Realising the Child’s Right to a Nationality in South Africa I INTRODUCTION More than 60 years since the advent of the 1961 UN Convention on the Reduction of Statelessness1 and 40 years since the African Charter on Human and Peoples’ Rights (‘Banjul Charter’),2 how is the Republic of South Africa (‘South Africa’) doing in terms of realising the child’s right to a nationality? South Africa’s constitution3 is lauded the world over for its revolutionary commitment to a wide range of comprehensive human rights,4 including the rights of children, but childhood statelessness persists. This article considers the historical, legislative and implementation factors which may be responsible for the cracks in the system protecting children against statelessness. Children in South Africa today face the cumulative effect of historical, political and social realities in their quest for citizenship. 5 Without citizenship, the new South Africa is a myth to these children and the promise of the constitution, a mockery of their daily realities. Article 1 of the African Charter on the Rights and Welfare of the Child (‘ACRWC’) requires those ‘Member States of the Organisation of African Unity’ whom are parties to the ACRWC to adopt ‘legislative and other measures’ to give effect to the rights in the ACRWC.6 Can South Africa do more to provide legislative protection and to implement the laws it has in a more equal and non-discriminatory way? The article is divided into four parts. In the first part, it briefly considers the historical context of selective nation-building policies in South Africa, the effects of the apartheid regime and the emerging regressive tendencies in immigration and citizenship policy on the citizenship rights of children today. The second part provides an analysis of the jurisprudential development of childhood citizenship rights in the South African courts and the opportunities and limitations in access to citizenship rights which they reveal. The third part considers which crucial legislative gaps remain and require legal reform. The final part looks at the operation, or implementation, of the law, or lack thereof, which appears to render South Africa’s legislative efforts inoperative. The article concludes with brief recommendations for the way forward towards the realisation of the child’s right to citizenship in South Africa. II HISTORICAL CONTEXT: COLONISATION, APARTHEID AND THE NEW SOUTH AFRICA’S SELECTIVE RAINBOW NATION Ironically, South Africa’s current immigration and internal affairs policies reflect similar attitudes toward what is considered a foreign threat as their colonial and 1 2 3 4 5 6 Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975) (‘1961 Statelessness Convention’). African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) (‘Banjul Charter’). Constitution of the Republic of South Africa (‘Constitution’). Justice Mavedzenge, ‘How South Africa Shaped a World Leading Constitution’, Mail & Guardian (online, 27 October 2021) <https://mg.co.za/opinion/2021-10-27-how-southafrica-shaped-a-world-leading-constitution>, archived at <https://perma.cc/654B-N5NT>. See Institute for Statelessness and Inclusion, The World’s Stateless: Children (Wolf Legal Publishers 2017). African Charter on the Rights and Welfare of the Child, adopted 11 July 1990, OAU Doc CAB/LEG/24.9/49 (entered into force 29 November 1999) (‘ACRWC’). 257