CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 in the country, but still applies for those born outside the country between the entry into force of the independence constitution of 1976 and the republican constitution of 1979.100 A handful of African countries allow for citizenship to be passed for only one generation outside the country: a citizen from birth born in the country can pass his or her citizenship to a foreign-born child but that child cannot pass citizenship on to the next generation born outside. Provisions to this effect, derived from British law presumptions in place at independence that citizenship would be attributed by the state in whose territory a person was born, remain in force in Eswatini, Lesotho, Malawi, Mauritius, and Tanzania in southern Africa. In some cases, though the child has a right to the nationality of the parent, there are additional requirements either to take positive steps to claim that right or to notify the authorities of the birth, if a child is born outside the country. These provisions, while in principle acceptable, may leave some children stateless: they are often little known and if nationality is not claimed within the relevant time limits the right may be lost. It may also be difficult to fulfil the requirements in practice, especially where the country of the parents’ nationality has no diplomatic representation in the country of residence. Some states require a deliberate option for nationality to be transmitted to children born outside the country. In Mozambique, the child of a Mozambican parent born outside of Mozambique must opt to acquire nationality – either through legal representatives or in his or her own name at majority (unless their parents were abroad in service of the state).101 Similarly, the constitution of Eswatini provides that a child born abroad of a Swazi father also born abroad must notify the authorities within one year of majority of his or her desire to retain citizenship of Eswatini; if this is not done, the person ceases to be a citizen (the child of a Swazi mother has no similar rights).102 Tanzania has discriminatory provisions for the second generation born abroad, who are not automatically attributed citizenship at birth. The child born abroad of a Tanzanian father who was also born abroad (i.e. the child of a father who is a “citizen by descent”) does not acquire citizenship as of right, but has easier access to naturalisation; the child born abroad of a mother who is a “citizen by descent”’ has no greater access than any other foreigner.103 Namibian and South African children born abroad must only be registered with a consulate.104 This lesser requirement is not recorded in Table 2, though arguably this exclusion is too generous, as is evidenced by a case heard by the South African Constitutional Court in February 2020. Lawyers for Human Rights sought confirmation of a High Court order that amendments made to the Citizenship Act in 2010 should be read in such a way as not to remove rights to citizenship from those born outside the country before the amendments came into force, whose birth had not been registered in accordance with the Births and Deaths Registration Act before that date.105 The High Court had ordered late registration of birth and grant of 100 Constitution of the Republic of Seychelles, 1993, as amended, art. 10A: “A person born outside Seychelles on or after the Independence Day but before the 5th June, 1979 whose mother was a Seychellois at the time of the person's birth is eligible to become a citizen of Seychelles by naturalization or registration.” 101 Constitution of Mozambique 2004 art. 23(3) ; Lei de 20 de Junho de 1975 (amended 1987), art. 8(1). The law provides for renunciation of any other nationality they may have acquired; but since the 2004 constitution permits dual nationality this would no longer apply. 29 102 Constitution of Swaziland, 2005, art.43(3). 103 Tanzania Citizenship Act 1995, sec. 6. 104 Constitution of Namibia 1990, Art.4; Citizenship Act No.14 of 1990, Art.2. 105 South African Citizenship Act 88 of 1995, as amended 2010, secs. 2(1)(a) and 2(1)(b). UNHCR / December, 2020