26 January 2011

The undersigned civil society organisations, who are supporters of the Citizenship Rights in

Africa Initiative, a campaign for the right to nationality in Africa, present our complements to the members of the AU Peace and Security Council (PSC). We make this submission to request the PSC to take all necessary steps to ensure that the right to a nationality is respected for all following the anticipated secession of Southern Sudan to become a new state on 9 July 2011, and, in case of need, to take appropriate steps to ensure that this question does not form the basis for a serious conflict between the two states.

We welcome statements by President Bashir indicating his commitment to protect southerners in the North from violence, and his promise to allow them to retain residence and employmentin the private sector, and to keep students in education. Similarly, we welcome statements on behalf of the Government of Southern Sudan indicating that the rights of northerners in the South will be protected, while those pastoralists whose home base is in the North will preserve their traditional rights to graze and move cattle through the South.

 Nonetheless, the allocation of nationality rights between the two future states remains of critical importance for the human rights of those concerned, and the current failure of the negotiating parties to agree a framework on nationality law is therefore very worrying. The African Commission on Human and Peoples’ Rights has clearly found that the right to a nationality is a key component of the African human rights system. It has ruled that the provision of Article 5 of the African Charter on Human and Peoples’ Rights that states “Every individual shall have the right to the respect of the dignity inherent in a human being and to therecognition of his legal status” includes the right to a nationality and protection against arbitrary deprivation of nationality. In addition, the Commission has held that the due processprotections included in the African Charter apply to everyone, including persons alleged to benon-nationals. Finally, the Commission has ruled in several cases that mass expulsions onthe basis of ethnicity, specifically prohibited by Article 12(5) of the African Charter, “constitutea special violation of human rights.” It is to be hoped that the Commission never needs to hear a case on mass expulsions from either successor state in Sudan: and the Peace and Security Council should be particularly concerned to avoid any such outcome as a result of the referendum on independence.

We understand that the current position of the National Congress Party (NCP)-led governmentof the Republic of Sudan is that all those who were eligible to vote in the referendum (those who are members of “one of the indigenous communities that settled in Southern Sudan on orbefore the 1st of January 1956″) should automatically become nationals of Southern Sudan on the basis of their ethnicity, with no right to opt for the nationality of the Republic of Sudan, even if they have been resident there for many years or have other strong connections, and that dual nationality will not be permitted. The Government of Southern Sudan, meanwhile, has indicated that it will not automatically grant its nationality to all those eligible to vote in the referendum who are resident in the North, but will require a process of individual application for those resident outside the territory of Southern Sudan.

This situation creates a substantial risk that a large stateless population will be created. The grant of nationality in law or practice on the basis of ethnicity creates the likelihood that the right to nationality of those whose status as “indigenous” may be in doubt will not be respected, however long their families may have been resident on the territory concerned.

Among the groups most likely to be affected are those that have members on both sides of the north-south border and people of mixed ethnic parentage. Such discrimination, and the lack of respect for other rights that often follows, brings in turn the serious danger of long-term instability and conflict, as illustrated by the ongoing crises in the Democratic Republic of Congo and Côte d’Ivoire, among other cases.

To avoid these problems, the presumption in international law when a territory secedes is that nationality will be awarded on the primary basis of habitual residence (with secondary criteria such as links to the territory through birth or family ties applied to ensure that no individual is left without a nationality). This is the system most likely to avoid statelessness and to give individuals the nationality of the country where the centre of their interests lie; as a second best option, nationality could be attributed on the basis of place of birth of a person or his or her parents.

 In addition, when a territory secedes, the usual rule is presumed to be that a person who has a connection to both the continuing and new states should be given the right to choose his or her preferred nationality. Perhaps most obviously, the right to opt would help to resolve the situation of those who have mixed parentage or who are members of pastoralist or nomadicgroups.

The parties have indicated that dual nationality will not be accepted between the two countries under any circumstances, although the Interim National Constitution of the Republic of Sudan and the 1994 Nationality Law currently permit dual nationality. The trend within Africa is for more and more countries to allow dual nationality: a majority now do so, and we urge you to accept the same rule for both states in Sudan. At minimum, a better solution than a total ban on dual nationality would be for individuals to choose or be given one or other nationality of the two states at first instance, but thereafter to permit them to naturalise in the other state, according to generally applicable rules. This option would provide comfort on issues of national security, while preserving principles of non-discrimination on the basis of national origin in domestic law (assuming that the Republic of Sudan would wish to preserve the right to dual nationality with other countries).

In principle, the rules governing the attribution of nationality to the pastoralist groups in Sudan should follow rules that are similar to those for the rest of the population; and they should avoid definitions of citizenship that follow ethnic boundaries, since such rules tend to create statelessness for individuals whose ethnicity is not clear cut, as well as to harden identities in a way that can be used as the basis for conflict. Though the technicalities pose some challenges, they are by no means insurmountable: the fundamental difficulties here are political. For example, the definition of habitual residence could accommodate the situation of pastoralist communities whose traditional migration routes cross the north-south border by including a cumulative period of residence over several years rather than requiring in all cases a continuous period of residence in one place.

In any event, there should be due process protections before the nationality of the Republic of Sudan can be withdrawn. In particular, the Republic of Sudan should not withdraw its nationality from those persons who were displaced from Southern Sudan during the civil war and are now resident in the north (or in a third country) without verifying that each individual has in fact acquired Southern Sudanese nationality and without providing an appeal to the courts from an administrative decision.

Finally, we urge you to ensure that an agreement on nationality also guarantees that, in recognition of the shared history between the two states in Sudan, all those who were previously Sudanese nationals shall have the right to reside, to practise their profession, or to establish a business in either successor state, whether or not they have its nationality, and to freedom of movement within either state and between the two successor states.

In summary, we urge you to ensure that, in the interests of the peace and security of the region, both the Republic of Sudan and the future government of South Sudan rapidly adopt nationality laws that, at minimum:

• Do not discriminate on the basis of race, ethnicity, language, religion, gender or any

similar ground prohibited by the African Charter on Human and Peoples’ Rights;

• Provide those who have a connection to both states with a right to opt for their

preferred nationality during a transitional period;

• Provide for dual nationality between north and south; and, at minimum, permit dual

nationality by naturalisation following the option for an initial nationality;

• Provide for due process in the process of withdrawal or grant of nationality; and
• Provide guarantees against statelessness.

We reiterate our commitment to work closely with the PSC for the realisation of these

objectives and assure you of our greatest respect.

Statement endorsed by supporting organisations of the Citizenship Rights in Africa Initiative

1. Action pour les Droits Humains et l’Amitié

2. African Democracy Forum

3. Alfallah Local NGO

4. Arab Coalition for Darfur (ACDarfur)

5. Centre de recherche sur l’environment, la democratie et les droits de l’homme

(CREDDHO)

6. Centre for Minority Rights Development (CEMIRIDE)

7. Consortium for Refugees and Migrants in South Africa (CoRMSA)

8. Coordination des Organisations de la Société civile pour la Défense de

l’Environnement et le Développement du Bassin du fleuve Sénégal (CODESEN)

9. Darfur Reconciliation and Development Organization (DRDO)

10. Ditshwanelo – the Botswana Centre for Human Rights

11. Egyptian Initiative for Personal Rights (EIPR)

12. Hargeisa Women’s Rescue Association (HWRA)

13. Horn Handicap Women Association (HHWA)

14. Institute for Human Rights and Development in Africa (IHRDA)

15. International Refugee Rights Initiative (IRRI)

16. International Commission of Jurists, Africa Regional Programme (ICJ)

17. Kenya Human Rights Commission (KHRC)

18. Open Society Justice Initiative

19. Pan African Movement (PAM)

20. Refugees International

21. Rema Ministries (Burundi)

22. Socio-Economic Rights & Accountability Project (SERAP)

23. Somaliland Transformation Group (SOMTRAG)

24. Sudan Democracy First

25. Union des Ressortissants Rwandais au Sénégal (URRS)

26. West African Refugees and Internally Displaced Persons Network (WARIPNET)

Young Nubian men in Kibera, Nairobi

The year was 1923, and Sebi Rajab had worked for the King’s African Rifles—the British colonial army—since the end of the war. It wasn’t exactly what he had hoped to do with his life, but the British policy of forced conscription meant that people like Sebi had no choice.

Life by the Nuba Mountains—in present-day central Sudan—had certainly not been lush, but it had provided a sense of stability and belonging: it was a cultural and historical home difficult to leave behind. The British had made it very clear, however, that even once he was discharged, Sebi could not return to the mountains. Instead, he was expected to relocate to Kibera—a new Nubian home created by the colonialists on the outskirts of Nairobi, in what is today Kenya.

When the war ended that was where Sebi went, following the promise of fertile land and enough space for a large family. Little did Sebi know that his predicament would develop into a multi-generational struggle against poverty and exclusion.

In 1931, Nubians in Kibera asked to be repatriated to Sudan, a request which was repeated in 1939 and 1950, and consistently refused. So Nubians remain in Kibera—and in villages and towns across Kenya—to this day. Many are now fifth or sixth generation, and have no ties to Sudan—which didn’t even exist as a country when their ancestors were forced to leave. Indeed, according to a recent survey, more than 99 percent of Nubians in Kenya identify themselves as Kenyan. But the government thinks otherwise.

How did this happen?

In 1964, a month after Kenyan independence, Sebi’s daughter, Asha, gave birth to her second child, a boy named Jafar. According to Kenya’s constitution, Asha and her first-born child, Hawa, should have been recognized as citizens, as both were born in Kenya before independence (Former Constitution of Kenya, Art. 87). Since Jafar was born after independence, his right to Kenyan nationality depended entirely on his parents’ status as Kenyan citizens (Former Constitution of Kenya, Art. 89). But Asha and her husband were both Nubians, and the prevailing attitude among the new Kenyan leaders was that Nubians were foreigners. Despite their constitutional rights, in practice Nubians were denied Kenyan citizenship. Nubians, who previously were British Protected Persons, became stateless.

And so the story goes. Jafar and Hawa grew up. They had children who became stateless. And then their grandchildren inherited the same quagmire.

Eventually, the Kenyan government agreed that some Nubians do have a potential claim to nationality. But not on the same conditions as other Kenyans. Local committees were set up in the 1990s to vet Nubians who claimed to be Kenyan. These vetting committees would often ask for a whole range of documents to establish a person’s status, such as grandparents’ birth certificates—which other Kenyans were not required to provide. Many Nubians were unable to meet these arbitrary demands, as the documents were either lost over the years or never received in the first place.

As a result, thousands of Nubians today live in a legal limbo, with no access to the rights that are afforded to Kenyan citizens, such as freedom of movement and diplomatic protection, or the benefits of health care and employment in the public sector.

Even Nubians who have managed to obtain identification find their citizenship questioned when they need to renew documents, and so live in a perpetual state of uncertainty.

A Nubian man who received a national ID card in the 1950s recently lost it. He told us a story about how he had visited the local police station seven times over the last several years but was unable to replace the lost card because suddenly his Kenyan nationality was questioned.

“Lack of an identity card has negatively affected me on numerous occasions,” he said. “I cannot vote, especially in a referendum that was done on November 21, 2005. This happened despite the fact that I have been patriotic enough to vote in all previous general elections.”

Another Nubian man told us this story:

“My cousin is from the Eastleigh neighbourhood of Nairobi. She was trying to get an ID card and she went to the registration office there…But they told her ‘You are a Nubian, you can’t get an ID card here.’ She went back twice, once with her local councillor and once with her MP, but they told her that Nubians could only get ID cards at Kibera…But when she came here, she had to bring three other Nubians to the office with her to testify that they knew her. She did this last year, and even now she still doesn’t have an ID.”

Ironically, Kibera—which comes from the word kibra in the Nubi language and means “land of the forest” —has now become one of Africa’s largest urban slums. It is a place where poverty and disease, crime and social exclusion are overwhelmingly present.

While a majority of Nubians were initially settled in Kibera, today only 50 percent of the community live there. The rest mostly reside in so-called Nubian villages across Kenya. However, these villages are generally also very poor. Unemployment is a particularly big problem, with less than 30 percent of adult Nubians reporting that they are employed. Indeed, 12 percent of households report that they have no income at all. An additional 40 percent of households make less than 60 USD per month, which averages to far less than 1 USD per person per day.

A Nubian resident of Kibera recently put it this way: “We have no roads in Kibera, only one clinic run by the Germans, no police station and no proper drainage system. We have no electricity. We also have water supply for two days in a week. Kibera is the worst part of Nairobi. We are treated as third class citizens because everything is diverted to other places. We have been facing this problem for a long time because we have nobody in government to fight for our cause.”

*Sebastian Köhn is program coordinator for equality and citizenship, Open Society Justice Initiative.

This posting also appeared at http://blog.soros.org/2010/09/the-nubian-predicament/

Drawing on the example of the Mbororo (pastoral Fulbe) in Cameroon, I argue that national citizenship alone does not necessarily enable individuals or groups to realise their political or land rights. Only as regional citizens and accepted members of a community are they entitled to participate in the joint management of the region’s political and natural resources (Pelican 2008). Moreover, certain population groups may feel entitled to more than average citizenship rights, claiming preferential treatment as minorities or, as in the case of the Mbororo, as an ‘indigenous people’ (Pelican 2009; see also Kymlicka 2004). Thus struggles over citizenship in Africa may well go beyond claims for equal rights for nationals.

The Mbororo belong to the ethnic category of Fulbe whose members are dispersed over the Sahel and Savannah belt from West to East Africa. In Cameroon they are represented in many parts of the country, where they generally constitute a regional minority. In the Northwest Region, for example, they account for roughly 10% of the population, the majority of whom are farming peoples here subsumed under the category of Grassfields groups.

The Mbororo may be regarded as a prime example of a stranger population. They are a minority, thought to have emerged from somewhere else in Africa. Having settled in the region in the 19^th and 20^th century, they are considered ‘late-comers’ by their long-established neighbours. Furthermore, they are seen as religiously and culturally different. Finally, as cattle pastoralists they are perceived as ‘nomads’, i.e. people constantly on the move and with no permanent home.

Due to their late arrival in the region and their mobile lifestyle, Mbororo citizenship has been an issue of contention. During the colonial period, they were classified as ‘strangers’ and subordinated to ‘native’ Grassfields authorities. Subsequently, under the regime of Cameroon’s first President Ahmadou Ahidjo, they qualified as Cameroonian citizens. However, on account of their Muslim identity and Fulbe ethnicity, they were subsumed under the cultural category of ‘northerners’. Consequently, Mbororo who were born and grew up in the Northwest Region still counted as ‘strangers’ to the area with limited rights to the region’s natural and state resources.

A wind of change set in with Cameroon’s democratization in the 1990s and the integration of autochthony discourses in national politics. As argued by Geschiere & Nyamnjoh (2000), the introduction of a multi-party system raised significant problems regarding criteria of electoral entitlement and eligibility. Taking into account the high degree of internal mobility and labour migration that characterised Cameroon’s economy since the pre-colonial period, a number of conflicting interpretations of citizenship and belonging emerged. The interpretation endorsed by the government defined belonging in terms of ‘roots’ and ‘origins’. Political priority was given to ‘autochtones’ and ‘indigenous minorities’, meaning members of local ethnic groups. ‘Strangers’ or ‘allogènes’ were instructed to vote or stand as candidates in their home area, since they were thought to represent primarily the interests of their group of origin. At the same time, the Cameroonian government encouraged the formation of ethnic and regional elite associations as vehicles of political representation. This novel political avenue was also explored by young, mostly educated Mbororo who founded the Mbororo Social and Cultural Development Association (MBOSCUDA). The organisation challenged the widespread perception of the Mbororo as a stranger population and claimed recognition of their national and regional citizenship rights. Equivalent to their neighbours, the Mbororo should not just be seen as Cameroonians, but as members of specific communities. Formally, this was achieved by indicating individuals’ actual birth place (instead of an imaginary place in northern Cameroon) in the new computerised identity cards. Practically, it required negotiations with regional and local authorities to promote the integration of Mbororo representatives in decision making processes.

Concurrently, MBOSCUDA reckoned that reversing the historical marginalisation of the Mbororo required more than average citizenship rights. Benefiting from international contacts with development and human rights institutions, the organisation succeeded in claiming international recognition of the Mbororo as an ‘indigenous people’. While the Cameroonian government does not acknowledge the international concept of ‘indigenous peoples’, it has recognised the Mbororo as a ‘marginalised population group’ in need of national integration and concerted development efforts. Thus, in their struggle for citizenship the Mbororo – represented by MBOSCUDA – have gone beyond confirming their Cameroonian nationality, and have successfully claimed regional citizenship as well as minority status.

* Michaela Pelican is lecturer and post-doctoral researcher at the Department of Anthropology, University of Zurich.

References

Bayart, Jean-François, Peter Geschiere and Francis Nyamnjoh. 2001. Autochtonie, Démocratie et Citoyenneté en Afrique. Critique Internationale 10: 177-194.

Geschiere, Peter and Francis Nyamnjoh. 2000. Capitalism and Autochthony: The Seesaw of Mobility and Belonging. Public Culture 12(2): 423-452.

Kymlicka, Will. 2004. Nation-building & minority rights: comparing Africa and the West. In: Bruce Berman et al. (eds.). Ethnicity and Democracy in Africa. Oxford: James Currey. pp. 54-71.

Pelican, Michaela. 2008. Mbororo claims to regional citizenship and minority status in northwest Cameroon. Africa. Africa 78(4): 540-560.

Pelican, Michaela. 2009. Complexities of indigeneity and autochthony: an African example. American Ethnologist 36(1): 149-162.

Citizenship is not only predicated on the inclusion into the nation state through rights that confer upon people the status of citizens but it is also a practice (agency) that enables people to participate in the affairs of the nation state (Gouws, 2005: 3). While women may have status as citizens their agency is often determined by the divide between the public and private (household) sphere that also determines the division of labour in the household.  When the state does not enforce rights in the domain of the private where women’s (second class) citizenship is often shaped through subordination and violence women can not be equal citizens with men. The reconfiguration of the relationship between public and private (and in the case of African countries the domain of customary law that still condones traditional practices such as polygamous marriages, female genital mutilation and paying a bride price in many countries) is necessary for equal citizenship in gender terms.

It is also necessary to understand women’s connection to the private sphere in the case of forced migration. With the disintegration of states and continuous civil war migration has become a way if life for many people in Africa who may migrate between countries in Africa or further North to Europe or North America, linking them into the debate about citizenship issues regarding migrants, refugees and asylum seekers, also bringing into focus problems arising out of greater globalization. Increasing globalization has led to a new definitions of citizenship on the assumptions of greater economic integration, open borders and mobility that locates the migrant centrally on the basis of a double logic – that of belonging and that of separation (Mbembe, 2008).[1]

There has been a gender blindness to the migration debate based on the underlying assumption that men migrate and women migrate as dependents of men. More recent studies have, however, shown that women also migrate independently but for different reasons than men. Women often have to leave their countries because of pervasive gender based violence, such as the use of rape as a weapon of war, especially in Africa, or famine. While some research focuses on security – it encompasses the androcentric traditional notion of security (threats to the country’s sovereignty) rather than safety from gender based violence, food security and the erasure of unequal power relations between men and women. In entering new countries women very often become the victims of xenophobic violence from local populations where there is no recourse to help from authorities such as the police who are often deeply implicated in the violence.

Thinking of citizenship as extending across borders denies the reality of poor women within the nation state and the global order. For poor women to challenge their exclusion from citizenship or demand entry into developed countries is very difficult. Citizenship strategies become tied up in labor strategies, family household politics, a sense of community and a diasporic consciousness (Stasiulis and Bakan, 2005: 2).

As Stasiulis and Bakan (2005: 11-14) point out international migration shows up the universalistic claims of the modern nation state and the ways in which migrants are marginalized in an inequitable context. The inequitability lies in the functioning of migration policies that are highly racialized and gendered, as well as connected to regional discrimination. The nation state therefore remains the most important site for citizenship and in Southern Africa migration has strengthened borders, rather than eradicated them (unlike countries belonging to the Economic Community of West African States (ECOWAS) where it is easier to move across borders).

Under neo-liberal globalization citizenship has become ever more salient and ever more elusive as some people are included but others not. Exclusion creates the conditions of the possibility for citizenship for some (eg. those who are highly skilled) but not for others. In many African countries women have lower levels of literacy and education than men and therefore less attractive as citizens to host countries.

Globalization has not lessened the role of the nation state or the exploitation of the least developed countries (Stasiulis and Bakan, 2005: 2). Increased international mobility gives rise to larger numbers of non-citizens or foreign nationals working and staying in countries other than their own. This is surely true for Africans given the large African diaspora. Citizenship can therefore be viewed as multi-dimensional including a relationship that people have with their countries of origin.

As a consequence of people’s mobility citizenship has become transnational in character, due to the networks that are being built by migrants in their countries of origin and the host country.  States, however, also act in a transnational way – homogenizing regulations and policies on migrants and strengthening cross-border power relations. But even in the case of transnational citizenship women’s exclusion and subordination are still predicated on a specific sexual division of labour as demonstrated by the public/private divide. The division of labor in the household often puts the care burden on women. Care for children, the sick, and the elderly becomes an integral part of women’s citizenship, especially with the greater privatization of care facilities under neo-liberalism. In androcentric conceptualizations of citizenship care is never included as a dimension of citizenship (Gouws, 2005: 5). When women migrate care of children leads to adopting household strategies that will put in place care for children and elderly kin as core components of how they will negotiate their citizenship.

In Africa one of the most important markers of non-citizenship status is poverty but for women it is often also a marker of citizenship. The gendered nature of citizenship as well as migration continues women’s oppression as they end up in the most undesirable and physically draining work such as domestic work, care work or sex work (Stasiulis and Bakan, 2005: 28). Where social welfare provisioning has been outsourced due to neo-liberal policies (or structural adjustment programmes) citizenship for migrants in low paying wage work or who are unemployed becomes reduced to a dependence on the skeletal welfare provisioning (if any at all) by states in Africa. Women are the least able to claim rights when their rights have been violated because litigation is expensive and out of reach for poor women.

Sources

Gouws, Amanda (ed) (2005) (Un)Thinking Citizenship: Feminist Debates in Contemporary South Africa. UK: Ashgate.

Stasiulis, Daiva and Abigail Bakan (2005) Negotiating Citizenship: The Case of Foreign Domestic Workers in Canada. University of Toronto Press.

*Amanda Gouws is a professor of Political Science at the University of Stellenbosch, South Africa.

Or this.
You are the same woman. You meet, like, love, decide to marry somebody who is not Kenyan. You make the decision, as a couple, to stay in Kenya. But you cannot extend your citizenship to him. His stay here is dependent on entry permits—tedious renewals every two years, which could be easily denied should the Department of Immigration decide that he is doing here what any Kenyan could and should do instead. You eventually have children with him. Your children are born and brought up here. But, when you apply for their passports, you discover that they have no rights to Kenyan citizenship at all. Rendering their life here, in the only country that they have known, as tenuous as his.

Or this.
You are a child of a Kenyan father and non-Kenyan mother. Because of your father, you are treated as a Kenyan until the age of 23, at which point you are expected to ‘choose’ your citizenship. You, the person, have not changed—you are not more one thing than the other and you lay claim to both heritages. But you are expected to state your allegiance, prove it by formally surrendering any right to the citizenship of your mother. Even if you have already implicitly stated your allegiance simply by your choice to remain here, for better or for worse. You make the ‘choice’ because you are forced to. You cut yourself off from all you are entitled to through your mother’s citizenship. Or you cut yourself off from formal recognition by your father’s state. You realise for the first time how little the law can correspond with reality. Because you yourself are still the product of both.

Or this.
You are from northern Kenya. You look Somali (you might be, but not necessarily). You apply for an identification card—requirement for everything from basic employment, to registration with the national health and social insurance and tax schemes, to registration to vote. You have to prove a long line of descent going back to great-grandfathers—how is the Kenyan state to otherwise know that you are not, in fact, a Somali from Somalia, trying to sneak in as an undocumented refugee or, worse, an Al Shabaab member? Your local Chief has to vouch for the same—woe unto you if you have ever offended him (it is usually a him) in any way. You realise later that Kenyans of Somali descent—and all ethnicities in the north—are, in fact, still subjected to special vetting procedures to obtain this vital document.

And this.
You are a Kenyan student, male or female. With great difficulty and sacrifice, your family has managed to scrape together the funding to send you away to school. You go through the inevitably ignominious visa application process. You succeed. You are now anywhere else in the world. You have finished school and make the decision to stay and work—perhaps because you know there is little work in your field at home, perhaps because you know you could earn more abroad. You go through the equally ignominious process to acquire the right to stay and work. Eventually, you decide to acquire citizenship wherever you are—to end the constant questioning about your right to be there, to make it easier to move around and, hopefully, upwards in employment in your field. Or even, perhaps, to make it easier for other members of your family to come over and also access the opportunities you have.

But you have stayed connected to ‘home.’ You follow the news online. You debate the goings-on passionately with the other Kenyans you have connected to. You plan, at some fuzzy point in the future to return. You send money home dutifully—first to your family, and then to build up some sort of base for your return. You celebrate the recognition of Diaspora contributions through such remittances to the Kenyan economy. Your claim to Kenya is never in doubt—at least in your own mind.

Lo and behold. The Kenyan state does not think so. On one of your visits home, your confident walk to the line for citizens is halted by an immigration official at the airport. Get to the line for foreigners. After filling out a visa application form. Your protests met with dull indifference. You are not a Kenyan after all. You have become a tourist for all intents and purposes.

These are fictional accounts. But they are based on the reality of citizenship under our current Constitution. Our current Constitution does not recognise the multitude of ways in which belonging to, identification with a state (or several states simultaneously) can and does happen. Our current Constitution does not recognise the multitude of ways in which belonging to, identifying with Kenya can and is denied—on a casually indifferent and routine manner.

Citizenship can be claimed in three primary ways. By birth. By descent. By naturalisation (following, for example, marriage, migration, long term residency for purposes of choice, employment and investment). Our current Constitution, in effect, recognises only citizenship by descent from a Kenyan male—and, in limited circumstances, by naturalisation. It is not enough to be born here. To be Kenyan, you have to be born to a Kenyan father—and, even if you were born elsewhere, as long as your father is Kenyan, you’re in. Although being in is not automatic if you are from the north. And you can, of course, also be in if you chose to naturalise—but doing so means that you have to forfeit any citizenship claims you might hold elsewhere.

I do not think the drafters of our current Constitution could have fully realised what emotional and mental cruelty they were subjecting so many Kenyans to by being so limited in their conception of belonging and identification. True, that Constitution was drafted at the height of the nationalist period—after a protracted struggle against the forcible claim of Kenya by British and other settlers, in which Asian and other migrants inevitably found themselves also enmeshed. The assumption was, understandably, that any African Kenyan was a ‘real’ Kenyan. The proposition was, equally understandably, that any European settler or Asian migrant would have to pledge their loyalty to the new Kenyan state—and would do so by renouncing any other claims of citizenship, in part to stem anticipated capital flight.

The other assumption, of course, on which both European settlers and African Kenyans were in surprising accord—due to imported Victorian legislation on citizenship and customary understandings of the place and role of women—was that Kenyan women did not need citizenship in their own right. They simply needed to get married and all required legal protections would flow.

But being able to grasp the logic then—and even understand it—is not necessarily to admit to that logic being right. And if it was not right then, it is certainly not right now. Kenyans understand that ethnicity, race and migration—both inside and outside the country—are or should not be arbiters of citizenship. Kenyans understand that old ways of managing capital flight are today meaningless in the face of liberalised financial markets. Kenyans understand that gender is or should not be a determinant of citizenship. Not all Kenyan women will be married. And those that are will not necessarily be married to other Kenyans. Ethnicity and race are far more fluid notions than they used to be—in reality, even if that reality does not come through in the kind of racist and xenophobic positioning so prevalent last year.

The provisions on citizenship in the Harmonised Draft Constitution of Kenya are thus a relief. A relief to all of those whose claims to Kenyan citizenship have not been recognised in law (or in practice) to date.
First, it clearly stipulates that citizenship may be acquired by descent from either a Kenyan mother or a Kenyan father—whether born inside or outside of the country. Second, it clearly stipulates that naturalisation can occur either through marriage to a Kenyan of any sex for at least seven years or through lawful residency in Kenya for a continuous period of at least seven years. Non-Kenyan children adopted by citizens are also entitled to citizenship. Third, it clearly stipulates that Kenyans are entitled to dual citizenship—and to regaining their Kenyan citizenship if they had lost it through gaining the citizenship of another state. And fourth, it categorically entitles every citizen to a passport and any other registration or identification document the state may issue.

What these provisions mean is that all of the problems identified in the fictional accounts above have been resolved in the Harmonised Draft Constitution. Kenyan women will have citizenship in their own right. Kenyan women will be able to pass on their citizenship to non-Kenyan spouses and to their children. The children of Kenyans and non-Kenyans as Kenyan emigrants can reclaim (if already lost) or retain their Kenyan citizenship regardless of their having citizenship elsewhere. Northern Kenyans—like all Kenyans—will be able to assert a Constitutional right to registration and identification documents and passports.

The only curious omission is that of entitlement to citizenship by birth—merely being born here is not enough to be in. It is not like Kenya is, say, the United Kingdom or the United States—in which some would-be or acknowledged migrants carefully plan their pregnancies and delivery dates so as to ensure their children of citizenship that would offer them far better opportunities than those available wherever they have migrated from. People are not so desperate to be Kenyans that that kind of degrading choice would present itself as the only choice.

Kenya is, however, it is true, host to a large number of refugees. Perhaps the omission is to prevent citizenship claims posed by children born of refugees while in Kenya—and thus potentially by their parents even when the possibility of return exists? But, if that is the case, under the naturalisation provisions, a documented asylum-seeker or recognised refugee who has been in Kenya for a continuous period of seven years would have the right to apply for citizenship anyway.

That one caveat aside, the Harmonised Draft Constitution’s provisions on citizenship go a long way to resolving the problems of belonging to and identification with Kenya that pertain today. Through those provisions, Kenyans will finally propel themselves into the 21st century world—which is a world far beyond the limited conception of an ethnically and racially homogenous and patriarchal single-nation state. If it were to be on those provisions alone that the referendum’s outcome was to be determined, the Harmonised Draft Constitution would and should pass.

This article was published in The East African, on 23 November 2009.

*L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC)

Since the independence of the Republic of Sudan half a century ago, the identity of the Sudanese nation and state has never been clear. Independence meant different things to different people. Was it a prelude to union with Egypt? Was it a prelude to a federal system of government? Was it Sudan’s second independence–a resurrection of the 19th century Mahdist state? Was Sudan to be a secular modern state? These questions, unresolved at independence in 1956, were not resolved by the Comprehensive Peace Agreement, and remain unresolved today.

Despite all the internal wars which the Sudanese people have fought in their search for a collective identity for their nation, and the fact that some ideologies have been inherently discriminatory, no political party has ever mobilized to try to exclude another group from being Sudanese altogether. Sudanese do not disagree on the fact that they are all Sudanese.

Where there are disagreements on citizenship–such as recent immigrants across Sudan’s western border–they serve to show the underlying strength of the consensus on who counts as Sudanese. Vast numbers of Sudanese citizens have ancestry traceable to west Africa, and Sudan has been accommodating to them all. An important if little-known chapter in the SPLM’s history was its Pan-African Brigade which included citizens of other African countries ready to make common cause in building a New Sudan. No nation in Africa has been more hospitable to incomers.

Will this common, expansive identity change with the southern Sudanese vote on self-determination, in little more than a year? I expect not. Should the south separate, the identity question will not be resolved, and the debate on the identity or identities of the Sudanese nation or nations will continue.

Should the southerners choose independence, what will the new country be called? Obvious names include “South Sudan” and “New Sudan”, both names that reaffirm the southerners’ attachment to a common Sudanese identity.

Whatever happens between now and the referendum, and in the aftermath of the referendum and possible partition of the country, it is essential that ordinary citizens of Sudan should not become the victims. Violation of citizenship rights is one of the most common abuses in the aftermath of partition or separation. Africa is no stranger to such abuses, and there has been a vibrant debate on the topic of citizenship rights on the African Arguments blog, following on the recent publication of Bronwen Manby’s book, Struggles for Citizenship in Africa.

In 2004, Egypt and Sudan agreed the “four freedoms”: freedom of movement, residence, ownership and work in either country. Some Sudanese see this as a model for a future agreement between north and independent south. I doubt whether this would be sufficient to guarantee full respect for human rights of southerners in the north and northerners in the south, and for members of those communities that straddle the internal boundary. I hope that something stronger could be agreed: a common citizenship of north and south.

How this would work, I am not at all sure. The complexities of any state partition are formidable. It is important that citizenship issues are discussed now, and agreements are reached in the next twelve months.

So what drives this strong linkage? The immediate answer, of course, is that land is a vital economic commodity in a land-dependent country such as Burundi – and it is also in chronically short supply. As a government official told us, “This is a small country with a big population. And people are cultivators.” (Bujumbura, 17 06 09). Yet economically, the return process is proving to be a huge challenge. Those who do now know where their original land was – or worse, whose land is now being used for government enterprises – are being relocated into “peace villages”. Designed by UNHCR and others within the humanitarian machinery as a convenient way of relocating people onto available land – a great idea in theory, but profoundly unpopular in practice as they are seen as a further form of marginalisation. For returnees who do know where there land is yet find other families living on it, government policy dicatates that they share the land.

While sharing is a pragmatic response to a complex problem, from an economic point of view the solution is palliative at best – it is unlikely that many of the families currently sharing land are going to be able to meet the immediate basic needs of their family for long let alone essential costs such as medical and school fees. With neither party receiving any form of compensation, everyone feels that they have lost out and the challenge to generate a livelihood for their families has only got harder.

But land, of course, is much more than an economic commodity, and the redistribution of land is not just an economic and pragmatic exercise: it relates to issues of justice, reconciliation and sustainable peace, and has enormous consequences for wider issues of reintegration and notions of belonging and inclusion. These broader issues are what beat within the heart of the current process, and were dominant throughout the research: if their significance is overlooked, the implications are far-reaching and potentially dangerous.

Access to land – and access to a specific piece of land – was intimately connected with people’s understanding of identity. For many in Burundi, identities are, literally, rooted in the soil. The fact that displacement has created such a fundamental disjuncture between territory and belonging has only heightened the interconnectedness of the two. Those who are returning from exile after decades of alienation, are searching for continuity with their past, which is most tangible through physically returning to the land from which they fled, and on which their ancestors lived. As one informant said, “land connects the current generation to their ancestors… Land, and especially family land, is priceless; it is a gift you get from the ancestors and it is a gift you have for your descendants. Land keeps the extended family together and as such it is like a clan umbilical cord.” (Rutana Province, 02 07 09). As a result, numerous interviewees, when asked if they would be happy to be given an alternative piece of land, said that they would not, as “family land… gives you a name.” (Makamba Province, 12 07 09)

But land also has wider, political implications that relate to notions of political citizenship and re-engagement of the relationship with the state. The political forces that kept them excluded as legal aliens throughout their time in Tanzania are seen as being reversed by the process of returning to Burundi and re-asserting their legitimacy to belong within a national context. The findings show that the realisation of citizenship for returnees is centrally contingent upon fair and effective repossession of land – and specifically family land — signifying an end to the causes of flight that broke their citizenship bond in the first place.

As such, the current process is linked into wider issues of governance and justice and to the way in which people perceive the necessary attributes for (re)assertion of their Burundian citizenship. When asked what it meant to regain their citizenship, repeatedly returnees talked of recovering access to their family land as a primary indicator that they were once more “Burundian” and no longer in a state of exile. Conversely, those who have not gained access to their land talked of how they felt that they had not yet become Burundian once more. As one woman who has been unable to claim back her land said, “We cannot feel that we are citizens as long as we are not treated as Burundians in what should be ours without discrimination. We are currently discriminated against.” (Rutana province, 02 07 09)

Specifically, gaining access to land represents the renewal of a political relationship with the state. The role of government (albeit realised in numerous configurations over the past decades) was seen as both the source of injustice that caused flight in the first place, and the current force behind the redistribution of land: numerous interviewees talked of the unfair distribution of resources by government, and the injustice that this represents, as lying at the heart of the cycles of war and displacement that have dominated the country’s recent history. By the same token, the fair distribution of land was seen as an antidote to such cyclical patterns of violence.

All of this presents a huge challenge for a country that is beginning the long and painful task of reconstruction after decades of violence, political turmoil and displacement. The challenges it faces are hard to exaggerate. The fact that half a million people are able to return to their homes, some after more than three decades in exile, is extremely encouraging and symbolises optimism for the country’s future. Yet the effective reintegration of those who have been displaced is also probably the greatest challenge facing the country.

In order to prevent creating the conditions for future violence, the government is having to grapple with meeting two somewhat competing demands: the fact that land is seen as a critical marker of identity and belonging, and that it is a dwindling resource for livelihoods in Burundi. On the one hand, therefore, systems for resolving disputes over competing claims for land need to be constructed in such a way as to acknowledge and, to the extent possible, address the serious human rights violations of the past. If they are not seen to be just, they risk sowing the seeds of further conflict. At the same time, there is a need to address factors that are imbuing land with such critical importance, and alternative forms of livelihood that are not dependent solely on land must be promoted.

*Dr. Lucy Hovil is Senior Researcher, Citizenship and Displacement in the Great Lakes region, a joint research and advocacy initiative of the International Refugee Rights Initiative and the Social Science Research Council.

Most people are quite familiar with homicide, which can occur as either murder or manslaughter. Most have not heard of civicide, although they may recognize it when described. Civicide destroys the existence of a political community or accomplishes the same goal with respect to the existence of a person as a citizen. In other words, civicide changes the citizen into a stateless person. In one stroke, civicide reduces an individual to a non-person.

In her book, The Origins of Totalitarianism, Hannah Arendt describes citizenship as “right to have rights…and a right to belong to some kind of organized community.” The United States Supreme Court considered in the case of Trop vs. Dulles, 356 U.S. 86, at p.101, that civicide or the creation of statelessness is “a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.”

In October 2009, Nigeria’s Federal Government was caught in the act of civicide. On 17 September 2009, the Permanent Secretary in Nigeria’s Ministry of Foreign Affairs, Joe Keshi, an Ambassador, communicated to all of Nigeria’s foreign Missions a decision “taken at the highest level” not to grant any Consular assistance to Nuhu Ribadu and Nasir El-Rufai, two former senior public officials now exiled from Nigeria. The Nigerian government agrees that they are both citizens and confesses that it seeks to curtail their freedoms of movement and expression by denying both of them access to basic obligations owed to citizens by the Nigerian State to offer and facilitate their access to consular protection and assistance.

Nearly one month later, on 13 October, public indignation that followed the leaking and subsequent publication of this official directive forced the government to announce a climb down. A directive signed by Minister of State for Foreign Affairs, Bagudu Hirse, claimed that the first directive of 17 September “had no authority of Mr. President”, and reversed it. In the latest installment of this tortured tale, the government let it be known that the original directive was issued at the instruction of the Director of the National Intelligence Agency (NIA), Mr. Emmanuel Imohe, who thereafter became the latest victim of natural attrition in the public service.

None of this makes sense because it was not meant to make sense to begin with. To believe the official line in this sorry saga would require us to accept that the institutional channels of the Nigerian government have collapsed.

Article 5(d) of the Vienna Convention on Consular Relations, 1963, clearly enumerates the functions of consular officials to include “issuing passports and travel documents to nationals of the sending State”.

Citizenship is a human right. The Universal Declaration of Human Rights, now recognized as customary international law, recognizes this right in Article 15 and prohibits its arbitrary denial. Article 13 of the same Declaration also guarantees a right to freedom of movement, prohibits forced exile and binds all countries to the promise that “everyone has the right to leave any country, including his own, and to return to his country.”

The denial of consular services is one of many ways through which African States procure civicide. There are many others such as the denial or destruction of identity documents like passports, official acts of de-nationalization of citizens, or forced deportation, expulsion and exile. All these measures involve abuse of power. Many of them rely on faceless public officials reading the history of post-colonial state succession and Africa’s complicated post-colonial boundaries upside down.

The list of African countries involved in this condemnable practice grows longer not shorter. In addition to Nigeria, Zimbabwe, Zambia, Tanzania, Kenya, Eritrea, Ethiopia, Equatorial Guinea, Cote d’Ivoire, and Botswana are some examples of other recent culprits.

Yet, unlike homicide which is recognized as a crime in every African country, civicide isn’t. Unlike the Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights does not even guarantee a right to nationality and many African countries behave as if they can unilaterally decree solutions to the problems caused by post-colonial state succession.

The only way to address these problems is to adopt a regional treaty that recognizes the right to nationality, prohibits civicide or statelessness, establishes mechanisms of dispute resolution in cases of disagreement over nationality and allocates incidence of burden of proof in such processes. Such a treaty would, for instance, clearly prohibit the denial of consular protection and assistance.

Refusals to issue a passport and denial of access to consular assistance are all acts of civicide. These acts cannot be condemned enough because they destroy the very bases of statehood and the duties of the government towards the citizens from whom it derives its legitimacy.

Governments that feel able to deny or exclude their citizens from the civic space lose the right to exist or essentially assert that the citizens are irrelevant to their existence and legitimacy. Such regimes perfect the art of stealing elections. In the outpouring of indignation that greeted this latest installment of civicide in Africa, Nigerian citizens make it clear that any attempt to steal citizenship will be fought bitterly. That is as it should be. The point is that Africa cannot afford the cost of any such conflicts. A regional treaty on citizenship and stateless is the surest way to prevent this.

*Chidi Anselm Odinkalu is Senior Legal Officer, Open Society Justice Initiative

Millions of people living in Africa find themselves without these papers: non-persons in the only country they have ever known. Because they are not recognised as citizens, they cannot get their children registered at birth or entered in public schools or universities; they cannot access state health services; they cannot obtain travel documents, or employment without a work permit; and if they leave the country they may not be able to return. Most of all, they cannot vote, stand for office, or work for state institutions.

Alternatively, incumbent governments have abused citizenship law to prevent specific individuals from challenging for political position or to silence those who criticise the government. Kenneth Kaunda of Zambia and Alassane Ouattara of Côte d’Ivoire — a former president and a former prime minister — are only the most high profile politicians who have suddenly found that they were no longer regarded as citizens of the country they sought to lead again.

Ultimately such policies can lead to economic and political disaster, or even war, as the bloodshed in Côte d’Ivoire and the mis-named Democratic Republic of Congo most effectively demonstrate. Even where they do not, they have been used to subvert the democratic process and reinforce or prolong the hold on power of one group at the expense of another – as people who thought they were nationals of Mauritania, Ethiopia, Eritrea, Sierra Leone and other states have found. At the expense, too, of national stability and economic progress – as the case of Zimbabwe most clearly demonstrates. Or they simply create injustice and exclusion of marginalized ethnic groups, in the face of all Africa’s human rights commitments: a hundred thousand Nubian Kenyans, whose ancestors came to the country with the British, today cannot obtain papers showing that they are Kenyan nationals, though not even the Kenyan government asserts that they could or should somehow obtain Sudanese passports instead.

The pattern of crises related to citizenship discrimination is not haphazard. It is closely linked to the colonial heritage of each country; and in particular the migration and land expropriation that was implemented or facilitated by the colonial authorities. It is not a coincidence that the countries where citizenship has been most contentious are often the countries that saw the greatest colonial-era migration; migration not only of Europeans and Asians to the continent, but in far greater numbers of Africans within the continent.

Today, however, it is the children, grandchildren and great-grandchildren of those who migrated who are still regarded as foreigners. Yet they are in the land of their birth and life-long residence and have no claim on the protection of any other state. Politically disenfranchised, there is no demonstration of loyalty that can satisfy the requirements of the state.

This injustice is multiplied by a gender inequality in the law which in at least a dozen African countries disallows women who marry non-citizens from passing their own citizenship to their children, and in a dozen more deprives them of the right to pass citizenship to their husbands.

Much as this sort of ethnic and racial discrimination is always multifaceted, with raw violence at its extremes, manipulation of the detailed rules and regulations by which individuals can obtain recognition of their right to belong to a state – or a sub-national unit, as in Nigeria – is at the heart of many of Africa’s most intractable problems. The apparently dry detail of the rules for obtaining papers can hide an ocean of discrimination. It is this detail that has been the focus of a 5 year project by the Open Society Institute, resulting in two new publications (Struggles for Citizenship in Africa and Citizenship Law in Africa) that describe the discriminatory provisions of African laws, and the damaging consequences for peace, security and democratic governance that result.

Of course, resolution of the complex problems of exclusion and inequality in Africa will require action across the board and not only reforms of citizenship law. Côte d’Ivoire, DRC and Zimbabwe most obviously — but also many other countries — will need equitable methods to adjudicate competing claims to land and provide secure tenure for the future. Everywhere measures are essential to ensure the right to access state services and to benefit on a more equal basis from the national wealth, whatever one’s race, ethnicity, gender, or region of origin or residence. Measures of affirmative action are surely justified to overcome inequalities created by colonial history. Moreover, Africa is of course certainly not the only continent where citizenship discrimination is rife: OSI has documented similar patterns in Europe, the Americas and Asia.

But an effort to address citizenship law discrimination will need to be at the centre of efforts to resolve conflict and strengthen democracy in Africa. African states, like other states, are made up of people thrown together by historical circumstance. A citizenship law that founds itself on a concept of ethnic or racial purity, or an essential link to the land, is not adapted to the reality of historical and contemporary migration. Gender discrimination is no longer acceptable in today’s world: a world where most African states have signed up to African and international treaties acknowledging their obligation to work for gender equality. Those who find themselves living within a single polity on a lifetime basis need rules, fair rules, to govern their right to belong to that country – and African states and the African Union should commit themselves to change the rules where they are not fair. National constitutions and a continental treaty should enshrine the right to a nationality.

*Bronwen Manby is senior programme adviser , Africa Governance Monitoring and Advocacy Project (AfriMAP), a project of the Open Society Institute.

A key weakness of the right to citizenship is that Article 15 is stated in terms of the rights of individuals without indicating what state is responsible for implementing the right. Protection of most human rights is, quite logically, the responsibility of the state in which individuals reside, or the state that is violating the right. When a person is detained arbitrarily, it is usually clear what state is detaining her. Yet states generally do not give citizenship to individuals just because they are residents, or even because they are born there, and international law doesn’t require them to. So the question of which state is violating the right of any particular stateless person (and by implication, responsible for giving her citizenship) isn’t clear from the Universal Declaration.

Another basic problem is that the right to nationality is not well-defined in international law, and not intuitively understood. What does it really mean? To have the right to political participation? To have documentation proving that one is a citizen? In practice, it depends on the context and country. In absolute monarchies, all may be citizens but no one has the right to political participation. In other countries, which have no national id cards, citizens and non-citizens are indistinguishable by documentation. In contrast, the right to freedom from arbitrary detention is much easier to intuitively understand—plus there is lots of international law and jurisprudence, developed over decades, defining it.

The lack of a clear definition of citizenship means that it is hard to separate the idea of a right to citizenship/nationality in the abstract from state recognition of that citizenship in practice. If a person is tortured, we don’t believe that he has no right not to be tortured, but that his right not to be tortured is being violated. But because the right to citizenship is so poorly defined in law that it’s hard to say when someone has it; thus, when that person is denied or deprived of citizenship, or proof of citizenship, by a state, the victim herself may conclude that she is stateless, rather than that her right to citizenship has violated. But many of the world’s stateless people would not be stateless at all if their country’s laws were non-discriminatory or properly implemented.

Although many of the rights contained in the Universal Declaration have been elaborated into binding international human rights instruments, some with treaty bodies to interpret them, international law has made little progress in developing the right to citizenship/nationality relative to other rights. This is understandable if one considers that for decades, human rights were so imperfectly defined and poorly respected that most people didn’t have their rights whether they were citizens or not.

As the international human rights regime has grown stronger and stronger and the culture of respecting rights has grown, lack of citizenship has become one of the few grounds upon which states can deny individuals their rights and not be called to account. When violating or failing to protect the rights of non-citizens, states may claim that they do respect human rights, but are simply not responsible for non-citizens who live within their borders. To a certain extent, they are right—it is permissible to make distinctions between the rights of citizens and the rights of non-citizens. But many of the world’s ‘non-citizens’ may in fact be citizens whose right to citizenship is being violated by not being recognized by their state. Because the right to citizenship is poorly defined, we should be suspicious of states’ claims as to who the non-citizens are.

Despite these weaknesses, international human rights law does constrain states in granting and withholding citizenship in some ways. For example, international antidiscrimination norms make it clear that denying citizenship to individuals on the basis of their gender, ethnicity, religion or other status is impermissible. But in practice, lots of citizenship laws discriminate in violation of these norms.

The problem that international law does not indicate which state is responsible in any given instance of statelessness, has been addressed by two international treaties on children—the UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. Both of these treaties address a specific population, children who are born on the territory of a state who would otherwise be stateless. Both are very widely ratified (only the US and Somalia have yet to ratify the CRC, and in Africa 45 of 53 states have ratified the African Children’s Charter). Although the provision deals only with children, if states respected this obligation it would seem to ensure that the problem of statelessness would be solved within a generation.

However, the problem that citizenship (and conversely, statelessness) is poorly defined undermines the implementation of this positive obligation of states to grant citizenship to children. In practice, states never admit that the children they deny citizenship to are stateless. States prefer to pretend to believe that the children born on their territory and denied citizenship are citizens of another state, so the obligation in the CRC and the African Children’s Charter doesn’t apply. For an individual to counter this assertion—to prove that she or he is not a citizen of any other state—is extremely difficult, especially when, as in Zimbabwe in recent years, ‘citizenship’ has been taken to mean any possible claim to another citizenship, rather than one that a person actually holds.

These two areas—the lack of states’ positive obligation to grant citizenship and the fact that citizenship is poorly defined—are two areas of international law that urgently require greater elaboration of the right to citizenship is to become meaningful.

*Julia Harrington is senior legal officer for equality and citizenship, Open Society Justice Initiative