In the aftermath of World War II, hundreds of thousands of individuals found themselves stateless in a shattered Europe. During 1949, the newly established United Nations reported on their plight and noted that the international community lacked the resources to assist – “the stateless person is an anomaly (…), he is in an inferior position which reduces his social values and destroys his own confidence” – and concluded that stateless persons are compelled to “live outside the law and are left at the mercy of the authorities[1]”.
As a problem, statelessness was not limited to Europe, however. The international community soon realised it was a global phenomenon and, in 1974, the UN General Assembly mandated the UNHCR to address statelessness.
In 2014, 60 years after the first UN report on statelessness, Antonio Guterres, then High Commissioner for Refugees, declared that statelessness was one of the most neglected areas of the global human rights agenda, a forgotten human rights crisis. In order to give more visibility to this issue and find concrete solutions, he launched a 10-year campaign, the #IBelong campaign, with the ambitious objective of eradicating statelessness in a decade.
Exclusion
Stateless persons are foreigners everywhere, and nationals nowhere. No state considers them as their nationals. In practice, they are denied a wide range of fundamental human rights: they are often unable to obtain identity documents; they may be detained for reasons linked to their statelessness; and often they are denied access to education and health services or blocked from legal work. This led the philosopher Hannah Arendt, formerly stateless herself, to affirm that “nationality is the right to have rights[2].” Because they lack nationality, stateless persons are disenfranchised, caught in a spiral of exclusion and marginalisation.
UNHCR reports that 4.2 million people are stateless across the world. However, this figure is based on data currently reported by 94 countries, or less than half of all countries, globally. In all likelihood, therefore, the actual number of stateless people is significantly higher. There is no statistic available for Southern Africa, and most countries in the region have yet to report data to UNHCR for inclusion in global reporting. However, the World Bank estimates that over 130 million[3] people in Southern Africa are without any identity and nationality documentation, a telling indicator of the extent to which statelessness is a topical phenomenon in the region.
This November, UNHCR marks the seventh year of the ambitious #IBelong campaign. It is a time to reflect on the achievement in the region and assess whether the Southern African region is close to eradicating this scourge.
Legal limbo
In order to end statelessness, states need to “trace the source of statelessness and find means of drying them up”[4]. States are uniquely responsible for conferring nationality. Each state lays down criteria in their nationality processes for the conferral or withdrawal of nationality. Statelessness takes root in the flaws in this process. Where nationality laws include discrimination or lack proper safeguards, cases of statelessness occur. But drying up the source of statelessness by removing these flaws is not sufficient in itself to eliminate statelessness. These measures will prevent the occurrence of statelessness, but will not resolve the situation of millions who are already stateless or at risk. For this to happen, states must also provide a remedy for those who fell into the cracks of nationality laws and are living in a state of legal limbo today. They must revise their rules to grant or restore nationality to existing stateless persons.
Administrative processes through which nationality laws are put into practice should equally be reviewed. In many contexts in Southern Africa, stateless people must first prove their identity in order to claim a nationality. In most cases they would require a birth certificate to do so. Yet in Southern Africa, one child in two is not registered at birth. For these children, the lack of a birth certificate can be a severe obstacle to proving their right to nationality.
At least three states in the region, Eswatini, Madagascar and Seychelles, include discriminatory provisions on the basis of gender in their nationality laws. In some other countries, the law is neutral but discrimination affects how it is applied. In Zambia for instance, only about 10 % of the population is registered as birth. The system relies on traditional chiefs to assist with late birth registration. They have discretion to issue an affidavit confirming that an individual has been born in their area of jurisdiction. However, traditional chiefs abide by their customs and where tradition gives precedence to men over women, a child born to a Zambian mother and a foreign father may be refused the affidavit that would prove their right to citizenship.
Discrimination
Ethnicity can also be the basis for discrimination. For example, the Democratic Republic of the Congo’s nationality law defines nationality in terms of “ethnic groups of which the individuals and territory formed what became Congo at independence”, a definition that leaves some with uncertain status. In Madagascar, discrimination is to be found in the transitional provisions of the nationality law adopted at independence. Only those who “originate” from Madagascar are eligible for nationality. In practice, however, individuals may be denied citizenship on the basis of their physical features and their names.
Recurrent gaps in nationality laws in Southern Africa include lack of protection for children found abandoned in the territory of a State. Most legislation in the region, including that of South Africa, does not grant those children a right to nationality, thus exposing them to a life of sorrow and exclusion. Mpho, 33, is one amongst many others in the region who suffers from this lack of protection. She has lived in South Africa her all life, and speaks local languages. When she was found abandoned as a young child, however, the identity of her parents or her place of birth were unknown. She was thus left stateless, and sadly, her three children have inherited her status.
Considering these many flaws or gaps in nationality laws has there been progress in Southern Africa, that would put an end to statelessness?
Pledges
In order to develop policy, states need to have a clear understanding of the issues at stake, including technical knowledge of statelessness. They also need to know the number of stateless persons in their territory and the root causes of statelessness. In this regard, there has been a steady improvement of governments’ awareness on statelessness over the last seven years.
All governments in the region have appointed focal points to work on the issue of statelessness, with support from UNHCR for their capacity development. This new level of engagement has resulted in stronger political will to tackle statelessness, clearly expressed through specific commitments by states to address the problem. Compare this with the situation in 2011, just 10 years ago, when only three countries in the region submitted pledges in the first UN pledging conference on statelessness. Today there has been a real breakthrough, a quantum leap: in 2019, all states in the region with the exception of Seychelles and Mauritius participated in a second pledging event on statelessness, and between them submitted nearly 60 pledges towards the eradication of statelessness.
These pledges are significant. They include commitments to reform nationality legislation, to accede to the statelessness conventions, to expand access to birth registration and strengthen data collection. To date 80% of the pledges are slowly moving towards implementation.
Barriers
One area that remains critical and not properly addressed in Southern Africa and in the rest of the world is the collection of data on statelessness. Most states in the region have conducted studies to trace the sources of statelessness on their territories. But none have carried out surveys to identify and count stateless persons. Governments need data for policy purpose and also to track progress. Without such data, states face significant barriers to translate their political will into concrete policy.
The Republic of Congo, however, stands out as an exception and an example of best practices in this respect. That country has adopted an action plan to end statelessness, will soon deposit instruments of accession to the statelessness conventions, has identified every child and adult without civil registration and is implementing an ambitious programme to ensure that they are properly registered and provided with birth certificates.
Every day, UNHCR staff and our partners encounter stateless persons who are desperately waiting for solutions. Yet officially they don’t exist in the records of the state where they live and are not reflected in any survey or statistics. Most states remain ignorant of who they are and how many there are. Equipped with the necessary data, states may decide to follow the example of the Republic of Congo to pursue the solutions which are within reach. Only states have the power and the tools to identify stateless people and resolve their situations of legal limbo and desperation. The ball is in their court.
With only three years remaining for the #IBelong Campaign, but with welcome signals of growing political will across the region, UNHCR urges all states to seize the opportunities which are within reach, to end and prevent statelessness.
- Emmanuelle Mitte, UNHCR expert on statelessness
[1] A Study on Statelessness, Department of Social Affairs, United Nations, 1949
[2] Origins of Totalitarianism, Hannah Arendt
[3] Identification for Development (ID4D) Global Dataset | Development Data Hub (worldbank.org)
[4] A Study on Statelessness, Department of Social Affairs, United Nations, 1949