Tshepiso* is the
mother of a boy named Lefa*, a beautiful two year old child born in South
Africa. Lefa would have been no less special had he belonged to any other
nation in the world. Unfortunately, in the entire world, there is no nation who
will acknowledge his existence and offer him access to citizenship under its
legislation.
Lefa is the
second generation in his family to be affected by long term rejection of birth
registration applications due to an inability to meet the requirements of an
overly strict birth registration act. Although Tshepiso and Lefa have a claim
to South African citizenship by law, strict birth registration laws and the
implementation of those laws have rendered them stateless. Tshepiso has been
attempting to access her nationality in South Africa for ten years without
success. Both Tshepiso’s and Lefa’s applications for acknowledgement of
citizenship have been formally rejected on numerous occasions over a prolonged
period indicating that the state does not recognise them as citizens under the
operation of its laws.
Tshepiso is a
South African through descent in terms of the South African Citizenship Act. She
was born in neighbouring country, Lesotho. In order to be formally recognised
as a South African, she is required to provide the authorities with a foreign
birth certificate from her country of birth. This country is Lesotho, a country
with a birth registration rate of less than 25%.
Like many other
Lesotho born children, Tshepiso’s birth was never registered in Lesotho. She
was sent to live with her grandparents in South Africa by the age of three without
any proof of origin. In the last ten years, Tshepiso has tried everything to
meet the requirements of the Births and Deaths Registrations Act, but is barred
by the absolute requirement of a foreign birth certificate which she has tried,
but failed to obtain. She has been undocumented for the past 30 years, despite various
attempts at proving her nationality claim.
Lefa’s father is
a documented South African citizen. He wants to acknowledge paternity and pass
nationality to his son. The South African authorities have repeatedly refused
to register Lefa’s birth, because his mother is undocumented. This is blatant discrimination
against children born to undocumented parents and against unmarried fathers who
cannot acknowledge paternity of a child born out of wedlock where the mother is
undocumented. Tshepiso could never legally marry Lefa’s father without a
document and Lefa certainly has no control over the lack of documentation of
his parents. Nevertheless, Lefa is being punished for his parents’ marital status
and lack of documentation through the refusal to register his birth.
It seems
contradictory that upon the 20 year anniversary of South Africa’s democracy,
there are still people who cannot access the right to equal citizenship. This
means that these people are excluded from political participation, affecting
the principle of universal adult suffrage which is a founding value of
democracy. In South Africa, being documented is compulsory. The new immigration
rules are very clear on this point.
However, pre-democracy, not all black people in South Africa were able
to register their births nor was there any expectation for them to do so. This
apartheid legacy continues for those persons for whom there were no state
interventions to assist them with birth registration. There is little
understanding or sympathy for persons in this situation.
This makes it almost
impossible for children whose parents’ births are unregistered to prove their
South African descent. There is a common misconception, amongst state officials
and the public, that a person only becomes a citizen once the state has issued
the person with an identity document. This often results in the arrest and
immigration detention of undocumented citizens.
Labour migration
in Southern Africa has been taking place for hundreds of years. There is a
mixed-nationality heritage in border communities and often, people are not even
conscious of their own nationality status or that of their ancestors. Still,
Lesotho, for instance, does not allow dual nationality and South Africa is
suspicious of residents who were born or sojourned in a foreign country. The consequence
is that whole communities are exposed to the risk of statelessness.
Characteristics
of the Apartheid-era in South Africa created a very particular breeding ground
for statelessness, including the irregular and incomplete registration of blacks,
forced renunciation of nationality claims, the refusal to issue official
documents to blacks acknowledging their nationality (passbooks for blacks referred
to a person’s tribe rather than citizenship), forced migration due to political
persecution and lack of employment opportunities for blacks. Before democracy
black people were often forced to renounce a claim to South African nationality
if they needed to travel across borders to neighbouring countries. One person told LHR that he was issued with a
Stateless passport in order to travel internationally. The nationality status
of blacks who resided in South Africa before democracy is shrouded in the uncertainty
caused by race discrimination and neglect.
These prevalent
practices during Apartheid all have one thing in common, they affected black
people. More critically affected were those living in rural areas where the
registration rate was and continues to be extremely low. Other ingrained
inequalities of that generation, like gender based discrimination, the
invisibility of people with disabilities and poverty increased the
vulnerability of this group. It is significantly more difficult for people
within this group to prove their identity, than those who were not affected
historically. Without proof of one’s parents’ citizenship status it is
impossible to access nationality in South Africa. The legacy South Africa has inherited
is a continuing inequality in access to equal (or any) citizenship. Apartheid,
it seems, lives on.
The African
Commission on Human and People’s Rights (ACHPR) has recently adopted a resolution
regarding the protection and promotion of the right to nationality. A study
into the level of access to nationality in Africa has been launched and all
member states are asked to participate. The information gathered from across
Africa will support the drafting of a protocol on the right to a nationality in Africa to the African Charter
on Human and Peoples’ Rights.
This is very
promising news, especially on a continent where tribes and families have been divided
along arbitrary colonial borders and separated through imposed foreign
citizenship under colonial rule. These divisions have sparked many conflicts
and caused a myriad of violations to nationality rights since independence.
Africa is finally taking back its inheritance by pursuing the inclusion of all
Africans in its history and its future.
South Africa
should sit up and take notice of these international advances in a very
important, but severely neglected, field. It is only fitting that a country which
has pioneered the achievement of human rights on the continent in the past 20 years
should be on the foreground of the achievement of equal nationality rights.
In the meantime Lefa
will be going to school soon, but not without a birth certificate. Tshepiso is
determined to get her son registered no matter what the cost. Tshepiso’s
relentless pursuit of her right to citizenship is truly commendable. I often
get a glimpse of the strength of the human spirit through my clients’ lives. I
respect them for their perseverance.
In the fight
against statelessness, I hope we are fortunate enough to restore more than
nationality to our clients. I hope that
we can restore legitimacy by giving them a voice. I hope we can instil in the
world a dream of a common identity.
*Not their real names
Liesl Muller is an Attorney in the Statelessness
Project within the Refugee and Migrant Rights Programme at Lawyers for Human
Rights in South Africa. Access LHR’s publication on statelessness and
nationality here: http://www.lhr.org.za/publications/statelessness-and-nationality-south-africa
