CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 Both Lesotho and Tanzania have citizenship laws that appear to provide for jus soli attribution of citizenship to all children born in the territory. Lesotho adopted amendments to its law that first reduced but then restored a right to citizenship based on birth in the territory. The 1993 Constitution, which partially repealed the 1971 Citizenship Order, restored jus soli citizenship for all, with only the usual exceptions if the father was entitled to diplomatic immunity or an enemy alien (and the mother was not a citizen).39 In practice, however, Lesotho does not apply the law as written, implementing jus soli citizenship only if the child would otherwise be stateless.40 in Tanzania, the 1995 Citizenship Act removed gender discrimination in transmission of citizenship to children born outside Tanzania, but left the basic jus soli framework unaltered for those born in Tanzania.41 However, the official interpretation of the law in Tanzania has come to be that the citizenship regime was based on descent.42 Comoros provides that a child born in Comoros acquires nationality at birth “unless both parents are foreigners”,43 implying that the child of parents who are of unknown nationality or stateless would be considered Comorian, as well as the child of one Comorian and one foreign parent. Very similar language used in Côte d’Ivoire, however, has not been interpreted in this way.44 Namibia retains the rule previously also applied in South Africa and Zimbabwe, that a child born in the country of parents who are “ordinarily resident” there is attributed nationality at birth, unless the parents are in the employment of another country or “illegal immigrants” (with exceptions if the child is stateless; see below).45 In 2016 the government backed down from a proposal to overrule a Supreme Court decision upholding the right to Namibian citizenship of a child born in the country to foreign parents who were longterm residents.46 In Zimbabwe, the 2013 Constitution provides that a person born in Zimbabwe before the new constitution came into force became a citizen by birth if one or both parents was a citizen of a SADC 39 Constitution of Lesotho, 1993 art. 38: (1) Subject to the provisions of subsections (2) and (3), every person born in Lesotho after the coming into operation of this Constitution shall become a citizen of Lesotho. (2) Save as provided in subsection (3), a person shall not become a citizen of Lesotho by virtue of this section if at the time of his birth neither of his parents is a citizen of Lesotho and (a) one or both of his parents possesses such immunity from suit and legal process as is accorded to the envoy of a foreign sovereign power accredited to Lesotho; or (b) one or both of his parents is an enemy alien and the birth occurs in a place then under occupation by the enemy. (3) A person born in Lesotho on or after the coming into operation of this Constitution who is disqualified to become a citizen of Lesotho by virtue of subsection (2) of this section shall become a citizen of Lesotho if he would otherwise become stateless. 40 41 Meeting between UNHCR and the Commissioner for Refugees and Chief Legal Officer, Ministry of Home Affairs, Lesotho, 21 August 2020. Section 5(1) of the Citizenship of Tanzania Act No.6 of 1995 provides that a person born in Tanzania becomes a citizen at birth, unless provisos in section 5(2) apply: “(a) neither of his parents is or was a citizen of the United Republic and his father possesses the immunity from suit and legal process which is accorded to an envoy of a foreign sovereign power accredited to the United Republic; or (b) any of his parents is an enemy and the birth occurs in a place then under occupation by the enemy.” 42 See discussion in Manby, “Citizenship and Statelessness in the East African Community”. 43 Loi No. 79-12 du 12 décembre 1979 portant Code de la nationalité comorienne, art. 10: “Est comorien, tout individu né aux Comores sauf si ces deux parents sont étrangers.” 44 See Mirna Adjami, “Statelessness and Nationality in Côte d'Ivoire” (Geneva: UNHCR, December 2016). 45 Constitution of Namibia, 1990, Art. 4(d). See discussion in Faith Chipepera and Katharina G Ruppel-Schlichting, “Children’s Right to Citizenship”, in Children’s Rights in Namibia, ed. Oliver C. Ruppel (Windhoek: Konrad Adenauer Stiftung, 2009). 46 Namibia Constitution 1990, art. 4; De Wilde vs. Minister of Home Affairs, Supreme Court of Namibia, Case SA 48/2014; Report of the National Council Select Committee on the Namibian Citizenship Bill [B11 of 2016] 3 August 2016; Kaity Cooper and Dianne Hubbard, “By the Skin of Its Teeth: How Namibia Narrowly Avoided a Constitutional Crisis”, Citizenship Rights in Africa (blog), 7 February 2017, http://citizenshiprightsafrica.org/by-the-skin-ofits-teeth-how-namibia-narrowly-avoided-a-constitutional-crisis/. 19 UNHCR / December, 2020