Statelessness in Southern Africa In principle, recognition of citizenship should start immediately after birth, with registration of the birth itself.52 Birth registration establishes in legal terms the place of birth and parental affiliation, which in turn serves as documentary proof underpinning acquisition of the parents’ nationality (jus sanguinis), or the nationality of the state based on where the child is born (jus soli). Birth registration (while not itself conferring citizenship) is usually fundamental to the recognition of nationality itself, and thus of all other citizenship rights: lack of birth certificates can prevent citizens from registering to vote, putting their children in school or entering them for public exams, accessing health care, or obtaining identity cards, passports, and other important documents. Yet, according to UNICEF, the UN Children’s Fund, 55% of African children under five years old have not been registered, with the situation much worse in rural areas. In a few countries more than 90% of children are not registered.53 In some countries, the registration of births is not even compulsory. For example, as of 2004 in southern Africa, registration of births was compulsory for all children in South Africa, Swaziland, Zambia, and Zimbabwe; but not in Botswana and Malawi. In Malawi the requirement to register was racially based: registration was compulsory only if one or both parents were of European, American, or Asiatic “race” or origin.54 In Zambia only an average 14% of children are registered, as reported by UNICEF. For Malawi figures are not even available from UNICEF, but a campaign on birth registration led to the adoption of a new law in 2011 requiring universal birth registration, without racial discrimination. This campaign is believed to have increased the rate of registration from less than 5% of under-fives to around 10% in 2009, with further progress anticipated.55 Mozambique adopted a national plan of action on birth registration in 2004 to address the fact that only 6% of children under five years had a birth certificate. Since then, about 4.2 million children under the age of 18 have been registered. This represents almost 50% of all children in Mozambique.56 Refugees and asylum seekers also have full access to civil status documentation, such as birth, marriage and death certificates. However, the fact that nationality legislation has not been updated since the current Constitution was adopted in 2003 leads to inconsistent practices at different civil registry offices. In Angola, the 2005 nationality law provides that nationality of origin is proved by a birth certificate; yet UNICEF estimates that only 29% of Angolan children are registered overall, and only 19% in rural areas. Similarly in South Africa, the Citizenship Act provides that citizenship is granted to children born on the territory who would otherwise be stateless, provided that birth is documented through a birth certificate.57 The Births and Deaths Registration Act states that birth registration is a right for all children. Within southern Africa, South Africa has the highest rates of registration, after a major drive to improve registration rates led to an increase from less than 25% of under-fives in 1998 to 72% in 2005, and 92% by 2009. Even so, a substantial proportion of births are registered late.58 Moreover, those who are most likely not to be registered are children whose parents cannot produce a passport or South African identity card. This means that asylum seekers, refugees, stateless persons and undocumented migrants may be 52 “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.” Convention in the Rights of the Child, 20 November 1989, Article 7(1). The African Charter on the Rights and Welfare of the Child repeats this provision (Article 6(2)). 53 For birth registration statistics for individual countries, follow links from the UN Children’s Fund (UNICEF) index page to statistics for each country, which are currently updated as of March 2010: http://www.unicef.org/infobycountry/esaro.html. See also concluding observations of the UN Committee on the Rights of the Rights for the relevant countries, available at http://www.unhchr.ch/tbs/doc.nsf, in which concern at low birth registration rates is frequently expressed. 54 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.40-41. 55 See Plan International country case study, available at: http://planinternational.org/birthregistration/resources/country-case-studies/malawi. 56 See information from UNICEF at http://www.unicef.org/mozambique/protection_4904.html and Plan International at http://plan-international.org/birthregistration/resources/country-case-studies/mozambique. 57 South African Citizenship Amendment Act, 2010 Article 2(2). 58 The coverage and quality of birth registration data in South Africa: 1998–2005, Report no. 06-03-01 (2007), Statistics South Africa, 2007; 2009 figure from UNICEF. 12