THE AFRICAN UNION APPROACH TO THE RIGHT TO NATIONALITY IN AFRICA

THE AFRICAN UNION APPROACH TO THE RIGHT TO NATIONALITY IN AFRICA «Statelessness Impact on Africa s Development and the Need for its Eradication» Department of Political Affairs African Union Commission

INTRODUCTION 1. In virtually all African States the legal recognition of nationality or citizenship constitutes one of the most essential links that an individual can have with the State from which he/she claims to belong to. However, this legal link of belonging to a nation, which is enjoyed by most of us, is not accessible to everyone in the African continent. 2. In fact, in all too many African countries, the laws and practices governing nationality have the effect of leaving hundreds of thousands of persons without a nationality, thus reducing them, by a sole fact of law, to the condition of statelessness. 3. The nationality laws of some African countries explicitly restrict the right to nationality on racial or ethnic basis, and in other countries, discrimination on the grounds of race or ethnic origin in the recognition of nationality is still widely practiced. African stateless persons constitute one of the Continent s most vulnerable groups of people, and are therefore exposed to many forms of discrimination and human rights violations. 4. The cases of statelessness in the African continent stem from many factors, which could be viewed from the State as well as continental levels. At State level, the following factors could be mentioned: - Weakness, inability or shortcomings of a large number of African States in the organization and maintenance of effective civil status registers, particularly in provinces that are far from the capitals; - Weakness, inability or shortcomings in responding appropriately to migration issues in Africa, mainly by putting in place real naturalization procedures, particularly for refugees; - Existence in some States of gender-based discrimination in the area of nationality by descent (discrimination particularly against women); - Explicit recourse to racial or ethnic criteria in the laws on nationality in some African countries (Liberia, Sierra Leone and Democratic Republic of Congo); - Frequent lack of protection within the framework of safeguard clauses on individual freedoms, particularly when the government wants to revoke an individual s nationality; - In addition, there are problems of nationality arising from colonial history and the territorial division resulting from the Berlin Conference, as well as problems due to state succession. 5. The factors leading to cases of statelessness cannot be interpreted merely from the state perspective. Africa as a continent, represented by the African Union composed of its organs and Regional Economic Communities (RECs), also has the responsibility to assume and play a role in reducing cases of statelessness in the African continent. Indeed, at continental level, we can flag up the fact that

to date, there is no regional African convention governing issues of nationality and statelessness compared to our European or Asian friends who have continental legal instruments on the issue, such as the «European Convention on Nationality», the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession, or the Human Rights Declaration of the Association of Southeast Asian Nations (ASEAN). 6. On the Continent, the existing African treaties are restrictive in terms of right to nationality. In fact, no mention is made of the right to nationality in the African Charter on Human and Peoples Rights (ACHPR). The African Charter on the Rights and Welfare of the Child, which was ratified by about forty African States, provides for the right to a name at birth and the right to acquire a nationality, but not the right to a nationality of origin. The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa goes against international norms by not mentioning the right of women to transmit their nationality to their spouses, and by providing for the primacy of national laws over the provisions of treaties on non-discrimination in granting nationality to children. 7. This state of affairs concerning the situation of statelessness in African States and the African continent can be viewed in two ways from the African Union stand point. On the one hand, it calls for African awareness in order to define an African approach to the right to nationality and combatting statelessness, based on an appropriate strategy for the protection of fundamental human rights and combatting the many harmful effects of the absence of the right to nationality in the Continent, taking into consideration the specifically African aspects of the issue of the right to nationality and combatting statelessness in Africa. On the other hand, it calls for awareness for the effective implementation of continental and regional initiatives on the right to nationality and combatting statelessness, with a view to eliminating the problem of statelessness in Africa. Such initiatives can only be effective if they build on recently established African Union humanitarian frameworks and policies as well as the vision for Agenda 2063. THE AFRICAN APPROACH TO THE NATIONALITY LAW AND THE ERADICATION OF STATELESSNESS 8. The outline to the definition of the African approach to the right to nationality and combatting statelessness should be correlated with efforts made by African Union organs such as the African Commission on Human and Peoples Rights and the African Committee of Experts on the Rights and Welfare of the Child, which have in turns addressed the issue of the right to nationality in Africa. The adoption by the African Commission on Human and Peoples Rights of Resolution 234 on the Right to Nationality and various reflections on the right to nationality which followed, were the triggers for the definition of the African approach to the right to nationality. This approach is defined in the study on nationality carried out under the auspices of the African Union Commission. However, well before that, the African Committee of Experts on the Rights and Welfare of the Child had laid the foundations for the approach based on safeguarding fundamental rights.

a. An Approach Based on Safeguarding Fundamental Rights and Combatting Discrimination 9. At its 20th Ordinary Session held in Addis Ababa in November 2012, the African Committee of Experts on the Rights and Welfare of the Child organized a general debate resulting in the elaboration for State Parties of a general comment which spelt out, taking African realities into consideration, the contents of Article 6 of the Charter on Rights and Welfare of the Child. In fact, under this Article, the right to nationality is perceived as a «fundamental human right», including in particular, the «right to acquire nationality». 10. The African Committee of Experts on the Rights and Welfare of the Child goes further to observe that as a fundamental human right, the right to nationality is not really protected in Africa for reasons related to arbitrary denial or deprivation of nationality on racial, ethnic, linguistic or religious grounds ( ), but also the failure to carry out systematic birth registration in many African States. The absence of a genuine right to nationality therefore explains the persistence of statelessness in the African continent. 11. Equally concerned by the cases of absence or denial of enjoyment of the right to nationality in the Continent, the African Commission on Human and Peoples Rights adopted, at its 54th Ordinary Session in 2013, Resolution 234 on the Right to Nationality, which called for a study on the issue. In the study it is observed that there is no continental treaty which recognizes the right to nationality as an individual s basic right. 12. The absence of an appropriate legal framework is an obstacle to the effective protection of persons who are victims in exercising their right to nationality, and is a flagrant denial of their fundamental rights. Addressing possible solutions, the study recommends that at continental level, a protocol to the African Charter on Human and Peoples Rights should be drafted on the right to nationality in Africa. 13. The preference for a protocol rather than a convention in the establishment of an African legal framework on the right to nationality is justified by the need for speed and effectiveness. The African Charter on Human and Peoples Rights which entered into force in 1986, is an African legal instrument that has already acquired a sound legal base as an African reference instrument in most African States. 14. The drafting of an additional protocol to the Charter would appear to be more rapid and effective than drafting an African convention on the subject. The other justification, which is more practical, is that of filling the legal vacuum in the Charter concerning the right to nationality. b. An Approach Taking Into Consideration Specific Aspects of the Problem of Nationality and Statelessness in Africa 15. While attempting to safeguard everyone s fundamental right to nationality, the African approach to the right to nationality is intended to be proactive by taking into account the specific African aspects relating to the issue of statelessness. Essentially, this involves not only taking into account specific African issues

arising from a history marked by colonization and migration, but also combatting the harmful effects the situation of denial of nationality has on the Continent in terms of peacekeeping and security. Indeed, the situation of statelessness in Africa is often the source of conflicts in the Continent and many inter-community and inter-ethnic tensions. For instance, the recent armed conflict in the Central African Republic is instructive. 16. Some African experts had expressed the view that the protocol to be drafted should contain the term «Protocol governing specific aspects of the problem of nationality and statelessness in Africa» following the example of its predecessor, the OAU Convention of 1969, now the AU Convention Governing Specific Aspects of Refugee Problems in Africa. The debate is currently at the level of experts. c. An Approach Encouraging Regional Initiatives on the Right to Nationality and Combatting Statelessness 17. Regional initiatives can be analysed from the perspective of African Union efforts as well as that of the Regional Economic Communities and the African civil society. INITIATIVES OF THE REGIONAL ECONOMIC COMMUNITIES 18. Among the eight Regional Economic Communities (RECs) which form the «pillars» of the African Union, the Economic Community of West African States (ECOWAS) is the most advanced regional organization in the area of combatting statelessness, and has significant potential advantages for resolving the issue. It is the REC which has made the most progress in the area of regional integration and free movement, residence, work, and the right of establishment. Furthermore, it has a protocol that deals with the notion of ECOWAS citizenship. 19. One of the recent ECOWAS initiatives is the Declaration of Ministers of ECOWAS Member States on Eradication of Statelessness adopted at a conference held from 23 to 25 February 2015, in Abidjan, Côte d Ivoire. At the end of the Conference, ECOWAS Member States undertook «to prevent and reduce statelessness, mainly by reforming constitutional, legislative and institutional regimes related to nationality in order to include appropriate safeguards against statelessness, in particular to ensure that every child acquires a nationality at birth and that all foundlings are considered nationals of the State in which they are found». 20. ECOWAS also seized the opportunity to «call upon the African Union to prepare and adopt a protocol to the African Charter on Human and Peoples Rights on the right to nationality». 21. The choice of Côte d Ivoire to host the regional meeting was not insignificant. President Alassane Ouattara of Côte d Ivoire is the champion at continental level of the issue of the right to nationality and combatting statelessness in Africa.

EFFORTS OF THE AFRICAN UNION: TOWARDS A PROTOCOL ON THE SPECIFIC ASPECT OF THE RIGHT TO NATIONALITY AND THE ERADICATION OF STATELESSNESS IN AFRICA 22. The initiatives of the African Union in the area of the right to nationality and combatting statelessness in Africa are ongoing. The African Union submitted a request to Policy Organs during the last Summit in Kigali in July 2016 to be commissioned to draft a Protocol to the African Charter on Human and Peoples Rights on the Specific Aspects of the Right to Nationality and the Eradication of Statelessness in Africa. 23. The Executive Council during the Kigali Summit requested the African Union Commission to take the required steps to start the procedure for the development of the said Protocol 1. The Commission in collaboration with the African Commission on Human and People s Rights will be submitting the document soonest to the Specialized Technical Committee (STC) on Migration, Refugees and Displaced Persons and the STC on Justice and Legal Affairs for validation. The final Document will then be submitted to the Summit for adoption. CONCLUSION 24. By opting to have a protocol to the African Charter on Human and Peoples Rights on the Specific Aspects of the Right to Nationality and the Eradication of Statelessness in Africa, the African Union is thereby pursuing the development of a legal platform to safeguard the fundamental rights of thousands, if not millions, of Africans on this Continent, and also respond to the denial of the right to nationality, which is one of the root causes of many crises in Africa. 1 Ex.Cl/Dec.922(XXIX)