CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Comparative analysis of nationality legislation Southern Africa shows the same variety in its citizenship laws as the rest of the continent. In southern Africa, two principal traditions of law continue to shape the frameworks for nationality law: the common law of the British empire, and the civil law traditions of Belgium, France and Portugal. In all cases, however, the laws have been significantly amended since independence. A number of states set out the main substantive provisions of their nationality law in the constitution, especially in relation to the attribution of citizenship at birth – including Eswatini, Lesotho, Mauritius, Mozambique, Namibia Zambia, and Zimbabwe – even if more detail is provided in a statute. In the other states, the constitution may provide a general statement (such as the right of every child to acquire a nationality) but the detailed provisions are all in the legislation. In some countries, there is conflict between the constitution and legislation: for example, in Mozambique the nationality law dates from 1975 (amended in 1987), but the 2004 Constitution provides different (and less discriminatory) provisions on nationality; in Zimbabwe, the 2013 Constitution establishes rules which are not yet reflected in an updated statute. There are several other examples noted below. In addition, of course, the provisions of the law may well not be implemented in practice, in the individual low level administrative decisions related to recognition of nationality through the issue of identity documents (see below: Nationality administration in practice). The rights guaranteed in theory may be far from the rights afforded in fact. These complexities should be born in mind in reading the tables below, which are based on the laws listed in Appendix 1. Gaps in nationality laws contributing to statelessness Gender discrimination Where women cannot transmit their nationality to their children, those who have children with a father of another nationality (or who is stateless or of unknown nationality), or with a father who abandons a child or who dies without leaving nationality documentation or obtaining nationality documents for his children, there is a real risk that their children will be stateless, especially if they do not live in the country of the father. Racial and ethnic discrimination Racial and ethnic discrimination in the law leaves those who are not perceived to be of the “right” racial or ethnic group at risk of statelessness, especially where combined with discrimination on the basis of sex and where the father is from the excluded group. Weak rights attached to birth in the country Countries which provide very limited rights based on birth in the country – in particular, those which do not provide protections for children of unknown parents, or for children whose parents cannot transmit their nationality to their children, or whose parents are stateless or of unknown nationality – leave many children at risk of statelessness. In general, states which provide no access to nationality even if successive generations are born in the country, and no rights based on birth in the country and residence during childhood (enabling automatic or optional access to nationality at majority), tend to have large populations of stateless persons. 17 UNHCR / December, 2020