CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 president, with the right for the person affected to make representations.353 Though providing a measure of protection from abuse, such administrative bodies should not justify the exclusion of review by the normal courts (as noted, Zambia’s Citizenship Act specifically provides for an appeal to the High Court).354 There is no explicit exclusion of court review in Eswatini, although the legislation provides that the minister may refuse to accept a recommendation of the committee.355 But in Botswana the Citizenship Committee has only an advisory role in naturalisation, and no role in deprivation, while court review is excluded.356 Zimbabwe’s 2013 Constitution provided for a similar body to be established by parliament, but the law had not yet been amended to do so by the end of 2019.357 In relation to deprivation specifically, the legislation in Lesotho, Malawi, Namibia, and Zimbabwe provides for initial review of a decision to deprive nationality by an “enquiry” conducted by persons appointed by the minister.358 The Namibian Citizenship Act also provides for an administrative review of deprivation of nationality.359 In DRC, a decision to deprive a person of nationality is taken by the Council of Ministers, but only takes effect after approval by the National Assembly.360 In each case, the person affected might arguably have the right to challenge the decision under the constitutional protections for a fair hearing (even where ouster clauses are in effect); but in practice no court review is likely to be possible. Court oversight is equally important in decisions impacting on recognition of nationality but undertaken under different legislation – including especially family law and civil registration. A decision on recognition of a child by a parent or on the details to be recorded in a birth or death certificate can in effect grant or deprive nationality. Courts in Zimbabwe and Lesotho have ruled that cancellation of an entry in the register of births and deaths, in many cases prima facie evidence of citizenship, was unlawful without an order of court.361 The right to nationality and the documents that confirm it have been subject to litigation in many countries in southern Africa, especially in Botswana, Lesotho, Namibia, South Africa, Zambia, and Zimbabwe.362 However important, a court application is likely to be costly, and will require legal assistance. Alternative and more accessible routes to overturn administrative decisions are also needed: in South Africa, for example, the Public Protector (established by the 1996 constitution) has made findings against the government in cases where birth registration has been denied or revoked, depriving a child of citizenship.363 353 Botswana Citizenship Act 1998, as amended, sec. 3; Constitution of Swaziland 2005, art.54; Constitution of Zambia 2016, art.41; Citizenship of Zambia Act 2016, Part II (secs. 3-14). 354 Citizenship of Zambia Act 2016, sec. 30. 355 Swaziland Citizenship and Immigration Act 1992 sec. 15(7). 356 Botswana Citizenship Act 1998, sec. 22. 357 Constitution of Zimbabwe 2013, art. 41. 358 Lesotho Citizenship Order 1971, sec. 23(5); Malawi Citizenship Act, sec. 25(4); Zimbabwe Citizenship Act sec. 11(4). 359 Namibian Citizenship Act, secs. 5(8), 9(5) and 17. 360 Loi No.04/024 du 12 novembre 2004 relative à la nationalité congolaise, art.29. 361 T v Registrar General of Births and Deaths (135/07) ((135/07)) [2008] ZWSC 26, Supreme Court judgment of 20 October 2008; Zwelakhe Mda v Minister of Home Affairs and Others (Constitutional Case No.4 of 2014) [2014] LSHC 30, High Court of Lesotho, judgment of 24 September 2014. 362 See resources at http://citizenshiprightsafrica.org/region/southern-africa/?fwp_media_type=national-courts. 363 Report No.38 of 2011: Report on an investigation into allegations of failure to register the birth of a child and the naturalisation of the mother by the Northern Cape Department of Home Affairs, Public Protector of South Africa, March 2011; Report no 27 of 2019/20: Report on an investigation into allegations of maladministration by the Department of Home Affairs in respect of the alleged improper revocation of a minor child’s birth certificate and consequently his South African citizenship, Public Protector of South Africa, 7 June 2019. UNHCR / December, 2020 83