As the world’s states consider how to reduce the plague of statelessness, nationality laws come increasingly under the microscope. That’s because if a child can only take on the nationality of their father, and the father is unknown or dies or disappears before a child is officially registered as his, then the child could well be doomed to a life without nationality or citizenship. Thus, ensuring that there is equality between women and men when it comes to conferring nationality on children, would help greatly in reducing statelessness around the world. The UN High Commission for Refugees keeps a careful watch on developments towards equality in this important, but often forgotten, area in the struggle to eradicate statelessness. Among its other findings, this year’s report notes that the nationality laws in several African countries do not provide mothers equal rights with fathers to confer their nationality on their children.
Nationality laws often seem random in the way that nationality, and thus citizenship, is conferred on children.
Take the case of the Bahamas, one of two states in the Caribbean that don’t allow women to confer nationality on their children on the same terms as fathers.
According to the nationality law of the Bahamas, children born in the country, to either a Bahamian father or mother, acquire Bahamian nationality. But if a child is born abroad, it may acquire nationality only through a Bahamian father, and not a Bahamian mother. There is an exception: unmarried Bahamian mothers may confer their nationality to their children born in or outside of the Bahamas.
To an outsider, reading about these differences, they make no sense.
But the Bahamas are far from the only place where anomalies like this are found. Many other countries still have laws that directly or indirectly bar women from conferring nationality on their children.
Some 60 years ago, most of the world’s states did not provide equal rights for women in nationality issues. But the 1979 convention on the elimination of all forms of discrimination against women (CEDAW) started a trend that has seen radical change for the better in this area.
According to the UNHCR’s latest survey of nationality legislation, equality between men and women in relation to the conferral of nationality on children has not yet been attained in 25 countries. These countries, located across the globe include a number in the Middle East and North Africa (12 countries), five states in Asia and the Pacific and six in Sub-Saharan Africa, along with two in the Americas.
The UNHCR report notes that there is a growing ‘willingness and commitment’ by states to take action to achieve gender equality in nationality laws.
The problem often arises when a newly independent state takes over discriminatory elements of a country’s nationality laws and the discrimination continues until the state reviews its inherited legislation.
That has been the situation in Senegal, Madagascar, Sierra Leone, Egypt and Algeria among others.
A hopeful factor, pointed out in the report, is that gender equality ‘can often be achieved through relatively simple changes’ to the law.
One example is Kenya, which made changes to conferral of nationality as part of the country’s 2010 constitution. Under the previous constitution of 1969, Kenyan mothers and fathers could confer Kenyan nationality equally on their children born in the country. But, as with the Bahamas, only fathers could confer Kenyan nationality on children born abroad.
‘The 2010 constitution of Kenya addressed this, using the following formulation: A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.’
Other major developments in the push for changing the law on nationality conferral was the Abidjan Declaration by ECOWAS member states on the eradication of statelessness, followed up by the Banjul Plan of Action of 2017. This led ECOWAS members states to commit that women and men would have equal rights to confer nationality on their children.
Another key moment along the road to gender equality on this issue was the 2018 review by a specialised committee of the African Union of a draft protocol to the African Charter on Human and Peoples’ Rights on the right to a nationality and the eradication of statelessness in Africa. This would enshrine equal nationality rights for women and men to ‘acquire, change or retain their nationality’ and also dealt with the nationality of their children.
The UNHCR’s #IBelong campaign to end statelessness, launched in 2014, has also prompted a number of major developments.
First off the mark were Madagascar and Sierra Leone. They became the first countries to reform their nationality laws after the #IBelong campaign started, and now both allow mothers to confer nationality to their children equally with fathers.
In 2019, Liberia and Eswatini both pledged to resolve issues of gender discrimination in their respective nationality laws before the end of the #IBelong campaign in 2024. Both countries are receiving help from UNHCR to make the changes needed so these pledges become a reality.
In December 2021, Burundi also made a pledge to eradicate statelessness, thus creating an opportunity for sex discrimination in its nationality and related laws to be reformed.
Another interesting list included in the UNHCR report names the African states that have constitutional guarantees of equality between men and women, but whose nationality laws do not reflect gender equality. Burundi, Liberia, Sudan and Togo all contain provisions on gender equality in their recent constitutions, but their nationality laws still don’t reflect this.
The report notes that ‘In principle, constitutionality provisions prevail over the nationality law …. However, because nationality laws tend to be more specific and practice-oriented, administrative authorities may be more likely to apply the older provisions of these laws rather than look to constitutional guarantees of gender equality.’