CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Foundlings, orphans, and other vulnerable children In 2008, SADC adopted a comprehensive strategy on orphans and vulnerable children and youth, which estimated that there were close to 17 million orphans in SADC states, noting that “these figures are a gross underestimate of the total number of all vulnerable children and youth in the region, largely because these groups often go unnoticed making their numbers more difficult to quantify”.368 The number has no doubt increased since then, though this report could not find an up-to-date estimate. The strategy also noted the risk of statelessness for children in this group without birth registration.369 Among these orphans will be many whose parents are not known, or whose parents were of unknown nationality. Among SADC member states, Botswana, Lesotho, Malawi, Namibia, Seychelles, South Africa and Tanzania have no provision in their nationality laws creating a presumption of nationality for children of unknown parents found on the territory; while in Comoros and Mauritius the provisions are unclear, and in any event appear to apply only to abandoned infants (see heading above, Foundlings: children of unknown parents). Only Angola, DRC, Lesotho, Malawi, Mozambique, Namibia and South Africa provide at least some legal protection for “otherwise stateless” children born in their territory, in line with the requirement of the African Charter on the Rights and Welfare of the Child. In the case of Mozambique and Namibia, the general provisions for jus soli provide stronger protection without needing to prove statelessness. Even if these legal protections are in place, however, procedural mechanisms are needed to make the law effective in practice. In the case of foundlings, these protective mechanisms will usually include late registration of birth, and legal confirmation in accordance with national law that nationality has been acquired of the country where the child was found. In the case of the protection for otherwise stateless children, it may be necessary to inquire into the situation in relation to the other nationalities to which the child may have a claim, followed by confirmation that the child is stateless and therefore acquires the nationality of the country of birth. It is not sufficient simply to assert that the child has another nationality without seeking confirmation that that is the case. Problems with late birth registration contribute to these issues (see above: Birth registration). An effective system of child protection is also needed to ensure that orphans, children separated from their parents, and other vulnerable children have their nationality confirmed. If at least one of the parents is known to be a national of the country of birth then there must be a system to confirm the nationality of the child. If both parents are known to be nationals of another country, then the obligation is either to ensure confirmation of that nationality or one of those nationalities, through the relevant consular authorities, or to provide the possibility of acquiring the nationality of the country of birth – if the other nationality is not accessible, or if it is in the best interests of the child. The risk of statelessness are high for children in these categories, even if they are on the face of the law nationals of the country of their birth. Street children everywhere face challenges in obtaining the necessary documentation to survive as they become adults. 368 SADC, “Comprehensive Care and Support for Orphans and Vulnerable Children and Youth in the Southern African Development Community: Strategic Framework and Programme of Action 2008-2015” (Gaborone: Southern Africa Development Community, 2008), 6, https://www.sadc.int/files/2113/5293/3505/SADC_Strategic_Framework_and_Programme_of_Action_2008-2015.pdf. 369 SADC, “Comprehensive Care and Support for Orphans and Vulnerable Children and Youth”, Annex 2, section 3.0. UNHCR / December, 2020 86