It should be noted that the Constitution protects the right of
every child to ‘a’ nationality, not necessarily to South African
nationality. However, the South African Citizenship Act is more
explicit in section 2(2), which provides that any person born on the
territory who is stateless is entitled to South African citizenship by
birth, provided the birth is registered in accordance with South
African law.
The right to nationality may begin at birth but does not end
when a person reaches adulthood; on the contrary, when a person
reaches adulthood, the importance of nationality only increases. An
identity document becomes necessary to do just about anything to
improve one’s position in life, such as furthering one’s education,
getting a job, opening a bank account, applying for financing,
buying a car and a house and much more. The Constitution's
protection of the child's right to a nationality enables legal
practitioners to advocate for all people's right to nationality by
linking section 28(a) to the right to human dignity in section 10 of
the Bill of Rights, which also applies to all persons, regardless of
citizenship.
The Constitution also prohibits deprivation of nationality, in
section 20 where it states simply: ‘No citizen may be deprived of
citizenship’ (emphasis added). There are sections on deprivation of
citizenship in the Citizenship Act, finalised in 1995, prior to the final
Constitution's promulgation on 18 December 1996, that violate
this constitutional provision. Despite several amendments to the
Citizenship Act since its enactment, the sections on deprivation of
citizenship still stand.
Legal framework on nationality and statelessness in South Africa
nationality from birth – it goes further than even the African Charter
on the Rights and Welfare of the Child, which only protects the
child's right to acquire a nationality (unless the child is stateless at
birth, in which case the ACRWC protects the child's right to acquire
the nationality of the birth country).24
The Bill of Rights also protects the fundamental rights that flow
from nationality, such as the right to equality (section 9), the right to
freedom of movement (section 21), the right to freedom and security
of person (section 12), and again, importantly, the right to human
dignity (section 10). These rights apply to citizens and non-citizens
alike and can be used as critical tools to protect the rights of the
stateless in South Africa. Indeed, it is these specific rights which are
most often denied to stateless persons as a result of their lack of
nationality and immigration status.
In assisting specific clients, practitioners can examine the Bill of
Rights more closely to distinguish which rights are reserved for
24
Article VI of the 1999 African Charter on the Rights and Welfare of the Child.
Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide
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