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

GUEST POST: The benefits of birth registration to children, youth and governments

Plan is an international child-centred community development (CCCD) organisation, working across 50 countries in Africa, Asia and the Americas.  The United Nations Convention on the Rights of the Child (CRC) recognises that every child has the right to be registered immediately after birth and has the right to preserve his or her own identity through a nationality, name and family ties. In 2005, Plan officially launched its first global UBR campaign, now renamed ‘Count Every Child’ which has had a major impact globally on engaging communities and governments in birth registration. Plan also plays a pivotal role in influencing and strengthening the work of key human rights bodies in promoting adequate implementation and monitoring of the right to birth registration by states. In addition, Plan’s work on birth registration has led to the development of some important global partnerships such as with UNHCR on linking birth registration to statelessness.

Despite these achievements, little is still known internationally about the benefits birth registration can bring to children, youth and governments. Poverty and social disadvantage play a key role in determining which children are not registered and where. Global studies have empirically established that unregistered children tend to be poor, live in rural areas, have limited access to health and education and suffer from higher rates of malnutrition and mortality. Other primary research has also highlighted the many barriers to birth registration such as ethnicity and gender, rurality and cost. There is arguably now a growing consensus among international organisations working on birth registration about the groups of children most affected by non-registration and the barriers these children face in realising the right to birth registration.

The Committee on the Rights of the Child, the leading international authority on child rights, has interpreted the right to birth registration as helping to realise a range of other connected child rights linked to health, education, social welfare, work and the juvenile justice system to name just a few.  Plan and other international organisations have repeated this interpretation by long recognising birth registration as a tool to protect children from exploitation, such as child labour and child marriage, and as a means for children to access basic services such as health and education. There are numerous anecdotal examples of this analysis. For example, in some contexts schools have been known to refuse admission to a child, or to only temporarily admit them, until a birth registration certificate is produced. UNICEF has noted that although birth registration is linked to an array of rights and protections, ‘the exact linkages of cause and effect between the impact of birth registration and all these issues require much more research’. This view has been repeated by some commentators who have suggested that with the international community’s spotlight aimed at increasing registration rates, research needs to evolve in order to assess the benefits that birth registration delivers.

The importance of birth registration does not end with childhood. Birth registration also provides assistance in securing benefits and opportunities for youth. It has been anecdotally cited as a prerequisite for acquiring more ‘advanced’ or ‘sophisticated’ benefits and associated opportunities such as social security numbers required for employment in the formal sector, registration of a business, the ability to access credit, to open bank accounts or to be eligible for microfinance assistance and loans. In this context, Plan realises that birth registration could be important to youth, one of our key beneficiary groups, and its associated programmes, namely those focused on economic security. Birth registration can also be said to play a crucial role for the state. The Committee on the Rights of the Child regularly cite the need for robust and reliable statistical data for development planning and governance as well as the monitoring of progress towards realising child rights. Good governance requires that expenditure is allocated according to need and accurate population statistics arguably provide a means by which states can achieve this. Without accurate statistics, it may be hard to measure progress towards development indicators such as the Millennium Development Goals.

To help fill these research gaps, Plan International is seeking to appoint a multi-disciplinary team of consultants to undertake multi-country research to investigate these issues (autumn 2012). If you are interested in applying please see the Terms of Reference below for detailed information which provides key background information on the identified research gaps as well as the research objectives and research questions: http://plan-international.org/about-plan/consultancy-research-to-determine-the-benefits-of-birth-registration.

Applicants should submit an application package by the 16th September 2012 via email to lucy.gregg@plan-international.org

This Blog was prepared by Lucy Gregg, Research Coordinator at Plan International

To “do an Obama”

When digging up some extra teaching resources for a statelessness workshop in South Africa last week, my attention was drawn by a recent article in Zimbabwean newspaper The Standard, entitled “Zim birth threatens Banda’s second-term bid”. The piece was about accusations raised by political opponents, that Zambia’s current President, Rupiah Banda, is not in fact eligible for the presidency under the country’s own laws. For the Zambia’s top job, the Constitution requires not only that the presidential candidate is a citizen, but that both of his or her parents are also Zambian nationals. Banda’s opponents are now claiming that he is of Malawian parentage and the fact that he was born in Zimbabwe (then Southern Rhodesia) has further fuelled allegations about his non-eligibility for the presidential office.

This case is compelling for a number of reasons, not least because it isn’t the first time that the citizenship and heritage of a Zambian president has been questioned. Indeed, in one of the most remarkable statelessness-related cases that I have come across, the Zambian High Court ruled that Kenneth Kaunda, described by the New York Times as the ‘father of modern Zambia’, was stateless. Although not in power at the time, Kaunda had previously ruled the country as president for 27 years. And it was when Kaunda announced plans to run against the governing party and re-claim the presidency, that his political opponents challenged his citizenship in court. Should the court agree that he is not a national of Zambia, then Kaunda would automatically be barred from making good on his ambitions to return to office. After noting that Kaunda had renounced his Malawian nationality years before, the High Court ruled that he was also not a citizen under Zambian law, thereby declaring him stateless. (The following year, however, the Supreme Court overruled this judgment and Kaunda’s Zambian citizenship was recognised)

These Zambian cases are a perfect illustration of the politicisation of nationality. Although not always featuring such prominent individuals, the questioning and even manipulation of citizenship for political ends is not uncommon. Nor is it a tactic monopolised by countries that have recently embraced multiparty democracy, which brings me to the title of this post. In the Zimbabwean newspaper article that I referred to earlier and which inspired this piece, Rupiah Banda was reportedly being urged by his opponents to literally “do an Obama”, i.e. to substantiate his citizenship and eligibility the Presidency by responding to claims about his origins and ancestry. Earlier this year, the White House released President Barack Obama’s official birth certificate in order to refute, once and for all, the allegation that he was not born on US soil. Conspiracy theorists and political opponents had been pushing the rumour that Obama was born in Indonesia or Kenya (and was thereby unqualified for office), causing it to persistently resurface in the press since the time of the Presidential campaign. Having decided that these rumours were becoming an unhealthy distraction from important political debate, Obama released his original birth certificate which establishes his birthplace as Hawaii.

As organisations like UNICEF and Plan International continue to point out and Obama has now very publicly illustrated, birth registration is of critical importance to the protection of a person’s rights, throughout their lifetime. A birth certificate provides evidence of key facts about an individual, which can be used to verify identity, nationality and even eligibility to hold Presidential office. Worldwide, the births of some 50 million children go unregistered each year. Unless this is addressed, these children will not be able to “do an Obama” and produce a birth certificate when asked to do so in later life – for instance in order to obtain an ID card or passport, or to sit school exams. Yes, high profile cases like Rupiah Banda’s and Barack Obama’s are fascinating to follow, steeped as they are in political intrigue and conspiracy. But let’s hope that the underlying message is also received loud and clear: whatever your (political) ambitions in life, birth registration is key to giving you a fair start and can continue to play a part in protecting a your identity and rights throughout your lifetime.

Find out more about the link between birth registration and statelessness in this UNHCR policy note. To follow developments in the push for Universal Birth Registration, supported by UNICEF and Plan International, visit their websites. In the Netherlands, Plan has also set up a special campaign, Babies For Babies, through which you can directly support birth registration efforts.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme