International human rights treaties go far in providing rights to birth registration and nationality, but the scope of these rights is not infinite. Turning to SADC revealed that the region in general had a number of barriers in terms of birth registration and nationality.
INTRODUCTION AND BACKGROUND
- Introduction
- Research Question
- Methodology
- Literature Review
- Chapter breakdown
It is argued that birth registration legislation and practices in the SADC region urgently need to be improved to reduce the incidence of statelessness. Despite this, it is not uncommon for civil registration law and practice to limit the child's right to nationality and birth registration.
INTERNATIONAL LAW BASIS FOR BIRTH REGISTRATION
- Introduction
- Birth Registration
- The Substantive Requirements for the Implementing the Right
- International Aid and Implementation
- Procedural Rights for Birth Registration
- Late Registration
- The Best Interests of the Child Principle
- Conclusion
The ACRWC Commission has asserted that the interpretation of Article 6(2) of the ACRWC should be interpreted in such a way that undocumented children are given the right to birth registration. 107. Second, that the implementation of birth registration is related to the principle of the best interest due to the indivisibility of these rights.
INTERNATIONAL LAW BASIS FOR THE RIGHT TO NATIONALITY
- Introduction
- International and Regional Framework for Nationality
- Does the right to ‘a’ nationality in the CRC and ACRWC protect undocumented migrants from becoming stateless?
- Modes of nationality attribution
- The deprivation of nationality
- Conclusion
Also, because there is such widespread ratification of the CRC within SADC, the right to nationality has almost universal application.176. 189 African Union Commission 'The African Union Approach to the Right to Nationality in Africa' para 5, available at. Protect the right to a nationality in the CRC and ACRWC undocumented migrants from becoming stateless.
In other words, the child is entitled to a nationality, but not to the nationality of the host country.199 This is mainly because the authors of the ICCPR decided that there could be no question of an “unqualified”. However, the lack of a right to the nationality of the host country leaves much to be desired, and in practice many children may still find themselves in a legal limbo. However, the right to nationality has an important feature because it generally does not take into account the nationality of the host country, but rather that the host country must take measures to ensure that the child acquires the nationality.
ANALYSING SADC
IMPLEMENTATION OF INTERNATIONAL OBLIGATIONS
Introduction
Nationality Barriers in SADC States
Citizenship is usually granted to foundlings at birth.268 Some may enter the host country with their family members or relatives, but then become separated due to the death of guardians, abandonment or neglect.269 It is also common for foundlings to lack the necessary documentation to prove their identity, such as a birth book or birth certificate.270 Therefore, there is a real risk of statelessness and exploitation.271 In some countries that grant citizenship to found children, it is assumed that they were born on the territory, for example in Article 35 of the Zambian Constitution, which stipulates that foundlings are "presumed to be citizens by birth".272 In this case, it is clear that the attribution of jus soli is guaranteed, even if it is not clear whether the child was born. in the territory or not, thereby increasing the quality of protection. Another way to grant citizenship at birth is to provide it to children who would "otherwise remain stateless". This protection is found in the 1961 Convention, the CRC and the ACRWC. This is even more so when dual jus soli is provided, which guarantees citizenship for two generations.277 Mozambique is currently the only SADC country that provides this type of jus soli to every child born on its territory.278 Under Article 1(b) under its Nationality Law, citizenship is guaranteed to any person born in Mozambique who is "born to stateless parents or to parents of unknown nationality or to unknown parents."279 On a practical level, it is unclear whether migrants can actually prove birth in Mozambique, but since a large proportion of the undocumented population.280 In addition, there are inconsistencies between the constitution and the citizenship law, such as different rules regarding dual citizenship.281 As well as general confusion about the legal framework and inadequate guidelines to ensure proper implementation.282 Regardless of implementation issues it would be a big step in reducing statelessness if other SADC countries followed suit and ensured the universal allocation of jus soli to all children at birth.
276 African Union 'Status List', available at https://au.int/en/treaties/african-charter-rights-and-welfare-child, accessed 21 August 2021; Declarations and reservations to the Convention on the Rights of the Child, op. cit, note 176. First, some SADC countries discriminate on the basis of gender, such as Eswatini, Lesotho and Malawi.283 In Eswatini, for example, citizenship is transferred only by sanguinis law through the patrilineal line, meaning that women cannot transfer their citizenship to their children.284 This proves problematic when the migrant mother has a nationality but is unable to pass it on, leaving the child stateless, in violation of Article 9 of CEDAW. 285 Second, if there are citizens living abroad for whatever reason, some countries only allow the transfer of jus sanguinis to the first generation, which means that any subsequent generations, such as grandchildren, cannot claim the citizenship of the country of origin. In Tanzania, the total cost of the entire naturalization process can be as much as $5,000.294 In addition to these exorbitant costs, the minister can still reject the application,295 and all children of the applicant must file a separate application.296.
Organisational structures used in the SADC
However, current evidence shows that decentralized systems seem more suited to address SADC challenges because they are so accessible. For example, a study in Tanzania shows that birth registrations in districts using centralized systems provide far less coverage than districts using decentralized systems. The study analyzed four districts based on which registration system was used in a twelve-month period.
310 Of the four districts, the two that used a centralized system, Dodoma and Kibaha, had an average registration coverage of 14 percent. Iringa and Mbozi, the districts that used a decentralized system, had an impressive average of 60 percent coverage.311 In Iringa in particular, a decentralized system increased registration coverage from 1 percent in 2014 to 67 percent in 2016.312 The only states using a decentralized system systems are Madagascar, Mozambique and the Comoros.313.
Barriers to birth registration in SADC states
320 UNICEF 'CRVS - Birth, Marriage and Death Registration in Namibia', available at https://data.unicef.org/crvs/namibia/, accessed 19 July 2021. 360 UNICEF 'CRVS - Birth, Marriage and Death Registration in Angola', available at https://data.unicef.org/crvs/angola/, accessed 20 August 2021. 364 UNICEF 'CRVS - Birth, Marriage and Death Registration in Botswana', available at https:// data.unicef .org/crvs/botswana/, accessed 20 August 2021.
376 UNICEF 'CRVS - Birth, Marriage and Death Registration in Swaziland', available at https://data.unicef.org/crvs/swaziland/, accessed 19 August 2021. 378 UNICEF 'CRVS - Birth, Marriage and Death Registration in Lesotho', available at https://data.unicef.org/crvs/lesotho/, accessed 19 August 2021. 391 UNICEF 'CRVS - Birth, Marriage and Death Registration in Mozambique', available at https:// data.unicef .org/crvs/mozambique/, accessed 17 August 2021.
Conclusion
The ID of the mother and father is required, as well as their nationality. Birth registration requires the identity card and the nationality of the mother and father.408 Stateless persons can still register, provided they meet additional requirements. There is a 2 USD late registration fee, but the early registration period is 6 years.411.
As already mentioned, properly implemented birth registration is an important factor in reducing statelessness among undocumented children. That being said, the organizational structure used to facilitate birth registration is very important, as centralized systems have less favorable outcomes compared to decentralized systems. In the next chapter, we will focus on South Africa to analyze the specific barriers that may be present in that country and to provide more depth to the discussion on South Africa and Zambia.
SOUTH AFRICA AND ZAMBIA COUNTRY PROFILES
- Introduction
- International Treaty Commitments
- Undocumented Migrants and Nationality
- South Africa’s organisational structure
- Barriers to birth registration access
- Conclusion
- Country Profile: Zambia
- Zambia’s track record in ratifying international conventions
- Nationality for undocumented migrants
- Zambia’s organisational structure
- Birth registration and undocumented migrants
- Conclusion
421 Joint Submission to the Committee on the Rights of the Child op cit note 400 at 6-7. 426 Joint Submission to the Committee on the Rights of the Child op cit note 400 at 10. 431 Joint Submission to the Committee on the Rights of the Child op cit note 400 at 2.
434 Joint submission to the Committee for Children's Rights op. cit note 400 at 2. As already mentioned, Article 2(2) of the Citizenship Act provides access to citizenship for children who would otherwise be stateless. 455 Joint submission to the Committee on the Rights of the Child, supra note 400 at 6.
RECOMMENDATIONS AND CONCLUSION
- Introduction
- Law Reform
- Civil and Structural Reform
- Conclusion
It is therefore proposed to amend section 2(4)(b)(ii) of the BDRA and remove birth registration as a requirement.536 Zambia remains silent about the. 536 Joint submission to the Committee on the Rights of the Child op cit. note 400 at 9. Ratification of additional conventions should be across the board as there are significant shortcomings in the acceptance of the ICRMW, the 1961 Convention and the 1954 Convention. Convention.
541 Joint Submission to the Committee on the Rights of the Child op cit note 400 at 8. Although children do not have a right to the nationality of the host state, host states must ensure that the right to nationality is made available to them. However, SADC states have had uneven application of the law and these gaps have resulted in widespread marginalization and human rights abuses.
BIBLIOGRAPHY
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) A/RES/45/158. Committee for the Protection of the Rights of All Migrant Workers and Members of Their Families. 4 of the committee for the protection of the rights of all migrant workers and members of their families and no.
Committee on the Rights of the Child ‘Conclusive observations on the Combined Fifth to Seventh Periodic Reports of Angola’ (2018). Human Rights Advocates' Joint Submission to the Committee on the Rights of the Child 88th Pre-Sessional Working Group February 8-12. United Nations Convention Collection "International Convention for the Protection of the Rights of All Migrant Workers and Members of Their Families".
