CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 other group naturalisations considered above – “naturalisations” of this type do nothing to resolve the status of stateless persons in another country. It seems that there was no intention that the passports would provide the right to enter and reside in the Comoros, and that they would serve simply as a form of identification document in the UAE or Kuwait, enabling the authorities there to avoid the obligation to resolve their status as nationals. Proof of nationality Although national identity cards and passports are the most commonly used documents to prove nationality for day-to-day purposes, they are often stated not to form legal proof of that status. In some countries, the burden of proof is reversed if a person holds such a document, meaning that it is for the person or institution (including the government) that asserts that the person is not a national to prove that it was issued in error.334 However, the burden of proof falls on the person asserting that he or she is a citizen to prove that is the case to the satisfaction of the authorities, even if there is only an application to renew a national ID card or passport. The African Court of Justice on Human and Peoples’ Rights, however, has ruled in two cases that if a person has shown a prima facie case that he or she is a national, notably by holding documents issued by the state to that effect, it then falls on the state to disprove this claim (see heading The African Court on Human and Peoples’ Rights). Many countries provide for an individual to obtain a “certificate of nationality” in case of any doubt around their status, a document that is legal proof of nationality. This is a useful protection where a person belongs to a minority that faces discrimination in the issue of identity cards, leading to a risk of arbitrary rejection on application for an identity document and consequent risk of statelessness if this refusal cannot be overturned. Among the SADC countries, Angola, Botswana, DRC, Eswatini, Lesotho, Malawi, Mauritius, Namibia, Seychelles, South Africa, Tanzania, Zambia and Zimbabwe all have such a provision.335 However, in these cases, the issue of the certificate is not a right but at the administrative discretion of the authorities, and not provided through a process that is subject to sufficient due process guarantees. In practice, a certificate of nationality is rarely issued in these countries other than to a person who has naturalised.336 Ideally, a person should be able to go to a court with relevant documentation and testimony, to obtain a legal ruling on whether he or she is a national: this is the system in Madagascar, in line with other former French territories, where the civil tribunal may issue a certificate of nationality which serves as proof of nationality, unless overturned by another court on the basis of new evidence.337 Madagascar also incorporates the civil law concept of possession d’état, or apparent status: a person’s nationality can be 334 For example, the Zambia National Registration Act, No. 19 of 1964, sec. 12, provides that a national identity card is prima facie evidence of the facts stated therein (including citizenship); in Botswana both a birth certificate and National ID card are prima facie proof of facts they state (Births and Deaths Registration Act No.48 of 1968, as amended (Cap.30:01), sec. 10(2); National Registration Act No.26 of 1986 as amended (Cap.01:02), sec. 13). In the Seotsanyana case from Lesotho (see footnote 292), the High Court stated that the authenticity of an existing passport may be challenged, “but only on legitimate grounds and by following recognized legal procedures and processes”. 335 Angola Lei No.2/16, sec. 29; Botswana Citizenship Act 1998, sec. 21; DRC Loi No.04/024 du 12 novembre 2004 relative à la nationalité congolaise, arts.42, 43 & 47; Lesotho Citizenship Order 1971, sec. 24; Malawi Citizenship Act 1966, sec. 30; Mauritius Citizenship Act 1968, as amended, sec. 16; Namibia Citizenship Act 1990, sec. 15; Seychelles Citizenship Act 1994, sec. 13; South Africa Citizenship Act 1995, sec. 16; Swaziland Constitution 2005, art. 54; Tanzania Citizenship Act 1995, sec. 21; Zimbabwe Citizenship Act 1984, sec. 18. 336 In Lesotho, the procedure has been used to provide certificates to two women who were married to Basotho men, whose husbands died before the naturalisation process had been completed. Ministry of Home Affairs Lesotho, response to request for information from UNHCR, May 2020. 337 Ordonnance n° 60 - 064 du 22 juillet 1960 portant Code de la nationalité malgache (tel que modifié), arts. 79 & 87-89. UNHCR / December, 2020 80