CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 the exceptions in the SADC states, providing that all citizens have the right to a national identity document.274 It is striking that in most countries national identity systems are administered and issued by the executive branch of government. This is by contrast to voter identification, where African citizens have struggled for many years to wrest election administration from the executive to place it under the supervision or control of independent electoral commissions. Electoral laws have generally allowed for a wide range of evidence, including testimony from community leaders, as evidence of a person’s entitlement to vote, in recognition of the low rates of existing documentation among African citizens. National identity card administration is often more restrictive. As voter registration becomes increasingly tied to the presentation of a national identity card, especially in those states that have not previously had a national population register, lack of a national ID may also disenfranchise those who are in fact citizens of the country. However, there are no independent identity commissions yet established in Africa to oversee the issue of identity documents. Access to courts may also be limited through barriers of cost or lack of access to legal assistance, and in some cases excluded by law (see below: Judicial and other oversight of administrative decisions). Questions of proof of qualification for identity documents are particularly challenging in states with historically low rates of birth registration and newly introduced requirements to carry a national identity document: in southern Africa, these include especially Malawi and Tanzania; though Zambia also faces challenges despite a long-standing identity card, because of its continued very low rates of birth registration. Accordingly, the legislation usually establishes alternative means of proof of identity. In Botswana, for example, the law provides that “The registrar may require any person applying for registration under this Act to provide such documentary information as shall in the opinion of the registrar be necessary to establish the truth of the information stated in the application form”; registration may be refused if the information is not provided.275 The main document that must be supplied is a birth certificate; however, alternative evidence includes an affidavit relating to the birth, and evidence of connection to Botswana (e.g. school transcripts).276 In Namibia, the Identification Act states that a person seeking an identity document may be required to produce “such documentary or other proof of the correctness of such particulars as is within the power of such person to furnish”, while an investigation may be ordered into the truth of these particulars.277 While such provisions are necessary to accommodate those with no documents, in the absence of independent oversight they leave a great deal of discretion to the authorities responsible for national identity cards to decide what evidence may serve to prove nationality and entitlement to an identity document. In Malawi, neither the Act nor the implementing regulations issued in 2015 set out the evidence that must be submitted to prove that a person is a Malawian citizen.278 However, during the mass registration process in 2017, staff needed further guidance on what evidence to accept. A public statement from the Ministry of Home Affairs and Internal Security stated that proof of citizenship could be provided in three different ways: through documentary evidence; through village registers supported by testimony of the village head or local leaders; or through the testimony of two community witnesses. Existing identity documents were each given 274 Constitution of Zambia Amendment Act No.2 of 2016, Art. 42(b); Constitution of Zimbabwe 2013, Art. 35(3). 275 National Registration Act No.26 of 1986, sec. 7; as amended by National Registration (Amendment) Act No.11 of 2017. 276 Ministry of Labour & Home Affairs (MLHA), “National Identity Card (Omang)” http://www.gov.bw/en/Ministries--Authorities/Ministries/Ministry-of-Labour-Home-Affairs-MLHA/Tools--Services/Services--Forms/National-identity-application/, webpage accessed 05 December 2019; see also World Bank, “ID4D Country Diagnostic: Botswana”, Identification for Development Initiative (Washington, D.C.: World Bank, 2016). 277 Identification Act No.21 of 1996 sec. 9. 278 Malawi National Registration Regulations, 2015, UNHCR / December, 2020 71