Unblocking access to citizenship in the global South: Should the process be decentralised?

By Bronwen Manby (London School of Economics, regional GLOBALCIT coordinator for Africa)

More than one third of global migration has low and middle income countries as the destination;  three-quarters of the global refugee population is hosted by countries in Africa, Asia or Latin America and the Caribbean. Yet few migrants and refugees hosted by poor or middle-income countries ever get the opportunity to change their nationality and become citizens of the states where they settle. I propose that the problem of lack of access to citizenship should be addressed by developing local responses rather than national ones.

The right to change nationality

Article 15 of the Universal Declaration of Human Rights establishes three elements of the right to a nationality in international law: the right to a nationality itself; the right not to be arbitrarily deprived of nationality; and the right to change nationality. The first element gets attention from those interested in the conundrum of statelessness, in membership and belonging; the second from those concerned about discrimination, due process, and the rule of law; but the third element is comparatively neglected by the policy and scholarly communities.

What does the right to change nationality mean? At the minimum legalistic level it requires that a person should have the right to renounce a birth nationality (provided that they can show that they have or will immediately acquire another nationality). But for the right to be real a person must also have the right to acquire nationality in another country than their country of birth, based on their strong connections there. In practice this is often not available.

The percentage of settled immigrants with host country citizenship reaches 90 percent in Canada, 81 percent in Australia, 62 percent in the US, and an average of 59 percent across the European Union (though with much variation).  In Africa and Asia we have no such statistics: but it is clear that naturalisation is often almost completely inaccessible, especially to those who most need it. Among African states, Nigeria – population estimated at 200 million – grants no more than a couple of hundred people citizenship each year (among them a substantial number who are the wives of Nigerians; gender discrimination applies in acquisition by spouses). South Africa, which until around 2010 naturalised ten thousand or more each year, has decided that naturalisation should be ‘exceptional’ and reduced the numbers to a few hundred. The statistics that can be gleaned from other African countries indicate that the numbers are everywhere low, sometimes in single figures each year, or zero.

The naturalisation provisions in the laws of post-colonial states largely mirror those of the colonisers, with minor variations adopted since independence – usually to make citizenship harder to acquire, by lengthening the residence period or creating stronger requirements of cultural assimilation. The list of conditions for naturalisation is, however, largely irrelevant. The key point about these rules is that they are based on assumptions that all those migrating from one country to another have identity documents confirming the nationality of their country of origin, a currently valid travel document, official permission to be in the country, proof of legal residence over the necessary period, and a fee of at least several hundred dollars (US$ 5,000 in the case of Tanzania). This is obviously moonshine for most migrants in poorer countries. Moreover, naturalisation is everywhere completely discretionary in law, and often perceived as being a personal favour given by the president. Scandals over corruption in naturalisation have convulsed the media in South Africa (the Gupta brothers naturalised by President Jacob Zuma) and Comoros (the scheme to sell ‘economic citizenship’ to be imposed on more than 40,000 stateless bidoon from the United Arab Emirates); and disquiet at abuse of naturalisation powers arises from time to time in many states.

The increased importance of naturalisation if birth in the territory gives no rights

Access to naturalisation is less important in states where the law provides for automatic attribution of nationality based on birth in the territory – whether for the first or second generation born in the country – and the procedural arrangements ensure that this right is respected in practice (which is far from given).  In francophone West Africa for example, all states – apart from Côte d’Ivoire – provide that the second generation born in the country are automatically attributed nationality at birth; tribunals have the power to issue a certificate of nationality confirming this status, including late registration of birth as a prior step to recognition of nationality. Unlike the countries of the Americas that provide ius soli attribution of citizenship at birth, the interim generation may still face problems in claiming nationality either of the country of the parents or of birth, but a family can change its affiliation over time; and this right is guaranteed by the courts, not dependent on executive goodwill.

In those states where there are no rights based on birth in the territory – or the right in law is not respected in practice – access to naturalisation is critical to enable change of nationality. It is also critical to avoid statelessness, as the second and third generations born in a territory lose any connection to a notional state ‘of origin’, and above all any hope of proving that connection in practice. Yet so long as existing procedures remain in place it is hard to see how naturalisation would ever be scaled to the level at which it would address the needs of the very large numbers of Africans who have no documents confirming citizenship of any state, and no possibility of satisfying the legal requirements, because they lack the necessary documents and money.

Some states have recognised this reality. The best known case is that of Tanzania, which, in a stop-start process from 2007 to 2016, facilitated naturalisation of more than 160,000 Burundian refugees resident in the country since the 1970s. Guinea Bissau, Liberia and Mali have also naturalised long-term refugees; while Côte d’Ivoire, Kenya and Namibia have undertaken outreach to groups of long-term migrants to facilitate acquisition of citizenship. But these programmes are rare and incomplete, and generally depend on agitation and assistance from civil society groups or facilitation by UNHCR.

Decentralisation: a radical solution – or a legal framework for existing practice?

What would unblock the naturalisation route for normal purposes? I propose a radical solution: decentralisation. The right to grant nationality to those who have not acquired it at birth should be given to a sub-national unit of government, whether local or regional according to the constitution of each state.

This proposal is less radical than it sounds: in practice, it is often what already happens. In countries where civil registration systems are weak – birth registration is on average less than 50 percent of under-fives across the African continent, and registration of other civil status events much lower – states have put in place other systems to decide if a person is entitled to an identity document recognising citizenship as an adult. These vary from country to country, but generally involve the screening of applicants on the basis of witness testimony, including support from traditional or community leaders. In Nigeria and Ethiopia, these systems are deeply embedded in the identity management systems, in the form of a ‘certificate of indigeneity’ or ‘kebele ID’ issued by local government authorities. In Kenya, applications for national identity cards made in border regions, or certain parts of Nairobi known to have large populations of foreign origin, are reviewed by ‘vetting committees’, made up of civil servants and security officials and selected community representatives. The procedure for late registration of birth by a court (jugement supplétif) and issue of nationality certificate in the francophone states also depends on witness testimony that the relevant facts that a person asserts are correct. In the end, all identity systems go back to this affirmation by others that a person is who they say they are, even if this is disguised in countries where civil registration has been close to 100 percent over several generations.

The problem with these procedures is that they can often be arbitrary. There are no laws adopted by parliaments establishing the rules for these local authority or vetting committee procedures; they are set up by ministerial regulation, departmental directive, or according to independent local understandings. Accordingly, the basis on which the decisions are made can vary greatly across one country, and have little rationality understood by informed observers. In Nigeria, for example, the question of ‘indigeneity’ has been a controversial and much debated one, ever since the concept of ‘indigenous community’ as the basis of citizenship was introduced in the 1979 constitution. Despite numerous efforts, no progress has been made towards adopting a law to provide a set of rules to govern its interpretation.  On the other hand, where procedures for nationality verification have a stronger legal foundation, as in the francophone tribunal-based procedure to issue a certificate of nationality, they are difficult to access. There are heavy costs in time and money to bring to a regional court perhaps half a dozen people needed as witnesses, who must spend hours or days queuing for a slot with the judge – only to be told that another witness or supporting document is also needed and they must all come back again.

The current procedures to verify identity are aimed at establishing who is already a citizen, rather than at granting citizenship. Yet the various committees or local government authorities may have little or no training in the law. Although this is, or should be, much less true of a procedure before a tribunal, those giving supporting testimony almost certainly have no such training. What is therefore going on in these individual application procedures is a decision about whether a person is sufficiently accepted by the relevant community to be accorded the right to belong as if they were born a citizen (even if that was not in fact the case, because of the restrictive nature of the law). They are often in effect also decentralised systems of naturalisation.

Switzerland is the country with the currently most decentralised naturalisation system in law. Federal law specifies only general minimum requirements, and applicants for citizenship are naturalised at municipal level under cantonal laws: municipalities are thus the most important level for ordinary naturalisations. This system has been heavily criticised, on the grounds that it permits high levels of discrimination on the basis of race and religion, and that there is a lack of clearly established local regulations. At the more ludicrous end of such obstacles, a Dutch woman was twice denied naturalisation by her local village council because she complained about cow bells (she eventually won the argument). Until 2003 municipalities could decide on individual naturalisations through votes in a referendum, a procedure that was stopped by the Federal Supreme Court. There are clearly risks in going this route, and a well-articulated vision of what it means to be a citizen is needed. Yet even in theoretically centralised systems, such as France, a degree of local discretion is observed.

Embracing multilevel citizenship

My proposal rests on the understanding that in states where central institutions have weak legitimacy and capacity, a form of multilevel citizenship is already in place, even where there is no distinct sub-polity recognised in law to have co-existent sovereignty with the national state. The procedures by which citizenship is already established thus need legal regulation to make the conditions transparent, their implementation more predictable, and their appeal possible. And they should include the explicit possibility of local naturalisation for those who are not currently citizens but whose credentials as community members are attested according to legally established rules. The proposal is not to add a local layer of approval to an application process that is finally authorised by the minister or president, a system that already exists in some countries; but that local decisions – overseen by courts – would be determinative of the national body of citizens.

My assumption is that distrust of naturalisation would reduce, and the numbers naturalised by such procedures would greatly increase. GLOBALCIT’s recent forum on urban citizenship highlighted the possibilities for local citizenship to open up participation and membership in ways that national citizenship could not. According to data collected by Afrobarometer (Round 5 of their surveys), based on opinion polling in 29 African states, an average of 62 percent of Africans think a person should have the right to become a citizen based on a contribution through living and working in the country. In no state was there a majority against (though in several the split for and against was quite even).

Of course, my assumption is also that the rules will be manipulated (just as the existing ones are), and that in places where conflict over land and resources are particularly acute there is a high level of risk that naturalisation procedures would be captured by only one side of such disputes. Protections against such abuses are needed; above all, transparent rules and low-cost access to independent adjudication mechanisms, including appeal to the normal courts. These protections are already needed but, in the absence of clear legal frameworks for the lowest level of citizenship administration, cannot effectively be provided.

Historically, the boundaries of membership in African states have been blurred by the many borders that cut through pre-colonial polities, and the reality that official identity documents have often not been necessary to operate as a member of society. But identification systems are in the process of radical change and reinforcement across the continent. The division between citizen and non-citizen is being made both more visible and more binary. Without a system to ease the path to naturalisation, to make the right to change nationality a reality, many Africans will find themselves newly stateless: excluded from citizenship where they live on the grounds that they are foreigners; but at the same unable to prove any connection to a country ‘of origin’.

I have focused on African states, where I have done most research. But my guess is that many of the problems will be similar in other regions of the global South. I hope for contributions that will tell us whether decentralising naturalisation might be a solution that allows post-colonial states to re-imagine their nationhood.