Safeguards against childhood statelessness under the African human rights system
There are hundreds of thousands of people living in Africa who are stateless, and many more whose nationality is in doubt or is disputed. Looking at the situation in Africa, at a practical level, we see several obstacles to effectively realise the right to a nationality, one of which is clearly related to the absence of legal and functional safeguards against childhood statelessness in domestic nationality laws. Indeed, “only 13 African countries specifically provide in their nationality laws that children born in their territory who would otherwise be stateless have the right to nationality, while some 17 countries do not have a provision granting nationality to children of unknown parents”.
In the absence of such safeguards, it is difficult to ensure that every child in every jurisdiction will obtain a nationality, whether that of his or her parents, or of the State where he or she was born. Focusing on the African Children’s Charter and the Draft Protocol on the Specific Aspects of Nationality and Prevention of Statelessness in Africa, this essay discusses the available principles that protect children from statelessness. It analyses, in particular, the availability of provisions which require State Parties to grant nationality to every child who would otherwise be stateless.
2. The African Charter on the Rights and Welfare of the Child
With a view to addressing the challenges of childhood statelessness in Africa, the African Union has established notable normative frameworks. Among these instruments, the African Charter on the Rights and Welfare of the Child (ACRWC) plays the primary role. The ACRWC was adopted in 1990, shortly after the establishment of the UN Convention on the Rights of the Child (CRC). Article 6 of the African Children’s Charter recognises three interlinked rights and imposes an obligation on State Parties to take legislative measures to prevent statelessness among children. Article 6(1) establishes the right to a name; Article 6(2) the right to birth registration; and Article 6(3) the right to a nationality. Article 6(4) imposes an obligation on State Parties to ensure that their constitutional legislation recognises the principles according to which a child shall acquire the nationality of the state in the territory of which he/she has been born if, at the time of the child’s birth, he/she is not granted nationality by any other state in accordance with its laws. This provision harmonises the Charter with the principle established both by the 1961 Convention on the Reduction of Statelessness (1961 Convention), prescribing that a child who would otherwise be stateless shall have the nationality of the state in which he or she is born, and the Convention on the Rights of the Child (CRC) which obliges State Parties to realise every child’s right to acquire a nationality.1
Seeking to spell out and explain the obligations of State Parties under Article 6, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) adopted a General Comment. Looking at the explanation provided in the first paragraphs of the General Comment, there are two main factors which convinced the Committee to develop the General Comment. The first is related to the observations that the Committee derived from State Party Reports on the status of the implementation of the right to birth registration. The Committee noted that the rights included in Article 6 are among the rights that consistently appear not to be fully implemented by States Parties. Despite the impressive ratification of international and regional instruments on children’s rights by AU Member States, implementation of the rights to nationality and birth registration remain major challenges. This can be understood by referring to the Committee’s concluding observations and recommendations to State Parties.2
The second reason is the gravity of the problem of unregistered births in Africa as recorded by various reports and studies. The Committee noted that millions of children go unregistered every year. A 2013 UNICEF Report revealed that 230 million children under the age of five had not had their birth registered, and the lowest rate of birth registration globally is in South Asia and in Sub-Saharan Africa. This unfortunate lack of an effective and well-functioning birth registration system leaves children in a precarious position when it comes to claiming nationality, which may also expose them to the risk of becoming stateless. Even though the right to birth registration does not confer nationality in itself, the Committee notes that it could serve as a proof of the nationality of the parents or the place of birth. The Committee, therefore, takes lack of functional and universal birth registration systems as the main obstacle to the effective realisation of the right to a nationality in Africa.
The Committee’s approach to childhood statelessness is in line with the obligation of State Parties as it is envisaged in Article 6(4) of the Charter. In order to give effect to the rights enshrined in Article 6, the Committee prescribes that State Parties have to keep in mind their overall obligation to respect, protect, promote, and fulfil children’s rights in accordance with their obligations stemming from Article 1 of the ACRWC, which requires States to “undertake the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter”. With a view to addressing childhood statelessness, the Committee specifically requires State Parties which do not have civil registration laws to adopt them, those whose civil registration laws are not implemented to implement them, and those whose laws are deficient or outdated to align them to the required standards through law reform, drawing inspiration from the present General Comment and best practices from other State Parties. This should be done with an understanding of the principle of interdependence and indivisibility of children’s rights in general and the interdependence and indivisibility of the three rights provided for under Article 6 in particular.
The position of the Committee on childhood statelessness could also be inferred from its first decision on the situation of children of Nubian descent in Kenya. In its decision, the Committee found the Government of Kenya to be in violation of the right to non-discrimination, nationality, health and health services, protection against statelessness, and education of children of Nubian descent living in Kenya. The Committee urged the Government of Kenya to take all necessary legislative, administrative, and other measures to ensure that children of Nubian descent in Kenya—who are otherwise stateless— acquire a Kenyan nationality and the proof of such a nationality at birth. The Committee also held that: “Article 6(3) does not explicitly read, unlike the right to a name in Article 6(1), that ‘every child has the right from his birth to acquire a nationality’”. It only says that ‘every child has the right to acquire a nationality’. Nonetheless, a purposive reading and interpretation of the relevant provision (Article 6(3)) strongly suggests that, as much as possible, children should have a nationality beginning from birth. This interpretation is also in tandem with Article 4 of the African Children’s Charter that requires that “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. The Committee also states that legal and other measures should be adopted to ensure that nationality is acquired by a child at birth not only on the basis of descent from a citizen without restrictions (such as limitation of transmission of nationality to one generation only for children born abroad), but also on the basis of birth in the territory of the State.
As already recommended in the children of Nubian descent case, the Committee prescribed that States should adopt provisions giving children born in their territory the right to acquire nationality after a period of residence that does not require the child to attain majority before nationality can be confirmed. Further, the Committee encourages African States to facilitate the acquisition of nationality by children who were not born in their territory but who arrived there as children and have been resident there for a substantial portion of their childhood.
3. The draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Rights to Nationality and the Eradication of Statelessness in Africa
The African Charter on Human and Peoples’ Rights (the Charter) is a regional instrument which was adopted in 1981 and came into force 1986. The Charter contains no provision which specifically deals with the right to nationality and prevention of statelessness. However, cases involving matters of the right to nationality and statelessness, including the hallmark case of the nationality of the former President of Zambia, Kenneth Kaunda, have been brought before the African Commission on Human and Peoples’ Rights.3
However, the Commission decided to also develop a Protocol on nationality rights and prevention of statelessness in Africa. Through a collective effort by the African Union, the African Commission, the UN High Commissioner for Refugees, the Open Society Initiative, African civil society organisations, and other partners, a draft on the Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Rights to Nationality and the Eradication of Statelessness in Africa has been produced. The Draft Protocol seeks to provide legal solutions for the resolution of the practical problems linked to the recognition and the exercise of the right to a nationality, to eradicate statelessness, and above all to identify the principles that should govern relations between individuals and States in relation to these issues.
Taking prevention of childhood statelessness as one of its primary areas of focus, the Draft Protocol prescribes a number of provisions which could play a significant role in the eradication of childhood statelessness in Africa. For instance, Article 5 of the Draft Protocol addresses the principle of ‘Nationality from Birth’. Nationality from birth in this provision entails that children must be accorded nationality from the moment of birth, or, in some cases, the retrospective recognition of nationality from birth. The Article requires that State Parties automatically confer nationality to the following groups of children from birth: a child with at least one parent who has the nationality of that State at the time of the child’s birth; a child born abroad if either of the child’s parents has its nationality and was born in its territory; or the child would otherwise be stateless.4 Moreover, a child born in the territory of the state of one parent also born in the territory of the state and a child born in the territory of the state of parents who are stateless or of unknown nationality shall also be attributed nationality at birth.
Article 5(2) requires states to recognise nationality from birth retroactively for some groups including to a child found in the territory of the State of unknown parents, who shall be considered to have been born within that territory of parents possessing the nationality of that State; to a person born in the territory of the State who has remained habitually resident there during a period of his or her childhood; and to a child adopted by a national. Additional safeguards are also prescribed in Article 6 of the draft Protocol, which provides both for the acquisition of nationality through naturalisation on the basis of long term residence in a State and also for facilitated acquisition of nationality by other categories of person. Particularly, Article 6 requires States to facilitate the acquisition of nationality by different categories of children if they are not entitled to nationality from birth. These categories include: a child of a person who has or who acquires its nationality; a child born in the territory of the State to a non-national parent who is habitually resident there; a person who was habitually resident in its territory as a child and who remains so resident at majority; and a child in the care of a national of the State.
Furthermore, Article 10 of the Draft Protocol provides for more specific safeguards which can play a great role in preventing childhood statelessness. Under the title ‘Nationality and Children’s Rights’, Article 10 prescribes for a State Party to adopt legislative and other measures to ensure that every child is attributed a nationality at birth and is registered immediately after birth. Drawing from the Convention on the Rights of the Child and the African Children’s Charter, the Draft Protocol puts conditions on the considerations of the principles on the best interest of the child and consideration of the views of the child in all actions concerning the nationality of a child undertaken by any person or authority.
Looking at the provisions included in the African Children’s Charter and the initiatives at the ACERWC, one can learn that the African human rights system prescribes safeguards which could prevent childhood statelessness in the continent. Although there is a lack of a clear and specific provision on prevention of childhood statelessness under the African Charter on Human and Peoples’ Rights, this can easily be remedied through the detailed provisions under the upcoming Protocol on the specific aspects of nationality rights and prevention of statelessness in Africa. The African Children’s Charter and the Protocol, once the latter is ratified by the African Union Policy Organs and the Member States, provide principles which could guide Member States in their endeavours to tackle the problem of childhood statelessness in their respective jurisdictions. The monitoring organs, particularly the ACERWC and the Commission, therefore, should assume their responsibility in establishing accountability against State Parties while following up the implementation of the provisions. The two organs should also work towards harmonising their jurisprudence on matters related to childhood statelessness with a view of establishing an integrated approach in addressing the plight of childhood statelessness in Africa.
1 In this regard, it is important to note that both Article 6(1) of the ACRWC and Article 7(1) of the CRC adopted the wording of article 24(3) ICCPR and not that of Principle 3 of the UN Declaration on the Rights of the Child (1959) which prescribes that ‘the child shall be entitled from his birth to a nationality’. However, as it is noted by the UN Human Rights Committee ‘states are required to adopt every appropriate measure…to ensure that every child has a nationality when he is born’. See also General Comment No. 17 of the UN Human Rights Committee (1989); Article 24, Rights of the Child, paragraph 8 (HRI/GEN/1/Rev.8 (May 2006).
2 Recommendations and Observations to the Governments of Tanzania, Kenya, Burkina Faso, Cameroon, Libya, Mali and Uganda by the African Committee of Experts on the Rights and Welfare of the Child concerning the Initial Report on the Implementation of the African Charter on the Rights and Welfare of the Child, available at http://acerwc.org/state-reports/
3 See also African Commission on Human and Peoples' Rights (ACHPR), Communication No. 97/93, John K. Modise v. Botswana; Communication No. 212, Amnesty International v. Zambia; Communication No. 159/96, Union Interafricaine des Droits de l’Homme and Others v. Angola; Communications Nos. 27/89, 49/91 and 99/93, Organisation Mondiale Contre la Torture and Others v. Rwanda; Communication No.71/92, Rencontre Africain pour la Défense des Droits de l’Homme v. Zambia; Communication 211/98, Legal Resources Foundation v. Zambia; Communication 292/2004, Institute for Human Rights and Development in Africa v. Angola; Communication No. 249/02, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Republic of Guinea; and Communication No. 246/02, Mouvement ivoirien des droits humains (MIDH) v. Côte d’Ivoire.
4 In this regard, Article 5 (1) (a) of Protocol to is in line with the International Covenant on Civil and Political Rights (Article 24(3)), the CRC (Article 7 (1)) and the Convention on the Reduction of Statelessness (1961) (Article1).