Member States Experts Meeting on the Draft Protocol to the African Charter on Human and Peoples Rights on the Specific Aspects on the Right to a Nationality and the Eradication of Statelessness in Africa

Introduction
Nationality provides people with a sense of identity and creates a legal bond between a person and the State by enabling them exercise a certain range of rights. Thus, the lack of nationality can be really devastating to the lives of the individuals concerned. Despite the international recognition of the right to a nationality, there are almost 10 million stateless people around the world with hundreds of thousands of them living in Africa who find themselves « non-persons » in the only country they have always known as home.

In fact, statelessness can contribute to political and social tension including exclusion and denial of rights to large populations. The reason why these people are in this situation of deprivation of rights is that they are not recognized as citizens of the country where they live. They cannot register the birth of their children, nor enrol in school or university, many do not have access to public health services and find it difficult to obtain travel documents or work permits. Above all, they cannot vote or run for office or work for state institutions. This lack of recognition is often based on highly arbitrary and discriminatory grounds of race, ethnicity and gender. As a result, arbitrary denial of access to citizenship has become one of the major factors that have led to conflicts and impaired economic and social development in Africa and a threat to the achievement of the 2063 Agenda of the African Union.

Despite the high number of stateless persons across the world, this problem is particularly acute in Africa, because of the history of the creation of borders, border populations and migration within the continent. It is further exacerbated by weak capacity of many African states today and their inability or failure to respond appropriately to contemporary migration. Statelessness and deprivation of nationality have become political persecution tools and a means of exclusion, while ethnicity and race have been explicitly introduced as grounds for access to nationality in several countries, which goes against all international standards on non-discrimination as well as a threat to the African aspiration for a peaceful and an integrated continent. It is in consideration to the above that the African Union Commission, in collaboration with the African Commission on Human and People’s Rights and others stakeholders, strives to combat the denial of nationality and statelessness on the continent.

The Member States experts’ meeting to be held from 7 to 11 May 2018 in Abidjan, Côte Ivoire, and the ensuing STC will constitute an important milestone in addressing the issues of statelessness and the denial of nationality in Africa through the establishment of a continental legal framework on the issues.

Background and Justification

A stateless person is someone who is not considered a national by any State under the operation of its law. Across Africa, many people continue to suffer the deprivation and indignity of being denied nationality. Statelessness may occur for a variety of reasons, including discrimination against particular ethnic or religious groups or on the basis of gender; the emergence of new States and transfers of territory between existing States (State succession), and the conflict of nationality laws.

In Africa, despite the incompleteness of the African Charter on the issue of statelessness on the continent, the African Commission on Human and Peoples’ Rights, by a bold interpretation of the African Charter, has tried to limit the flexibility of States Parties tempted to use their national laws to deprive persons of their nationality. Most African countries do not have legislation that guarantees citizenship to any child born on their territory, which is in violation of their commitments under the African Charter on the Rights and Welfare of the Child.

African nationality laws are based on two basic concepts that are jus soli (right of soil), under which a person obtains citizenship if born in a particular country, and jus sanguinis (right of blood) under which nationality is based on the origin of the parents, who are themselves nationals. In general, legislation based on jus sanguinis will tend to exclude individuals nationality descendant of people who moved from one place to another. However, an exclusive diet of jus soli prohibit people whose parents are away from their « historic » home to apply for citizenship of this country, but rather includes the current residents of a specific territory. Besides these two principles based on birth, two other factors influence the determination of nationality for adults: marriage to a citizen and long-term residence in a country.

In light of the above, several voices have been raised to condemn this unacceptable situation and call for a thorough reform of African’s national nationality laws. The Conference organized by the African Union on the theme « Citizenship in Africa: Preventing Statelessness, Preventing Conflicts » in Nairobi (Kenya) in October 2012, made some recommendations including: Increasing awareness on issues of statelessness and the risks related to it, encouraging Member States to guarantee equal rights in the granting of nationality and citizenship to stateless persons and their rights holders, regardless of gender, race, religion or ethnicity, Invite the African Union to establish a framework of best practices for the identification, prevention and reduction of statelessness, provide additional Protocol on the right to citizenship in Africa in the African Charter on Human and Peoples’ Rights among others.

The African Union has subsequently taken initiatives to draft a continental study on the right to nationality and the fight against statelessness and for the drafting of this draft protocol. The Member States experts’ meeting on the Draft Protocol is held as part of the process established by the African Union to address the issues of statelessness and denial of nationality on the Continent.


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