The Right to Belong: Dealing With Statelessness in Sub-Saharan Africa

Author:  Michael Addaney

‘Statelessness is a profound violation of an individual’s human rights. It would be deeply unethical to perpetuate the pain it causes when solutions are so clearly within reach.’

Antonio Guterres, United Nations High Commissioner for Refugees (UNHCR)

In recent years statelessness has become a major concern in various contexts and levels particularly within Africa. Often, statelessness is associated with displacement through armed conflicts as well natural disasters and hence overlaps with the flow of refugees and Internally Displaced Person (IDPs). With Africa’s colonial heritage, critical issues arose from the succession of states and the determination of national status within emerging and transitional states. Moreover, most African states have different approaches in determining nationality and civil status which inadvertently conflict with the legal and policy frameworks of other states. All the above situations create statelessness.

Statelessness refers to the condition of an individual who is not considered as a national by any State under the operation of its law. Statelessness as a legal problem has far reaching political and economic consequences which have attracted rising attention from scholars, human rights activists, and international organisations in recent years. The UNHCR started collecting data on stateless persons in the world in 2006. In 2011, it confirmed that the number of stateless persons around the world is in excess of 10 million despite conceding that obtaining the actual statistics is difficult (pdf).

Among others, practical problems faced by stateless persons are the difficulty in obtaining legal identity as well as travel documents which affect the enjoyment of their basic human rights. This affects their day-to-day life since it restricts their mobility and accessing of basic social services such as health, education and housing. Undeniably, stateless people are mostly without legal status and feel left out of society. In some instances, it can lead to prolonged incarceration and hinder their social cohesion and integration. Therefore, promoting recognition and strengthening the protection of the fundamental human rights of stateless persons is the best strategy to tackle such concerns.

For instance, Galjeel in Kenya are of Somali descent and have lived there for over 8 decades. They possessed Kenyan IDs and participated fully in national life including elections and accessing social services. However, the introduction of the screening system in 1989 to identify irregular migrants from Somalia led to the confiscation of the IDs that linked them to Kenya. Most of them became stateless and lost the rights that they used to enjoy in Kenya for several decades. Also, more than 120,000 persons in Madagascar are stateless on the basis of discriminatory citizenship laws and administrative procedures (pdf). Moreover, about 170,000 Burundian refugees who fled their country in 1972 are recognised as stateless in Tanzania despite cogent attempts by international and local organisations to have the situation rectified.

Another recent example is the story of Mary, a Liberian refugee born in Liberia to Liberian parents who gave birth to a child in 2003 in Ghana where she is now resident. The father of the child is unknown. Per Act 20 (1) of the Liberian Constitution, ‘The following shall be citizens of Liberia at birth… a person born outside Liberia whose father was born a citizen of Liberia or was a citizen of Liberia at the time of the birth of such child and has resided in Liberia prior to the birth of such child.’ Also, the 1992 Constitution of Ghana provides in article 7 that ‘a person is a citizen of Ghana by birth if he was born in or outside Ghana and at the date of his birth either of his parents or one grandparent was or is a citizen of Ghana’. From this case, Mary’s child does not have a nationality and is therefore ‘stateless’. Statelessness is often an outcome of gaps in nationality laws, arbitrary deprivation of nationality, processes relating to State succession and restrictive administrative practices.

Conversely, article 15 of the Universal Declaration of Human Rights provides that ‘every person has an inherent right to a nationality’. The difficulty lies in determining which nationality that a person has the right to. Therefore, the United Nations adopted the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness as the main mechanisms for addressing this gap. These Conventions place emphasis on individual’s practical acquisition of nationality to ensure national protection for stateless persons. The 1954 Convention guarantees stateless persons right to administrative support (article 15), right to legal identity and travel documents (articles 27 and 28) and exempt from reciprocity requirements (article 7). It must be observed that if all African states sign or accede and ratify as well as apply the provisions in these Conventions effectively, the number of stateless persons in Africa would reduce drastically.

In 2014, the UNHCR revealed through its 2013 Global Trends Report that sub-Saharan Africa is home to about 750,000 stateless persons with 700,000 in Cote d’Ivoire and 20,000 each from Kenya and Madagascar respectively. The report however admits that DR Congo, Ethiopia, Eritrea, Madagascar, and Zimbabwe are hosting significant but unquantifiable stateless persons within their territories. This situation is worrisome, precarious and alarming because stateless persons are denied their basic human rights and fundamental freedoms which are universal and inherent.

Acting on the global conditions of stateless persons, the UN initiated a global campaign in 2014 to end this phenomenon within a decade. The success of this initiative in the sub-Saharan Africa region requires resolute commitment and pragmatic effort from the African Union and its machinery as well as the requisite political will from national governments. The African Commission on Human and Peoples’ Rights in the John K Modise v Botswana case in which the applicant was claiming the right to Botswana citizenship by descent held that challenges faced by stateless persons have dire implications on their fundamental human rights.  The Commission the therefore implored the state of Botswana to take appropriate measures to recognise the applicant as its citizen. Therefore, the African Union must begin to recognise the seriousness of the problem and design programmatic initiatives as well as result-driven advocacy at various strategic levels to pressure national governments to widen the right to nationality within their territories.

Ending statelessness in sub-Saharan Africa also demands national policies and legislations that comply with article 7 of the Convention on the Rights of the Child which provides that a child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality (pdf). And article 6(3) of the African Charter on the Rights and Welfare of the Child guarantees that every child shall has the right to acquire nationality. Enforced together, these provisions guarantee the right to nationality of every child particularly where the child would otherwise be stateless. Also, in the Nubian case, the African Committee of Experts on the Rights and Welfare of the Child held that the obligation of State Parties under the African Children’s Charter in relation to making sure that all children are registered immediately after birth is not only limited to passing laws and policies but also extends to addressing all de facto limitations and obstacles to birth registration.

Therefore, the African Union and the Regional Economic Communities must vigorously exert pressure on their member states to formalise quicker naturalisation of stateless persons to grant them protection. Moreover, the African Union, the Regional Economic Communities and Civil Society Organisations as well as stateless persons must work together assiduously to support African governments to achieve monumental results in eradicating statelessness on the continent.