2021
Statelessness & Citizenship Review
3(1)
Ubuntu: that an individual is a person, only because they come from a community.
Moreover, attempts to obtain individual citizenship for persons from discriminated
groups have been difficult. Therefore, making the right to nationality a peoples’
or community right will cover the rights of individuals who belong to the
community. The study has shown the risk of statelessness resulting from the mass
expulsions related to a collective deprivation of the right to nationality in the case
of black Mauritanians. 143 Furthermore, this article has also shown that
statelessness has gone beyond its limited legalistic perspectives of ‘stateless
persons’ to embrace the broader socio-political perspectives of ‘stateless people’
and ‘stateless nations’, where the right to nationality could best be enjoyed
collectively as a people and community.
The elaboration of the AU’s Protocol on the right to nationality is a major
challenge because for the past 40 years most new African human rights
instruments have deviated from the 1981 Banjul spirit. The spirit of compromise
arrived at in Banjul in 1981 when elaborating a distinct African human rights
system that will encompass both individual and solidarity collective peoples’
rights has apparently been abandoned. In fact, most of them tend to discuss human
rights in the continent purely in terms of the protection and promotion of the rights
of persons and individuals. Although the political compromise of the Banjul
Charter seems to sway towards individual rights, it is however, gratifying to
observe the interpretative bodies of the Banjul-led African human rights system
have not failed to generate and hand down a case law that reset the 1981 spirit of
compromise on collective and individual rights in Africa. It is therefore important
that in subsequent instruments there is still this notion of peoples’ rights being
highlighted as an African specificity.
This study has demonstrated that given the existing African case law on
peoples’ rights, and recent trends on statelessness, it might be important to include
a collective peoples’ rights perspective to the right to nationality as an effort to
eradicate statelessness in the continent. It also serves as a wakeup call for African
legal experts and human rights institutions to refocus on the fading Banjul spirit
of peoples’ rights when drafting and adjudicating on human rights issues in the
continent to reflect its specificities and realities.
Since 2015, there have been efforts to develop the Draft Protocol to the African
Charter on Human and Peoples’ Rights on Certain Aspects of the Right to a
Nationality and the Eradication of Statelessness in Africa, which still focuses on
the perception that nationality is essentially an individual right. In fact, only art 8
related to the nomadic and cross-border communities recognises this collective
right to nationality. With the Draft Protocol on Nationality, the AU has an
opportunity to reset the compromise of making nationality rights a right that could
be enjoyed in the continent by individuals, groups, people, and communities
recognised by African states.
143 See ‘Mauritania: Persecution of Black Mauritanians — Summary Execution, Deprivation of
Citizenship, Illegal Expulsions, and Arbitrary Arrests’, Human Rights Watch, News from
Africa Watch (Mauritania, 7 September 1989). Other examples of mass expulsions in Africa
have been in Nigeria 1960, 1983, 2006, Ghana 1965 and 1970, Zambia 1992 and Angola
1976.
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