The 1961 Statelessness Convention: 60 years of promoting and protecting the right to a nationality - Addendum on the Southern Africa region

Gaps in nationality legislations are permanent sources of statelessness. To end statelessness, it is essential to close these gaps, which is precisely the aim of the 1961 Convention.

There are multiple gaps in the nationality legislations in Southern Africa: for instance, laws do not grant nationality to stateless children born or found in their territory, a cornerstone principle of the 1961 Convention and the African charter for the Welfare and the Rights of the Child. There are a few exceptions: stateless children born in Mozambique, Namibia and South Africa can be granted nationality, should they have birth registration documentation. Those who are found abandoned are not granted nationality, however.

Children born to nationals can also end up stateless, as it is the case in Malawi where the child of two nationals cannot acquire the Malawian nationality if both the child and his/her parents were born abroad. In Eswatini, the child of a female national born in the country cannot acquire the Eswatini nationality in all circumstances.

It is also possible for duly recognised citizens to lose their nationality and become stateless. In several countries, acquired nationality can be withdrawn when a national has been residing abroad for a prolonged period of time – only two years in the case of Namibia. In a few other countries, acquired nationality can be stripped off based on the vague notion of disloyalty to the State, or for common crimes punishable by one year or more of imprisonment.

“Individuals falling into these gaps will further fall into legal limbo. Nationality is a gateway to other fundamental rights. Without a nationality, they will lack the right to have rights” explains Valentin Tapsoba, UNHCR Director for the Southern Africa region.

Although, these examples indicate that risks of statelessness are real in the region, there are no data on the number of stateless persons as States do not publish statistics. The World Bank reports that over 130 million people lack identity and nationality documents, including over 15 million people in South Africa alone. Although this number does not amount to an estimate of the stateless population, it is a telling indicator.

“Having a nationality is the minimum norm for integration” warns Angèle Dikongue-Atangana, UNHCR Deputy Director for Southern Africa. “Without a nationality, one does not belong anywhere and is unable to access rights and services. Without a nationality, an individual is doomed to marginalisation and exclusion. Holding a nationality is a matter of human dignity”.

Human dignity needs guarantees, and when it comes to nationality, they can be found in the 1961 Convention on the Eradication of Statelessness. This cornerstone human rights instrument sets the necessary safeguards to prevent statelessness.

In the region, only 4 countries have acceded to the Convention: Angola, Eswatini, Lesotho, and Mozambique. Madagascar, South Africa, and Zambia committed in 2011 to acceding, while Botswana, the Democratic Republic of the Congo (DRC,) the Republic of Congo (RoC), Comoros, Namibia and Malawi have made similar pledges in 2019. RoC is about to complete its accession procedures and will become a party to the convention in the coming weeks, while Malawi, Namibia, Zambia, and the DRC are have taken steps towards accession.

“Statelessness can mean a life without education, without medical care, legal employment, or the ability to move freely”.

UNHCR is also working closely with the Southern African Development Community (SADC) to further integrate statelessness issues on their agenda as well as with the Pan African Parliament.

Acceding to the Convention is a crucial step, and implementation is equally important. Eswatini and Lesotho, already parties to the Convention, have committed to reviewing their nationality laws.

Comoros, Madagascar, Malawi, Namibia, Zimbabwe, ROC and the DRC have also committed to reforming their legislation. Madagascar amended its nationality law in 2017 by removing discrimination against women, who, until then, could not transfer their nationality to their children on the same footing as men. But other gaps remain, including other types of discrimination. The Parliament of Madagascar is now reviewing a bill that comprehensively includes all necessary safeguards against statelessness.

“We are commemorating the 60th anniversary of the 1961 Convention in a context where there are thousands who are still without a nationality in Southern Africa” says Tapsoba. “Accession and implementation of this instrument remains an urgent priority for States in the region to put an end to the stateless population’s ordeal, and provide them with a sense of justice, dignity and belonging”.