Strengthening civil registration legislation for the prevention of statelessness

Universal birth registration is critical for preventing statelessness. A stateless person is defined as someone who is not considered a citizen by any State under the operation of its law and can have dire personal consequences. Birth certificates are essential for establishing citizenship as they provide proof of the foundational facts needed to confirm or acquire citizenship under a state’s constitution or citizenship legislation. Where national law confers nationality on the grounds of descent from citizen parents or grandparents (jus sanguinis), birth certificates are used as evidence to document the parental relationships. Where citizenship is conferred on the grounds of territory (jus soli), birth certificates serve as proof of the country of birth.[1]

In Southern Africa, dysfunctional and, in some cases, exclusionary civil registration systems are a primary cause of statelessness.⁴   Often, it is the poorest and most marginalised children who are not registered, blocking their access to resources and opportunities. According to a recent statistical report by UNICEF, 12 million children under five are not registered in Southern Africa, and 19 million do not have birth certificates. [2] UNICEF further predicts that the total number of unregistered children will rise if governments do not accelerate their progress.

Ensuring specific legal safeguards in the civil registration laws in the region is therefore vital to prevent statelessness. Civil Registration law should provide clear pathways for the registration of children despite life circumstances, although it does not always guarantee the acquisition of citizenship for all children.[3] A recent report on birth registration and statelessness in SADC, commissioned by UNHCR, has made an attempt to define groups of children particularly at risk of statelessness, and suggests 13 legal safeguards to be included in civil registration law to lower the risk of statelessness of children born or living under challenging life circumstances. The safeguards and groupings are based on studying the civil registration systems and laws of 16 SADC member states.[4] This article presents some key findings of this report.

Status of birth registration and recurrent challenges

Progress in birth registration programming has been recorded in many countries in Southern Africa. Civil Registration and Vital Statistics (CRVS) enhancement initiatives are ongoing in most SADC member states. Some parts of Southern Africa have demonstrated exemplary practices and can show remarkable results. However, despite many good efforts and rising birth registration rates in Southern Africa, some states still display concerning practices and systematically deny some children access to birth registration, while many other countries seemingly still fail to register the most vulnerable and marginalised groups, creating significant risks of statelessness amongst these population groups. [5]

Encouragingly several countries in the SADC have recently amended or passed new legislation on civil registration. Despite this positive trend, the legal frameworks are generally inadequate and are in need of more robust safeguards against statelessness. For example, few laws deal adequately with registering children born to undocumented migrants or nationals. It is not uncommon to require parents to provide state-issued identification documents, such as passports and IDs, as a pre-requisite to the birth registration of their children - leaving children of undocumented parents unregistered or unable to qualify for citizenship. Also, most legal frameworks do not provide sufficient legal guidance on late registration, often imposing fees but failing to provide any additional procedures to check the accuracy of the delayed information.

In some cases, non-registration is linked to challenges and misconceptions about the two legal concepts of ‘birth registration’ and ‘acquisition of citizenship by birth’. Commonly, birth registration is a permanent recording of a child’s identity and parentage; possessing a birth certificate issued by a country does not in itself confer nationality. Nationality is typically acquired through the operation of nationality laws. In Southern Africa, countries have outlined the criteria for the acquisition of citizenship in their Constitutions and/or in their Citizenship Acts.

In some countries, however, birth certificates serve as proof of nationality based on either law or practice. For example, Botswana’s birth and death registration law explicitly states that a birth certificate is proof of citizenship.[6] In other countries, birth certificates are treated as proof of citizenship in practice, even where the law does not provide for this. For example, Namibia and Zimbabwe issue non-citizen birth certificates in practice, even though this is not addressed in their civil registration laws. In South Africa, children who do not qualify for citizenship by birth are registered in local manual registers and, unlike children born to citizens, are not allocated a unique identification number (UIN) at birth.^[7]  The determination of whether a child is a citizen by birth or not is done by administrative officials in South Africa. In Zimbabwe, non-citizen parents are more accurately informed on the birth registration form that their child is not automatically a citizen of Zimbabwe by virtue of birth registration.

Part of the problem with ‘birth registration’ and ‘acquisition of citizenship by birth’ is practical. Shortly after birth, public and private agencies need to make decisions based on a child’s citizenship, such as the child’s right to social services, health care, and passports (linked to citizenship or residency status in most countries). Birth registration is the only legal record of a child’s birth facts. If birth certificates cannot be used to support a claim for citizenship by birth, then what is the alternative? This is particularly problematic since identity documents are not typically issued to children until sometime in their teens. Separate processes to consider citizenship and provide some form of proof of citizenship separate from birth certificates would be expensive and administratively burdensome, particularly in countries which are still struggling to increase birth registration rates in the first place. Providing separate proof would also be considered an unnecessary burden by many countries since most children born in any country are born to citizen parents, leaving little doubt about their citizenship status – as their birth certificate will indicate their parents' nationality or place of birth. [8]

Indicating the nationality of a child on a birth certificate, particularly of non-citizens, also raises concerns. According to UNHCR, the child's nationality should not be recorded on a birth certificate, particularly for migrants and refugees, [9] given that local civil registrars are typically not sufficiently trained or lack the legal authority to determine the nationality of the child born to migrants and refugees based on the documents provided by the parents. For example, some countries require children born outside the territory to apply for citizenship by descent (not an automatic process), while some other citizenship law requires the child to apply through consular services. ^[10] Therefore, according to UNHCR, nationality should be left blank on the birth record and birth certificate if it is unclear, as nationality will only be determined later.^[11]

The legal and practical challenges regarding birth registration and acquisition of citizenship by birth have received very little attention. Further research and guidelines are needed to ensure that all children are provided with a clear path to birth registration and citizenship. Most countries should also seek to update their legislation, and draft stronger and more inclusive regulations, and standard operational procedures to minimise statelessness related to inadequate civil registration laws.

This article is largely based on a yet-to-be-published UNHCR-commissioned report on birth registration and statelessness in the member states of SADC, drafted by Anette Bayer Forsingdal, Dianne Hubbard and Adriana Corluka. The report focuses on the nexus between birth registration, citizenship, and statelessness in the 16 member states of the Southern Africa Development Community (SADC)