Tuesday, 24 June 2014

GUEST POST: The dream of a common identity - Statelessness and Nationality in Africa

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

Thursday, 12 June 2014

The story behind finding some of Europe’s invisible people

Although hundreds of thousands of stateless people live in Europe, finding them can be a challenge at times. An important part of the ENS campaign to improve protection of stateless persons in Europe is helping to take away the invisibility of the issue of statelessness in Europe. As part of this campaign, testimonies of stateless individuals in Europe have been collected in an effort to give statelessness a ‘human face’.
Contributing to this campaign, the Statelessness Programme at Tilburg University has been gathering stories of stateless persons in the Netherlands since September 2013. The Netherlands has not established a statelessness determination procedure, which means that it is unclear how many stateless persons there are in the country. In 2010, over 85,000 people were registered with Dutch municipalities as stateless or “nationality unknown” – many of the latter may also be in fact stateless. In this blog post I would like to take you through the journey, the challenges and surprises, of giving a ‘human face’ to statelessness.
Identifying stateless persons
Many individuals, non-profit organizations and NGO’s find the phenomenon of statelessness very confusing or do not have a full understanding of what it means. So where does one begin in first locating and then trying to identify an individual as stateless?  At first, it seems like looking for a needle in a haystack, but after seven months of work I was able to meet 15 stateless persons and families, all with different backgrounds, which helped painting a clearer picture of the countless situations which exist for a person to be or end up stateless in the Netherlands.
In the first two months I had contacted 200+ organizations across the country that in some way deal with (irregular) migrants, and many of them had questions about how to identify stateless people. They felt unable to distinguish stateless people from other non-nationals: in their eyes, many of the irregular migrants they assist face the same issues, including being unable to return to their country of origin and the inability to prove their nationality or to acquire identity documents. Nonetheless, with help from students at Tilburg University, fellow colleagues and interns at the Statelessness Programme but also lawyers, volunteers at non-profit organizations and religious institutions I was able to get in touch with stateless people who would be willing to share their story.
I have met stateless persons from as young as 3 months right up to 80 years of age from different countries including Myanmar, China, Congo, Ukraine, Viet Nam, Macedonia, Iraq, Azerbaijan, and Palestine but also children born stateless in the Netherlands. Some have never been recognized as a national of any state while others had their nationality withdrawn for a variety of reasons and are unable to reacquire their nationality.
Challenges faced by stateless people in the Netherlands
Some of the stateless persons I met possess a residence permit, often based on an immigration amnesty law which was adopted in 2007. They face the problem that they are now unable to naturalize because of their inability to prove their statelessness. I also met stateless people who are staying irregularly in the Netherlands. The lack of a statelessness determination procedure is causing inadequate protection for these people. As a matter of fact, more than half of all persons I met have never even acquired a residence permit, even those that have been living here in the Netherlands for over 15 years. As a result, they have been completely dependent on interim-aid from, for instance, shelters and churches. I noticed a common wish shared amongst them – to return to their homeland and if that is not possible to be somewhere in the world where their statelessness is acknowledged. For many of them, what seems like such a simple wish is accompanied by countless procedures, a web of requirements they are unable to meet, and the lack of proper documentation.
Many people live in fear of being detained because of their residence status and, therefore, live in loneliness and some have not left the city or village in which they have lived for years. Others have been traumatized from being detained multiple times for not possessing identity documents, not only in the Netherlands but also abroad, and struggle with psychological and physical health issues due to stress, about the constant worry about their legal procedures and their desperate hope to acquire a regularized stay and feel human again. This was prevalent, especially amongst the young adults, many of whom mentioned that they do not have any prospects for realizing their future plans such as studying, working, having a family or being able to travel. Hopes and ambitions shared amongst many of their peers. They say not to have any form of control over their own lives because all they can do is wait, wait for a residence permit which enables them to have a normal life.
It has really been an eye-opening experience for me to see the poor conditions that some of these stateless persons are forced to live in here in the Netherlands. Some of them are living in real poverty, moving between makeshift shelters such as the ones which have been constricted in a parking garage with little access to running water and electricity, or inside a former prison, knowing that in three months it will be time to pack up again and look for a new ‘home’. My first reaction to this was: how is it possible that people have to live in such circumstances in what is a so-called ‘first-world country’?
As mentioned, I also met stateless people who possess a residence permit and their human rights are, contrary to those who are irregularly in the Netherlands, much better protected. It has been very interesting to see their perspective on the phenomenon of statelessness, especially after meeting the stateless persons who do not have a legalized stay in the Netherlands. According to them, not having a nationality disadvantages them in some ways, such as not being able to vote or to travel to some countries but most of them are studying at a university and they are all determined to make a good living. They refuse to let the fact that they do not have a nationality keep them from their ambitions and dreams to better themselves - instead it is just a personal circumstance that requires more administrative work for them and more bureaucracy.
Some reflections
In the past eight months I have been able to get to know only 15 of the 600,000 stateless persons in Europe a little better. One of the challenges with this storytelling project was, at first, building trust with some of the stateless persons and letting them know that they will not get in trouble for sharing their story and giving insights of what it is like to being stateless and living in a European country. After spending some time with the stateless persons, they actually truly appreciated that someone is taking the time to talk with them and listen to their story.
What upsets me the most is to know that these persons, who are just a few faces in the crowd of thousands of stateless persons in Europe, do not receive adequate protection from the country in which they currently live. When they explain to me how statelessness affects their daily lives, I can see sorrow and confusion reflected in their eyes, along with a faint spark of hope when they express their wishes for the future. I can feel that they are tired and frustrated of being stuck in legal limbo. Yet they acknowledge that it is important to share their story in order to raise awareness for the issue of statelessness, knowing it will not help their individual case at this point.
More attention is now being paid to statelessness in Europe, including thanks to this ENS campaign. Last month, Greg Constantine visited the Netherlands on the invitation of ENS and the Statelessness Programme. Working with Greg and seeing his dedication as a human rights photographer to make the issue of statelessness visible is admirable. For the past eight years, Greg has devoted his career to meeting stateless people worldwide but had yet to meet stateless people in a Western European country. During his visit here, he took his time really getting to know the stateless persons I had been speaking to and was able to capture the stories of these unique individuals through photographs. Afterwards, everyone was genuinely happy to have met Greg and found it an opportunity they would not want to miss. Besides telling their own stories, they were curious to hear more about Greg’s work. For instance, a stateless Rohingya from Myanmar said: ‘I am so happy to have met Greg. He has been to Myamar and Bangladesh several times and it feels good to talk about my situation with someone who understands and knows from experience what it is like there’. A photo essay with these stories will be ready by September, in time to be exhibited at the First Global Forum on Statelessness in The Hague and to be used as part of the ENS campaign.
It is also fantastic news that more than 3500 people have already showed concern and signed the ENS petition to protect statelessness in Europe since it was launched three weeks ago. However, more signatures are needed to show leaders of Europe that the issue of statelessness cannot be ignored.
Sangita Jaghai, Intern at the Statelessness Programme
Note that this blog post first appeared on the website of the European Network on Statelessness, here: http://www.statelessness.eu/blog/story-behind-finding-some-europe%E2%80%99s-invisible-people.