Statelessness in Southern Africa Comparative analysis of nationality legislation Southern Africa shows the same variety in its citizenship laws as the rest of the continent. Some states are still using laws that were adopted at or soon after independence and have been little changed since, while others have undertaken comprehensive reforms, often in the context of a general constitutional review. Other States have adopted a series of amendments to their existing laws — most often to introduce partial or total gender equality — sometimes leading to complex provisions that seem to contradict themselves and create corresponding difficulties in determining an individual’s position. In some countries, there is conflict between the constitution and legislation: for example, in Mozambique the nationality law dates from 1975 (amended in 1987), but the 2004 Constitution provides different (and improved) provisions on nationality. In addition, of course, the provisions of the law may well not be implemented in practice, in the individual low level administrative decisions related to recognition of nationality (birth registration, issue of ID cards etc). The rights guaranteed in theory may be far from the rights afforded in fact. These complexities should be born in mind in reading the tables below, which are based on the laws listed at the end of this paper. The right to a nationality for children born in the country Despite the provisions of the ACRWC, most African countries fail to provide in their constitutions or in legislation for an explicit right to nationality for children who would otherwise become stateless. Seven African countries fail to make any default provision for children with no other option to acquire a nationality under their citizenship law, even at majority: the southern African States among this number are Botswana, Swaziland, Zambia and Zimbabwe (see Table 2: The right to a nationality for children born in the country).64 Jus soli, double jus soli and birth + residence The countries with the strongest protections against statelessness for children born on their territory are those that follow a jus soli rule, granting citizenship automatically to any child born on their soil (usually with an exception for the children of diplomats or other state representatives). Few countries in Africa (including Lesotho, as well as Chad and Tanzania) base their law on jus soli in the first instance.65 However, more than 20 countries, mostly in the civil law tradition, have adopted a half measure between requiring descent from a citizen and a jus soli rule. These countries provide either that children born in their territory of non-citizen parents can claim citizenship from birth (“by origin” in the civil law usage) if they are still resident there at majority, or that children born in the territory of at least one parent also born there are citizens from birth (a provision often known as “double jus soli”). In southern Africa, Mozambique, Namibia, and South Africa, all include provisions allowing for a child born in the country to have the right to citizenship either immediately or following residence until majority, and Mozambique also provides for double jus soli.66 (See Table 2: The right to a nationality for children born in the country.) In Mozambique the Constitution provides that a child born in the country is Mozambican, whatever the status of the parents (unless in the employment of their own country), if his or her legal representative 64 The others are Gambia, Libya, Nigeria, Seychelles, and Sierra Leone. Some countries previously applied a jus soli rule but have since changed the law to remove this provision: Côte d’Ivoire in 1972, Mauritius in 1995, and Gambia in 2001, all at the same time as they removed gender discrimination in citizenship by descent. Botswana also ended jus soli in 1984, but substituted a rule that discriminated on the basis of gender (until challenged in court in the Unity Dow case). 66 In the case of Mozambique, the parents of a child born in the country may declare that they wish the child to be Mozambican, within one year of the child’s birth, or the child may claim nationality within one year of majority (Constitution, 2004, Article 24). In the case of Namibia, the child of parents who are “ordinarily resident” (excluding those who are illegal immigrants or diplomats etc) in the country are Namibian citizens from birth by operation of law\ (Constitution, 1990, Article 4(1)(b)). African countries including conditional or double jus soli provisions are: Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Equatorial Guinea, Gabon, Ghana, Guinea, Mali, Mauritania, Morocco, Mozambique, Niger, Rwanda, Senegal, South Africa, Togo, Tunisia, Uganda, and Zambia. 65 14