Statelessness in Southern Africa Thus, in the long-running case of John Modise, who spent years confined either to the South African “homeland” of Bophuthatswana or the no-man’s land between South Africa and Botswana because of the Botswanan government’s refusal to recognise his nationality from birth, the Commission found against the Botswanan government and ruled, among other conclusions, that Modise’s “personal suffering and indignity” violated Article 5 of the African Charter.15 Similarly, in Amnesty International v. Zambia, the Commission considered the deportations of William Banda and John Chinula from Zambia to Malawi and found that “[b]y forcing [the complainants] to live as stateless persons under degrading conditions, the [Zambian] government . . . [had] deprived them of their family and [was] depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being, thereby violating Article 5.”16 In addition, the Commission has held that Article 7(1)(a), with its reference to “the right to an appeal to competent national organs,” includes both the initial right to take a matter to court, as well as the right to appeal from a first instance decision to higher tribunals. In several cases relating to deportations or denial of citizenship, the Commission has held that the fact that someone is not a citizen “by itself does not justify his deportation” and that there must be a right to challenge expulsion on an individual basis.17 In the case of former president Kenneth Kaunda of Zambia, the African Commission found against the Zambian government’s constitutional amendment that required anyone who wanted to compete for the presidency to prove that both parents were Zambians from birth, and ruled that the provision violated Articles 2, 3, and 13 (non-discrimination, equality before the law, and participation in public life).18 The Commission noted that freedom of movement among the components of what had been the Central African Federation meant that it would be arbitrary to suggest that an indigenous Zambian could only be a person who himself was born in and whose parents were born in what later became the sovereign territory of the state of Zambia. The Commission found that the retroactive application of such a law could not be justified according to the Charter. More recently, the African Commission considered the provisions in the 2000 Constitution of Côte d’Ivoire requiring a candidate for the presidency both to be Ivorian from birth him or herself and for both parents also to be Ivorian from birth. The Commission found the provisions “unreasonable and unjustifiable, and […] an unnecessary restriction on the right to participate in government” as well as “discriminatory because it applies different standards to the same categories of persons, that is persons born in Côte d’Ivoire, are now treated based on the places of origin of their parents”.19 The very first decision on the merits of a communication to the African Committee of Experts on the Rights and Welfare of the Child, issued in 2011, concerns the nationality of children of Nubian descent born in Kenya. The Committee of Experts found the Kenyan state in violation of its obligations under Article 6 of the African Charter on the Rights and Welfare of the Child, despite the reforms of the new 2010 Constitution, since it does not provide that children born in Kenya of stateless parents or who would otherwise be stateless acquire Kenyan nationality at birth.20 The Committee noted the “devastating” consequences of statelessness for children in relation to their socio-economic rights.21 15 Communication 97/93, Modise v. Botswana, African Commission on Human and Peoples’ Rights (ACHPR) 2000, paragraph 91. 16 Communication No. 212/98, Amnesty International v. Zambia, ACHPR 1999, paragraph 50. 17 Amnesty International v. Zambia, paragraph 33. See also Communication No.159/96, Union Interafricaine des Droits de l’Homme and Others v. Angola, ACHPR 1997; Modise v. Botswana; Communications Nos. 27/89, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Others v. Rwanda (ACHPR 1996; Communication No.71/92), Rencontre Africain pour la Défense des Droits de l’Homme v. Zambia, ACHPR 1996. 18 Communication 211/98, Legal Resources Foundation v. Zambia (2001) AHRLR 84 (ACHPR 2001). 19 Communication No. 246/02, Mouvement ivoirien des droits humains (MIDH) v. Côte d'Ivoire (ACHPR 25th activity report 2008). 20 Communication 002/2009, Institute for Human Rights and Development in Africa and Open Society Justice Initiative on behalf of Children of Nubian Descent in Kenya, African Committee of Expert on the Rights and Welfare of the Child, 22 March 2011, paragraph 53. 21 Ibid., Paragraphs 42 and 46. 4