Statelessness in Southern Africa Many African countries have a system of compulsory identity documentation for adults. Possession of an identity card is key to accessing all sorts of other rights, including not only voting and other rights formally restricted to citizens, but also health care and education, as well as participation in the formal economy. Though it may not be legally identified as such, the system for obtaining this documentation is often the main system for obtaining confirmation of nationality. In practice, there are often major problems of state capacity and discrimination at low-level administrative offices in issuing identity cards. The civil law countries usually provide an automatic right to challenge an administrative decision of this type in the administrative courts. However, the process tends to be more difficult in the common law system, where the rules often do not provide for effective due process. A number of southern African countries specifically exclude the right to challenge a decision under the citizenship law in the normal courts. This is the case in Botswana, Lesotho, Malawi, and Zambia, and is highly problematic, due not only to the risk of statelessness, but the consequences for the person’s other rights that are attached to his or her nationality. In Malawi’s case, the provisions in the (1966) Citizenship Act appear to violate a (1994) constitutional prohibition on arbitrary deprivation or denial of citizenship.120 Botswana, Swaziland, and Zambia establish an administrative procedure by which the decision to grant or deprive citizenship is made by a citizenship “board” appointed by the relevant minister or the president; though providing a measure of protection from abuse, it should not justify the exclusion of review by the normal courts. Lesotho, Malawi and Zimbabwe do not establish a citizenship board for these decisions, though they provide for review of a decision to deprive nationality by an “enquiry” conducted by persons appointed by the minister.121 The Namibian Citizenship Act also provides for an administrative review of deprivation of nationality, but, though it does not explicitly provide for judicial review as well, this is permitted under the Constitution. However, in relation to denial of naturalisation, no challenge is permitted.122 Even if a legal challenge in the normal courts is possible — for example, in South Africa section 25 of the Citizenship Act specifically provides that any decision of the minister may be reviewed by the High Court — such an application is likely to be costly. Many countries provide for an individual to obtain a “certificate of nationality” in case of any doubt around their status. This is a useful protection against a situation of undetermined nationality, which, if it persists over time, can mean that the person is stateless. In southern Africa, many countries have such a provision — including Angola, Botswana, Lesotho, Malawi, Swaziland, Zambia and Zimbabwe. However, the issue of the certificate is at the administrative discretion of the authorities, and not provided through a process that is subject to sufficient due process guarantees. Ideally, a person should be able to go to a court with relevant documentation and testimony, to obtain a legal ruling on whether he or she is a national. The other common form of proof of nationality is a passport: essential for travel, but often used domestically also. Deprivation or refusal to renew passports has been a fairly common political tool, in southern Africa as in other parts of the world. Historically, British law regarded the grant of travel documentation as being within the “crown prerogative,” a privilege and not a right, though this position has changed in recent years. African jurisprudence in the Commonwealth countries has regrettably often followed this rule. But litigation in some countries and new laws in others have begun to push back the tide of absolute administrative discretion: the courts in Nigeria, Kenya and Zambia, for example, have ruled that a citizen is entitled to a passport, even though this is (or was) not provided for in legislation.123 120 Constitution 1994, section 47. Lesotho Citizenship Order 1971, section 23(5); Malawi Citizenship Act, section 25(4); Zimbabwe Citizenship Act section 11(4). 122 Namibian Citizenship Act, sections 5(8), 9(5) and 17; Constitution, Art.12 (right to a fair trial). 123 Deepak Chamanlal Kamani v. Principal Immigration Officer and 2 Others [2007] eKLR; see also Peter Mwaura, ‘Passport is a right for every citizen, not a privilege’ The Nation (Nairobi), 7 July 2007; Obiora Chinedu Okafor, ‘The fundamental right to a passport under Nigerian law: An integrated viewpoint’, Journal of African Law, Vol.40, No.1, 1996; Cuthbert Mambwe Nyirongo v Attorney-General (1990-1992) ZR 82 (SC). The new Kenyan 2010 Constitution provides in Art 12 that “Every citizen is entitled to a Kenyan passport and to any document of registration and identification issued by the State to citizens”. 121 28