Statelessness in Southern Africa makes a declaration within one year of their birth, or if the child makes a declaration within one year of attaining majority.67 A child born in the country of one parent also born there is Mozambican without any further procedures necessary.68 In Namibia, the parents must be “ordinarily resident” in the country and must not be in the employment of another country or “illegal immigrants” (unless the child would otherwise be stateless).69 In South Africa, the Department of Home Affairs had established a practice of granting citizenship from birth to children with only one parent who was a permanent resident, even though the law until 2010 provided for citizenship from birth to a child with both parents who were permanent residents (or with one who was a citizen).70 Since the 2010 amendments to the law, which now require the child of permanent residents to remain resident until majority, rather than granting citizenship at the time of birth,71 children of permanent residents are being given handwritten “foreigner” birth certificates rather than computerised certificates with a national ID number.72 However, under a further amendment to the law, a child born in the country of parents who were not permanent residents still qualifies to naturalise as a citizen if he or she remains resident in the country at majority.73 Children of citizens All southern African countries, with the exception of Swaziland and Malawi, provide on paper for every child born in the country of one citizen parent to have the citizenship of that country, whether or not the parent is the father or mother, and whether or not the child is born in or out of wedlock. (See Table 3: Right to citizenship by descent). Since 2009, Zimbabwe’s Constitution provides this right for a person born in or outside Zimbabwe with one grandparent who is or was a citizen.74 In the case of Swaziland, the law discriminates on the grounds of both gender and marital status. The child of a Swazi father born in the country is a Swazi national, whether born in or out of wedlock. The child of a Swazi mother and a non-national father has no right to Swazi nationality if the parents were married; if born out of wedlock and not claimed by the father, the child is a national by birth.75 As noted above, the Malawi Citizenship Act of 1966 discriminates in granting citizenship on the grounds of race.76 Persons not “of African race” cannot under this law obtain Malawian nationality from birth, and may only naturalise as citizens, leaving those with no other nationality stateless. Children of stateless parents or who would otherwise be stateless Very few states in Africa have an explicit safeguard in their nationality legislation in line with article 6(4) of the ACRWC according to which they grant nationality to children born on their territory who 67 Constitution of Mozambique, 2004, Article 24. Constitution of Mozambique, 2004, Article 23(1)(a). 69 Constitution of Namibia, 1990, Article 4(d). 70 South Africa Citizenship Act (No. 88 of 1995), section 2(3), prior to 2010 amendments. See Jonathan Klaaren, ‘Post-Apartheid Citizenship in South Africa’, in A. Aleinikoff (ed.) From Migrants to Citizens: Membership in a Changing World (Brookings Institution Press, 2000) pp.221-252. 71 South African Citizenship Amendment Act No.17 of 2010, amending section 2 of the principal act on citizenship by birth. 72 Information presented by Lawyers for Human Rights at UNHCR regional statelessness meeting 1-3 November 2011. 73 South African Citizenship Amendment Act No.17 of 2010, amending section 4 of the principal act on citizenship by naturalisation. The different between being born in the country of parents who are permanent residents and those who are not is thus slight, resting on the greater discretion given to the state in case of citizenship by naturalisation. 74 Constitution 1981, as amended 2009, article 5 and 6. 75 Constitution of the Kingdom of Swaziland, 2005, article 43; Citizenship and Immigration Act No.14 of 1992 sections 6 and 7 (prior to 1992 either parent could pass nationality). Other countries in Africa that discriminate in this way include Benin, Burundi, Guinea, Liberia, Libya, Madagascar, Mali, Mauritania, Senegal, Sierra Leone, Somalia, Sudan, Togo, and Tunisia. 76 Citizenship Act 28 of 1966. Other African countries that discriminate on the basis of ethnicity or race include the Democratic Republic of Congo, Egypt, Liberia, Libya, Sierra Leone, Somalia, and Uganda. Liberia and Sierra Leone also restrict citizenship from birth to those of “negro African descent”. For this and other comparative information see Citizenship Law in Africa: A comparative study, Open Society Foundations, 2nd edition, 2010. 68 15