CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 for citizenship “by KuKhonta” (that is, by customary law).95 Discrimination on ethnic grounds in relation to citizenship is common in practice in many other places, even if not explicitly stated in law. Similar discrimination applies in Madagascar, where a descent-based law, coupled with transitional provisions in favour of persons of “Madagascan origin” at independence creates the presumption that those not of “Madagascan origin” are not nationals.96 The recent reform of the law to create equal rights to men and women to transmit nationality to their children somewhat reduces the impact of these provisions, but does not remove it.97 Malawi restricted attribution of citizenship at birth to children with a parent of “African race” from 1971 (unless the child would otherwise be stateless), but the provision was repealed in 1992.98 Such laws and practices obviously create the danger of statelessness for persons born in the country who have citizenship in no other state but do not fulfil the explicit or implicit racial or ethnic conditions imposed. The failure of the state to recognise the nationality of whole groups of people is also a central element of some conflicts in Africa, for example the wars in Côte d’Ivoire and DRC. Multigenerational statelessness: In Madagascar … Asha is stateless woman of 51, with three children. She comes from a "Karana" family that has lived in Madagascar for at least three generations. During his lifetime, her father had tried without success to get recognition of his Malagasy nationality. Her mother, a migrant from Zanzibar, did not seek to regularise her situation until the end of her life. Asha had married a Malagasy man in 2006, following the legal steps required in Madagascar. She was already the mother of her eldest daughter, four years old at the time. She could have requested the nationality of her husband at the time of the marriage, an option offered by the law which she missed out of ignorance: "I did not know that I could, he had not offered it to me either." She divorced her husband after one year as a result of domestic violence so severe that it resulted in the miscarriage of a child. Statelessness was then passed on from generation to generation: both Asha and all of her surviving children are stateless. This situation makes Asha and her children more vulnerable. Her exhusband began to abuse her eldest daughter at the age of 11 and took her to live with him when she was only 15 years old. She was made pregnant and became a mother at 16. Powerless, Asha has lived this ordeal for years. Without work or any other source of income for almost a year, she lives on the charity of her neighbours, even begging to feed them. Above all, she wants her children to acquire Malagasy nationality: "because I am already an elderly woman, it is for the future of my children (...). At least my eldest may have a chance to get out of this misery she is living (...) I would like her to go back to school. If you could help us, help my daughter and my two other children to have nationality… ”. Story as told to Focus Development Association Madagascar; names have been changed. 95 “A person who has Khontaed, that is to say, has been accepted as a Swazi in accordance with customary law and in respect of whom certificate of Khonta granted by or at the direction of the King is in force, shall be a citizen of Eswatini.” Eswatini Citizenship Act No.14 of 1992, sec. 5. See also Constitution of Eswatini, Art. 42, which appears to provide that persons born before the constitution came into effect are citizens “by operation of law” if either parent is a citizen and also if the person is “generally regarded as Swazi by descent.” Article 43 of the constitution removes this (not entirely clear) ethnic basis for children born after the constitution came into effect, but entrenches gender discrimination, providing that citizenship is only passed by a father who is a Swazi citizen. 96 Ordonnance no. 1960-064 portant Code de la nationalité malgache, as amended, arts.9-10 and 90-92. 97 “Nouveau code de la nationalité, 1361 familles obtiennent leurs certificats”, L'Actualité (Antananarivo), 6 April 2018. 98 Malawi Citizenship Act, No.28 of 1966, secs. 4, 5 and 12-15 (provisions left in place by amendments in Acts No. 37 of 1967 and 5 of 1971). Those not “of African race” could naturalise. 27 UNHCR / December, 2020