Statelessness in Southern Africa In practice, many children of mixed nationality relationships in southern Africa, especially those born outside marriage, find that they cannot obtain recognition of their nationality, even if the law of both or either country is on the face of it gender neutral. Achieving gender equality in the right of a woman to pass citizenship to her husband has proved even more difficult than ensuring citizenship for children on a gender neutral basis. More than two dozen countries in Africa today still do not allow women to pass citizenship to their non-citizen spouses, or apply discriminatory residence qualifications to foreign men married to citizen women who wish to obtain citizenship. In southern Africa these countries are Lesotho, Malawi, and Swaziland.33 These provisions are particularly problematic when a husband is stateless or at risk of statelessness.34 (See Table 4: Right to pass citizenship to a spouse.) Contemporary cross-border movements of refugees and migrants Across the globe, migration is increasing, and creating challenges for the integration of new citizens. While there is no right to citizenship as such for people who are themselves migrants, there is an urgent need to ensure that law and practice do not exclude their children from acquiring citizenship in one of the countries to which they have a connection. It is desirable that children born in a country who remain resident there until majority have the right to acquire citizenship in that country, even if they technically have the legal right to another citizenship; and essential if they would otherwise be stateless. In addition, refugees and stateless persons have particular needs because they have lost the protection of their state of origin. Appropriate laws are necessary to this process, though of course there are formidable challenges that cannot be solved by law reform alone. In practice, as the United Nations High Commissioner for Refugees (UNHCR) puts it, with restraint: “Progress has been rather modest in terms of local integration throughout the continent.”35 While the laws of many countries in principle allow for the naturalisation of refugees and stateless persons on the same or similar terms as other foreigners, through the normal procedures, naturalisation can be very difficult to access in practice for refugees, leaving some at risk of statelessness. The laws of some countries, including Botswana, specifically provide that a refugee is not regarded as being ordinarily resident (other than for the purposes of taxation), and thus exclude refugees from normal naturalisation procedures.36 Few countries globally have undertaken effective measures to facilitate integration specifically for stateless persons, as required under the 1954 Convention relating to the Status of Stateless Persons; though in southern Africa Malawi and Lesotho, for example, have specific measures in place (on which see below). While most recent economic migrants or refugees will not themselves be stateless, a failure to act to integrate them, and especially their children, creates the risk of multi-generational statelessness of whole communities who are no longer in any sense connected to any other country and yet are not fully integrated in the country where they live. For these “settled” migrants, it is particularly important that the state where they are resident takes measures for their naturalisation; and in addition that the law provides for the right to nationality for persons born in the country who are still resident there at majority, or, preferably, after a shorter period of residence, and that the state respects these provisions through the issue of documents in practice. Without this minimum right, there is a risk of creating a class of persons who are excluded from citizenship, even if they are living in the only country they have ever known and to which they have by far the strongest connections. 33 The other countries are Benin, Burundi, Cameroon, Central African Republic, Comoros, Republic of Congo, Côte d’Ivoire, Egypt, Equatorial Guinea, Guinea, Libya, Madagascar, Mauritania, Morocco, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Togo, and Tunisia. 34 For example, a person who is a naturalised citizen of another state may lose that nationality if he resides outside the country for a number of years, under a provision common to many nationality laws. 35 United Nations Secretary-General, Assistance to refugees, returnees and displaced persons in Africa, report to the General Assembly, A/61/301, 29 August 2006. 36 Botswana Refugees (Recognition and Control) Act, Laws of Botswana, chapter 25:01. See Jonathan Klaaren and Bonaventure Rutinwa, “Towards the Harmonisation of Immigration and Refugee Law in SADC,” Migration Dialogue for Southern Africa (MIDSA), Report No.1, 2004, pp.90-91. 9