Realising the Child’s Right to a Nationality in South Africa
after completing his Bachelor of Law. He was threatened with deportation, only
staying in South Africa because there was no country to which he could be
deported. During this process, he was not given any formal notice about decisions
regarding his citizenship, nor was he provided with written reasons. He was left to
guess why his identity number had been blocked. The Court intervened and found
that such administrative practices were unjust and unconstitutional. Section 25 of
the Citizenship Act grants such special statutory review powers to the High Court
but is hampered by the fact that hardly anyone can afford legal intervention and,
even then, applicants are delayed in obtaining a remedy due to the lack of written
decisions and reasons.131 Even if the applicant’s citizenship is restored, they would
have unnecessarily lost a significant number of years to statelessness.
The South African Court’s finding is in line with the judgment by the African
Court on Human and Peoples’ Rights in Anudo, which found that the arbitrary
denial of citizenship amounts to arbitrary deprivation of citizenship.132 The Court
also found that the burden of proof in such cases falls on the state and not on the
individual. The Court relied on arts 13 and 14 of the ICCPR, which guarantee due
process.133 The same is provided for under art 7 of the Banjul Charter.134 The
aforementioned cases demonstrate the crucially important role that administrative
justice (due process) plays in enabling access to the right to nationality.
Ideally, children should have access to an independent monitoring body that
can automatically review citizenship denial or deprivation.135 Such a process
should be free and child-friendly to enable maximum protection. Only once this
process has failed should judicial review be considered. Excessive and unfettered
discretion in nationality decisions is detrimental to the right to nationality and has
increased the occurrence of statelessness in South Africa. The prevention and
eradication of statelessness in South Africa cannot be achieved without just
administrative action (due process) in nationality matters.
A
Does the Official Definition of Statelessness Include Those Who Are
Without Nationality Because of Undue Process?
The category of affected persons described in the previous part is not merely
‘persons of undetermined nationality’ (a sub-category of persons at risk of
statelessness), as defined by UNHCR for statistical purposes.136 They are also not
without a nationality simply because they have not attempted to acquire one.
Instead, they have been deprived of their nationality arbitrarily after a series of
attempts to access their lawful and determinable citizenship. They have long been
ignored by international law, presumably because UNHCR is reluctant to classify
them as stateless for fear of it resulting in massive portions of states’ populations
becoming stateless instead of citizens.137 This might tempt countries of residence
131
132
133
134
135
Citizenship Act (n 24) s 25.
Anudo v Tanzania (n 117).
ibid 100, 111.
Banjul Charter (n 2).
See generally UN Human Rights Council, Impact of Arbitrary Deprivation of Nationality on
the Enjoyment of the Rights of Children Concerned, and Existing Laws and Practices on
Accessibility for Children to Acquire Nationality, Inter Alia, of the Country in Which They
Were Born, If They Would Otherwise be Stateless, UN Doc A/HRC/31/29 (16 December
2015) [42]–[47].
136 UNHCR, Quick Guides: Researching Statelessness (Guidebook, March 2021) 56.
137 UNHCR Handbook (n 73) 58.
277
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