Status Act 4 of 1893, as amended (Chapter 34, Laws of Seychelles), sec.31. 219 Lesotho: Births and Deaths Registration Act 1973, sec. 19; Madagascar: Loi n°2018-027 relative à l’état civil, art. 71; Malawi: National Registration Act No.13 of 2010, sec. 24(3); Tanzania: Births and Deaths Registration Act 1920, as amended, sec.12; Zambia: Births and Deaths Registration Act No.21 of 1973, as amended, sec.15; Zimbabwe: Births and Deaths Registration Act No. 11 of 1986, as amended, sec. 12. 220 Births and Deaths Registration Act, 1992, as amended, secs. 9 & 10; Regulations on the Registration of Births and Deaths, 2014, reg. 12. See Towards Universal Birth Registration in South Africa: A Briefing Paper, Lawyers for Human Rights, Pretoria, 2011; Shadow Report to the South Africa State report to the African Commission on Human and Peoples’ Rights (ACHPR), Coalition of South African NGOs, 31 March 2016. 221 Regulations on the Registration of Births and Deaths, 2014, regs. 7 & 8 222 Report on an investigation into allegations of failure to register the birth of a child and the naturalisation of the mother by the Northern Cape Department of Home Affairs, Report No.38 of 2011, Public Protector of South Africa. 223 Steven Sikhumbuzo Moyo and another v. Minister Home Affairs, North Gauteng High Court, Case Number 44424/09, 6 June 2011. 224 N and Others v Director General: Department of Home Affairs and Another (4996/2016) [2018] ZAECGHC 90; [2018] 3 All SA 802 (ECG) (27 June 2018); see “Centre for Child Law and Lawyers for Human Rights ask High Court to ensure birth registration for children of unmarried fathers”, Press Release, 16 August 2018 http://www.lhr.org.za/news/2018/press-release-centre-child-law-and-lawyers-human-rights-ask-high-court-ensure-birth-regist; “South Africa: Landmark victory for single dads”, The Herald (Nelson Mandela Bay), 9 July 2018. 225 Centre for Child Law v Director-General, Department of Home Affairs and Others (CA 319/2018), High Court of South Africa, Eastern Cape Division (Grahamstown), Judgment of 19 May 2020; “High Court rules unmarried fathers can register children’s births”, Lawyers for Human Rights, 24 May 2020. 226 “Fighting For Fatherhood In South Africa: Constitutional Court To Consider The Child’s Right To A Name And A Nationality”, Lawyers for Human Rights, 10 June 2020. The case was heard on 1 September 2020, but judgment had not been issued as this report was finalized; Constitutional Court record (Case Number: CCT101/20) available at https://collections.concourt.org.za/handle/20.500.12144/36654. UNHCR / December, 2020 62