Statelessness in Southern Africa those who are not ethnic Swazis or are of mixed ethnicity can find it very difficult to obtain recognition of citizenship.27 Such laws and practices obviously create the danger of statelessness for persons born in the country who have citizenship in no other state but do not fulfil the explicit or implicit racial or ethnic conditions imposed. The failure of the state to recognise the nationality of whole groups of people is also a central cause of some conflicts in Africa, for example the wars in Côte d’Ivoire and DRC. Gender discrimination and discrimination based on marital status of parents Gender discrimination is one of the commonest causes of statelessness, especially in the case of children who cannot obtain their mother’s nationality because of gender discrimination and who cannot otherwise acquire the nationality of the State of birth or of their father (for example, because the child was born out of wedlock, the inadequacy of civil registration procedures or other challenges). Nonetheless, gender discrimination was until recently the norm in citizenship laws across the world; some of the older international treaties on nationality law in fact assumed that gender discrimination would be applied, while trying to minimise statelessness that could result.28 In Africa at independence and until recently, most countries discriminated on the basis of gender in granting citizenship. Female citizens were not able to pass on their citizenship to their children, if the child’s father was not also a citizen, nor to their foreign spouses. In Southern Africa today, however, gender neutrality in the right of a parent to transmit his or her nationality to a child is the norm (see Table 3: Right to citizenship by descent). Southern Africa also contributed a leading case for the continent, in the 1993 Unity Dow ruling in Botswana, where the Court of Appeal upheld a woman’s right to pass Botswana citizenship to her children.29 The law was subsequently amended to conform with this ruling. In Zimbabwe, advocacy by the women’s movement, including a successful Supreme Court challenge30, led to the removal of discrimination on grounds of gender and marital status of the parents in 1996. It only had effect from that date, however, and children born between 1980 (attainment of majority rule) and 1996 could not claim Zimbabwean citizenship if only their mother was Zimbabwean, unless born out of wedlock.31 In 2009, as part of a constitutional amendment allowing for the installation of a government of national unity, gender discrimination was completely removed from the Constitution in relation to citizenship by birth and marriage.32 A few countries providing unequal rights for men and women in relation to nationality also discriminate additionally on the basis of whether a child is born in or out of wedlock; the provisions generally provide stronger, though not absolute, rights to the mother if a child is born out of wedlock. Among these countries is Swaziland. Discrimination on the grounds of birth in or outside marriage creates additional risks of statelessness, by providing one further condition before citizenship can be claimed and creating confusion over the rights of parents to transmit their nationality. 27 “A person who has Khontaed, that is to say, has been accepted as a Swazi in accordance with customary law and in respect of whom certificate of Khonta granted by or at the direction of the King is in force, shall be a citizen of Swaziland.” Swaziland Citizenship Act No.14 of 1992, section 5. See also Constitution of Swaziland, Article 42, which appears to provide that persons born before the Constitution came into effect are citizens “by operation of law” if either parent is a citizen and also if the person is “generally regarded as Swazi by descent.” Article 43 of the Constitution removes this (not entirely clear) ethnic basis for children born after the Constitution came into effect, but entrenches gender discrimination, providing that citizenship is only passed by a father who is a Swazi citizen. 28 For example, the 1957 Convention on the Nationality of Married Women. 29 Attorney General vs. Unity Dow, certified judgment of the Court of Appeal Civil Appeal, No. 4/91, Botswana, June 11, 1992 30 Rattigan and Others v. the Chief Immigration Officer, Zimbabwe and Others (Supreme Court of Zimbabwe, 1995 31 Constitution of Zimbabwe Amendment (No. 14) Act, 1996; see also Tandeka C. Nkiwane, “Gender, Citizenship, and Constitutionalism in Zimbabwe: The Fight Against Amendment 14”, Citizenship Studies, Vol. 4, No. 3, 2000. 32 Constitution of Zimbabwe Amendment (No.19) Act, 2009. The Citizenship Act (last amended in 2003) continues to quote the pre-1996 version of the Constitution; however it is to be presumed that the courts would substitute the current version of the Constitution in their interpretation. 8