“Restore the factory settings”: Efforts to control executive discretion in nationality administration in Africa

By Bronwen Manby (London School of Economics), GLOBALCIT Collaborator

March 2018 saw a series of bold rulings by African courts to protect both prominent politicians and ordinary people against excessive discretion in decisions relating to the right to a nationality. Most notably, the African Court on Human and Peoples’ Rights, in its first decision touching on nationality administration, found Tanzania in violation of norms against arbitrary deprivation of nationality. National courts in Kenya and South Africa also insisted on the rights of individuals to due process as governments deliberately abused, or simply failed to exercise, their powers. Potentially of even more significance, African governments were simultaneously considering the draft text of a proposed protocol to the African Charter on Human and Peoples’ Rights that would enshrine these principles as continental law.

On 22 March 2018, the African Court, the apex human rights court for the African continent, headquartered in Arusha, ruled against its host country in the case of Anudo Ochieng Anudo. Anudo was a project manager with a German NGO working on access to clean water. In 2012, when he was seeking to register his marriage, his passport was confiscated on the grounds that there were doubts about his citizenship. Following an investigation, the immigration service concluded in August 2014 that Anudo had obtained recognition of Tanzanian citizenship on the basis of false documents. He was arrested and beaten, compelled to sign a document stating that he was a Kenyan citizen, and on 1 September 2014 deported to Kenya. Kenya sought to deport him back to Tanzania, saying he was not, in fact, Kenyan. Anudo was stranded in the no-man’s land between Kenya and Tanzania, where he remained for more than three years. The case was brought before the court in May 2015.

Tanzania is one of a minority of African states that have accepted the right of petition by individuals to the African Court, not requiring referral by the African Commission on Human and Peoples’ Rights. The Court accepted jurisdiction, rejecting an argument that Anudo had not exhausted his domestic remedies, on the grounds that the relevant Tanzanian laws (the Immigration Act and the Citizenship Act) specifically state that “the minister’s decision shall be final”, excluding court review. In its ground-breaking decision on the merits, the court held that Tanzania had arbitrarily deprived Anudo of citizenship and rendered him stateless, in violation of Article 15(2) of the Universal Declaration of Human Rights, and had then arbitrarily expelled him from Tanzania. The Court consequently also found Tanzania in violation of Articles 13 and 14 of the ICCPR and Article 7 of the African Charter that guarantee due process, including in cases of expulsion from a country. It ordered Tanzania to restore Anudo’s rights and to amend its national laws to bring them into line with international law requirements of due process.

The African Court’s decision in the Anudo case materially advances the existing jurisprudence of the African human rights bodies in nationality cases, in cases concerning both high profile political figures and ordinary individuals denied their rights. By contrast to the African Commission or the African Committee of Experts on the Rights and Welfare of the Child, responsible for their own treaties only, the African Court has jurisdiction to interpret any human rights instrument to which an African state is party. The Court’s judgment thus also advances international law, especially by its confirmation that arbitrary deprivation of nationality, the subject of a bi-annual resolution at the UN Human Rights Council, extends to arbitrary denial of nationality where formal deprivation procedures are not invoked. Perhaps even more importantly, the Court held that in such cases the burden of proof that a person was not a citizen fell on the State, not the individual—against the usual assertions by states.

This groundbreaking decision fell in the same month as important national court judgments in South Africa and in Kenya.
In South Africa, the Pretoria High Court followed a sequence of court decisions finding the Minister of Home Affairs in violation of constitutional or legislative obligations in citizenship matters, with a finding that the minister’s failure to determine a person’s citizenship was in violation of the constitution. Lumka Nzama was born in 1980 at home on a farm in South Africa of a Swazi mother and a South African father. The Department of Home Affairs blocked his national identity card and questioned his citizenship in 2012, during a general campaign to verify identification documents. Three years after a formal application for his citizenship to be confirmed, the Minister had made no decision, leaving Nzama with no identity documents or immigration status. The High Court found that he was entitled to South African citizenship, declared him to be a citizen, and ordered Home Affairs to unblock his identity card.

The Kenyan case concerns by far the most high profile individual of the three. Miguna Miguna is a Kenyan opposition politician, a spokesperson for Raila Odinga as the unsuccessful presidential candidate for the National Super Alliance (NASA) in 2017. On 30 January 2018, Miguna administered an oath of office to Odinga, proclaiming him “the people’s president”, in a mock swearing in ceremony staged in protest at what were alleged to be stolen elections. Miguna was arrested and charged with treason, his Kenyan passport was seized and he was forced to leave the country—on the grounds that, having previously acquired Canadian citizenship, he had automatically lost Kenyan citizenship (though his passport had been renewed in 2009). Although the 2010 Constitution and 2011 Citizenship and Immigration Act permitted dual citizenship for the first time, it was asserted Miguna could only recover his Kenyan citizenship on application. As Miguna shuttled between detention and deportation, and between Kenya, Dubai and Canada, different courts ordered the Kenyan government to produce him in court, to return his passport, to cancel the deportation, and to permit him to enter the country. The government ignored the orders. It also failed to pay the consequent fines ordered for contempt of court.

Among the series of Kenyan court decisions on the Miguna case, perhaps the most eloquent was that issued by the Nairobi High Court on 15 February. Overturning decisions by the Cabinet Secretary and ordering the Director of Immigration to surrender Miguna’s Kenyan passport, Judge Luka Kimaru commented that the only solution to the government’s misdemeanours was, quoting the urging of his daughter’s favourite teacher to pupils falling short of expectations, to “restore the factory settings”; that is, “to purge the contempt of the orders of this court, the status quo ante must be restored.” While the Kenyan courts have not yet ruled on the facts of Miguna’s entitlement to citizenship in this saga, the consistent tenor of the decisions was that the constitution did not give the executive a free hand to determine on its own account whether or not Miguna had in fact lost his Kenyan citizenship when he acquired a Canadian one, and whether he needed to apply to reacquire it.

While these cases were being heard, African government delegates were meeting in South Africa to discuss the 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, adopted by the African Commission in 2015, and since then wending its way towards consideration by the political bodies of the African Union. The draft protocol anticipates the ruling of the African Court in Anudo with an insistence on due process in nationality matters—the importance of which for those at both ends of the socio-economic spectrum is emphasised by the Nzama and Miguna cases in South Africa and Kenya. Yet more significantly, the protocol would establish baseline rights to a nationality based on strong connections to a territory, even if a person cannot demonstrate that he or she is stateless. Unsurprisingly, the text proved controversial. State delegates will meet again to complete consideration of the text in Abidjan in May.

Note: This blog entry was first posted on the Citizenship Rights in Africa website. The featured image was taken by Maina Kiai.