2020 Statelessness & Citizenship Review 2(1) African Court ordered the immediate release of the applicant and payment of compensation to him and his mother. 38 REASONING The African Court recalled its holding in Anudo that the UDHR is part of customary international law and is thus binding. 39 This includes art 15, which establishes the right to a nationality and prohibits the arbitrary deprivation of nationality. 40 The African Court affirmed that states have the sovereign right to determine nationality, but that an arbitrary denial of the right to a nationality is incompatible with the right to human dignity, and statelessness must be avoided. It thus equated arbitrary denial of nationality with arbitrary deprivation. Accordingly, the African Court held that the right to nationality is encompassed within art 5 of the African Charter on the right to the respect of the dignity inherent in a human being and to the recognition of his legal status, supporting the jurisprudence of the African Commission on this point. 41 The African Court then turned to the issue of burden of proof. The African Court reiterated the principle that anyone who alleges a fact must provide evidence to prove it. 42 However, the African Court stated that there could be exceptions where the alleging party is not in a position to produce the required proof, or where the evidence is in the custody of the other party. 43 In these cases, the African Court drew on decisions of the African Commission to hold that the state may be required to rebut a prima facie allegation. 44 Noting that the applicant had always resided in Tanzania, the African Court invoked the principle of ‘effective and solid link’ enshrined in the Nottebohm Case before the International Court of Justice, 45 meaning that the burden of proof should be reversed in this case. The African Court then considered the facts in the case in light of the Tanzanian Citizenship Act. It reasoned that by producing a birth certificate, a temporary travel document, and testimony from a witness who stated that she was his mother, the applicant had shown a prima facie case that he was a citizen. It stated that, although the respondent state asserted that these documents were fraudulent, and that the status of the witness as his mother or as a Tanzanian citizen was not proved, it had not adduced evidence that the applicant was not a citizen. 46 The African Court added that the respondent state had not demonstrated that the British and South African passports issued in different names in fact belonged to the applicant. 47 In the circumstances where both parties were relying on certified copies, the Court is of the opinion that the Respondent State, as a depository and guarantor of public authority and custodian of the civil status registry, has the necessary means to correctly establish whether the Applicant was a Tanzanian, South African or a British citizen. The Respondent State could also have obtained and produced 38 39 40 41 42 43 44 45 46 47 ibid 42–43 [168](x)–(xii). ibid 22–23 [85]–[88]. ibid. ibid 22–24 [84]–[89]. ibid 24 [91]. ibid 24 [92]. ibid 24–25 [91]–[94]. Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4, 22–24; Penessis (n 1) 25 [95]. Penessis (n 1) 26 [97]–[99]. ibid 27 [100]. 176