How do the contours of statelessness vary from continent to continent? To what extent is the nature of statelessness directly tied to the nature of the state? Europe, after all, invented the “nation-state”, the idea that each “nation” should have a state to match; and some European countries still resist the grant of citizenship to those who are not members of that “nation”. How far can this experience relate to that of the African continent, whose states are struggling with the concept of nationhood itself in the aftermath of colonial conquest and random boundary-making by some of those same European powers? What impact does the difference in these histories have on nationality and statelessness?
The leaders of the African states that gained independence from the European colonial powers in the 1960s and 70s had to grapple with a “nation-building” agenda in new political units where it was not unusual for the residents of these territories to speak several hundred different languages, practice half a dozen different religions, host many hundreds of thousands of people following a nomadic lifestyle, or include large settler populations imported (often forcibly) from other parts of Africa or other parts of the world during the colonial period. Registration of births and documentation of the population before independence had been rudimentary and often discriminatory on grounds of race, religion or ethnicity.
The legal provisions governing nationality on succession of states were themselves often unclear: the British government provided a theoretically watertight framework that ensured nobody would be left stateless; but in the French territories nationality was largely left up to the new governments, and sometimes several years elapsed before a new nationality code was adopted; while the Belgians left the Congo with a legal confusion over the status of the Banyarwanda that still haunts the country today. On the other hand, the jus soli citizenship law provided by the British for their former colonies proved to be politically unsustainable, and almost all Commonwealth states took measures to remove the right to citizenship based purely on birth in the territory—as indeed the British did in 1981. The former French civil law framework of double jus soli, and in some countries also the right to acquire citizenship based on birth and residence until majority, proved generally more stable.
Since independence, there have been two negative and two positive trends in relation to prevention of statelessness. Firstly the negative: the trend to reduce rights based on birth in the territory—especially in the Commonwealth countries, but also in Côte d’Ivoire, Algeria and Niger—has left some countries providing for nationality at birth exclusively by descent, sometimes not even allowing for abandoned infants. In addition, a number of countries adopted nationality laws that explicitly discriminate on the basis of race, ethnicity or religion—around ten have such provisions today. Secondly the positive: as in the rest of the world, Africa has seen a marked change in the past two decades towards increased gender equality and increased tolerance of dual nationality. Children of national mothers and foreign fathers are now able to obtain citizenship on equal terms under the law in 42 of Africa’s 54 states; and dual nationality is allowed in at least some circumstances in all but ten. Although rules on dual nationality in principle should not affect statelessness, in practice it has often been the case that a person is deemed not to be eligible for citizenship in the country of residence because of a theoretical right to hold another elsewhere.
Who is left at risk of statelessness by this history and these laws?
Firstly, there are migrants no longer living in their “original” communities. Among these, perhaps the most important group are those who migrated before independence, and their descendants. In those countries with very limited rights based on birth in the territory, people who moved when borders within the same empire were open find themselves unwelcome and unrecognised as nationals where they now live, even though they have little connection to their country “of origin”. In the most egregious cases, such as Côte d’Ivoire and the Democratic Republic of Congo, a failure to ensure access to nationality for such populations has been central to later conflict; but across Africa there are people who can obtain recognition of nationality neither in the country where their last name “belongs” nor in the country where in fact they live and to which they have much closer connections. The same is true of those who could have a claim to the nationalities of the more recently created states of Eritrea and South Sudan, but who remained resident in Ethiopia or Sudan when the new states seceded. More recent migrants and their children are also at risk of statelessness, including refugees who have lost contact with their states of origin. Where the cessation clauses have been invoked under the 1951 Refugee Convention (in Africa, in Angola, Liberia, Rwanda, and Sierra Leone), refugee protection is no longer provided by UNHCR or national authorities, yet naturalisation is often not accessible, and there may be no concrete proof of connection to the country “of origin” enabling (re)acquisition of nationality there.
Then there are the cross-border populations, where the colonial powers drew lines on maps that completely disregarded commonalities of language, culture, religion, lifestyle—or even geography (since the lines were largely drawn in 1885 in Berlin, many thousands of kilometres from the geography in question). Often, both states to which such populations could belong regard them with suspicion, leaving many unrecognised as citizens in either. In the case of the Bakassi peninsula between Nigeria and Cameroon, and other territories transferred by the International Court of Justice, the border itself has moved, leaving the status of those who live in the zone affected in doubt as to where their nationality now is. Amongst these border groups we must include nomadic pastoralists, a population of several millions in Africa, who face the same suspicion around their loyalties as settled populations have always held of those who lack a fixed home.
Finally, there are children who cannot obtain recognition of the nationality of (one of) their parents, whether because of discrimination on the basis of gender or birth out of wedlock, or because their parents are not known, or because their parents are themselves not documented, or because their births were not registered in time, or because they are separated from their parents by war or as child workers trafficked to another country. These children—who of course become adults—are not an identifiable “community” but they are scattered throughout Africa and found at the margins of every society.
European states have not faced the same challenges as Africa over the past five decades. Nonetheless, this taxonomy will be entirely familiar to readers of the ENS blog from stories about statelessness in Macedonia, or the children of Syrian refugees born in exile, or Roma children born in Italy, or the situation of those without papers in Romania, or the status of Russian-speakers in the Baltic states, or many other cases.
What is perhaps different in Africa is the scale of the problem and the difficulty of measuring it. It is impossible to say how many people are stateless in Africa: a very large number of people—millions—live in an intermediate zone of undetermined nationality, neither clearly nationals of any particular state nor clearly stateless, but certainly at risk of statelessness. Where many are undocumented the difference between those who are undocumented and those who are stateless may not be apparent, until all efforts to obtain documentation have failed; and many more people are undocumented in Africa than in Europe.
Paradoxically, perhaps, the scale of the problem creates some opportunities for resolving it. There is widespread recognition by politicians, government officials, and development agencies that lack of recognised nationality for many Africans is a problem that needs to be fixed. The continental institutions have begun to respond, with support from civil society activists and UNHCR. In 2014, the African Committee of Experts, the treaty-monitoring body for the African Charter on the Rights and Welfare of the Child, adopted a General Comment on the Right to a Name, Birth Registration and Nationality, with very progressive recommendations; and this year the African Commission on Human and Peoples’ Rights adopted a draft Protocol to the African Charter on Human and Peoples Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa (of which the text will be available on the ACHPR website once revisions made by the African Union Commission on International Law have been integrated). The idea of a protocol has already been endorsed by the West Africa region. If it is adopted in its current form by the AU Assembly of Heads of State and Government it will be a landmark document at the global level: the particular challenges around statelessness created by Africa’s history may also permit the continent to set a lead for other regions.
Bronwen Manby recently successfully defended her PhD thesis on comparative African nationality law at Maastricht University. The full text of the thesis, Citizenship and Statelessness in Africa: The law and politics of belonging, is available on the university website here.