CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Dual nationality rules hard to interpret Where dual nationality is prohibited or rules are complex and inconsistently applied, some can be left at risk of statelessness, especially those who under the law might have the right to two nationalities from birth, but have documents from neither country. Provisions on state successions have created statelessness Many countries face continuing problems related to poor management of nationality in the transitional provisions of the laws adopted at independence. Non-existent systems for the protection of stateless persons No SADC Member State has a legal framework in place to identify and provide an interim protective status for stateless migrants and facilitate their acquisition of a nationality. Constitutional and legislative protection for the right to a nationality Angola, Malawi, and South Africa all provide in their constitutions for the right to a nationality.35 Some other states provide the same protection in specific legislation, often a children’s code, including Botswana, Lesotho, and Tanzania.36 Nationality based on birth in the country Jus soli, double jus soli, and birth + residence The countries with the strongest protections against statelessness for children born on their territory are those that apply a jus soli rule, attributing citizenship automatically to any child born on their soil (usually with an exception for the children of diplomats or other state representatives). A lesser but still important protection is provided by a double jus soli rule, attributing citizenship automatically to the second generation. In southern Africa, the strongest jus soli rights are today provided in Mozambique, which attributes nationality to all those born in the territory, as well as (redundantly, in case of those born after independence) on the basis of double jus soli (two generations born in the territory). The only exclusions are if both parents are foreign and one is a diplomat; but even in this case the child has a right to opt for nationality based on birth and residence until majority, as is the rule for those whose parents were resident in Mozambique at independence but declined Mozambican nationality at that time.37 The Nationality Regulation provides that Mozambican citizenship is presumed for all individuals born in Mozambique, unless the birth registration has any mention to the contrary.38 35 Constitution of the Republic of South Africa, 1996, art. 28(1)(a); Angola Constitution 2010, art. 32; Constitution of Malawi, 1994, art. 23. 36 Botswana Children’s Act No.8 of 2009, sec. 12; Lesotho Children’s Protection and Welfare Act No 7 of 2011, sec. 7; Tanzania Law of the Child Act No.21 of 2009, sec. 6. For a comprehensive discussion, see Patrícia Jerónimo, “Report on Citizenship Law: Mozambique” (Fiesole: Global Citizenship Observatory (GLOBALCIT), May 2019). 37 38 18 Dereto Regulamenta a Lei da Nacionalidade alterado pelo Decreto No. 5/88, art. 4 (1). UNHCR / December, 2020