Should Senegalese Local Authorities Get Competences to Naturalise Foreigners?
Ibrahima Kane (Open Society Foundations, Dakar)
Bronwen Manby proposes that a decentralisation of naturalisation formalities and procedures could contribute to a significant increase in the number of people able to acquire nationality in the countries of the global South. The radicalism of such an approach would not, in her view, be due to the addition of a local approval phase to an application process that is still centralised, but to the fact that local decisions – overseen by the courts – would become determinative of the national citizenry.
My response considers whether the administrative practice of naturalisation in a country as open politically, economically and socially as Senegal confirms or invalidates such an assertion. How has the well-known bureaucratic and centralised concept of the state inherited from the French colonial administration dealt with the issue of naturalisation? Was it an obstacle to naturalisation in a country where “a person is a person through another person” (Nit nit ay garabam)? I will analyse, through the evolution of national legislation on nationality since independence, the role played by central and decentralised authorities in the naturalisation process of foreigners, the way Senegalese society is managing diversity, and draw some lessons from 60 years of implementation of the Senegalese nationality law.
Senegalese nationality legislation
When Senegal gained international sovereignty in 1960, a large number of foreign nationals were living in the country, most of them African and French-speaking, as a result of the pivotal role played by this small territory during French colonial rule of West Africa (Afrique occidentale française, AOF). Dakar had been the administrative capital of the AOF, and the bulk of the educational, health and economic infrastructure was located there. Senegalese legislators decided to recognise this reality and the Code of Senegalese Nationality adopted in 1961 included special provisions to allow people from the former French colonies in sub-Saharan Africa and its neighbouring countries to acquire Senegalese nationality by option – although only during a very short three month period after entry into force of the law.
More generally, the 1961 Nationality Code provided for the automatic attribution of Senegalese nationality to a child born in the country if one parent (father or mother) was also born there, as well as to the child of a Senegalese father (or the child of a Senegalese mother, if born out of wedlock or the father was stateless). In the circumstances where most residents of Senegal were undocumented at the moment of independence, nationality based on two generations born in the country (“double ius soli”) was presumed fulfilled if a person had “continuously and publicly” behaved as a Senegalese citizen and “been treated as such by the Senegalese population and authorities” (the concept known as possession d’état de sénégalais).
The legislation has been amended on several occasions since 1961, most recently in 2013 to remove discriminatory treatment of women in the transmission of Senegalese nationality via marriage, descent, and adoption, and to remove discrimination based on birth in or out of wedlock. The requirements for naturalisation have remained the same, however, except to modify the provisions where naturalisation can be granted for “exceptional circumstances”, and to decrease to 16 years the minimum age for applying for naturalisation.
A person may apply for naturalisation after ten years of habitual residence in Senegal. In recognition of the reality of West African migration, there is no requirement for the residence to be legal.
On the surface naturalisation seems to be a purely administrative matter. Applications – which must be accompanied by document from the chef de quartier confirming factual residence, a health certificate, a certificate of taxation or non-taxation, a clean criminal record, and a certificate of good conduct and morals – are addressed to the Minister of Justice, who then conducts a three-level administrative investigation with the State Prosecutor (to check the applicant’s criminal record); with the Interior Ministry (to verify residence in the territory); and with the relevant governor (province) or prefect (département) (for more in-depth investigations to be carried out by the police or gendarmerie).
After this information is collected, the Ministry of Justice prepares a report on the basis of which the Minister of Justice issues a naturalisation decree (which is unusual among francophone West African countries, where it is mostly the president who does so), on the basis of which the recipient can apply for a certificate of nationality issued by the tribunal of his or her place of residence. If the naturalised person was not born in Senegal, he/she must be registered by the Senegalese civil registry, enabling access to Senegalese administrative documents such as an identity card or passport. This ultimate phase of the naturalisation procedure enables the local administration to detect cases of naturalisation fraud.[1]
Officially, only about 14,000 foreigners have been naturalised through this process since independence.[2] This figure does not, however, reflect the reality of alternative forms of “naturalisation” in the country, which can take more twisted paths.
Civil registration as an alternative path to citizenship
A number of foreigners have taken advantage of the permeability of Senegalese civil registration to obtain civil status documents from local authorities, enabling them to get recognition of Senegalese nationality without going through the formal naturalisation procedures.
In Senegal, decentralised local government authorities are generally responsible for registration of civil status events, such as birth and marriage. These documents are then the basis for acquisition of a national identity card, the most important identity document. Where birth registration is not carried out in time, however, the judiciary also plays an important role in the recognition of an existing nationality. The tribunals can adjudicate whether a person has Senegalese nationality, including a person without documents on the basis of possession d’état, and issue a “certificate of nationality” that is proof in case any state or other authority questions a person’s status. The tribunals can also authorise late registration of birth (through a jugement supplétif).
Thus, a Civil Registrar “accomplice” to a foreigner may issue a certificate of non-registration of birth; based on this certificate the person can apply to the Tribunal de Grande Instance (the court of first instance in the Senegalese court system) for authorisation of late registration of birth. The court would carry out an investigation, following which the judge would then decide whether or not to authorise the registration of the person. But the social realities (high levels of corruption, ethnic solidarity, etc.) are such that an inquiry may not strictly apply the law, and that these practices are accepted by the local population.
In this way, some communities established in Senegal, such as the Bambara (originating in Mali), have managed, over time, to change their patronyms to those of the Wolof and to access civil registration under the matching names. Thus, in some regions of the country, the Traoré and the Dembélé have become Diop, the Sissoko have become Gueye, the Diarra have become Ndiaye, the Coulibaly have become Fall, and the Diakité have become Ba. Though this process is not legal “naturalisation”, it fulfils the same function in integrating long-term migrants both into the local community and the national population register. Recourse to traditional Senegalese names also prevents them from administrative hassles during the replacement of administrative documents such as identity cards and passports.
Political leaders in the regions also use these procedures to expand the ranks of their supporters, particularly during the renewal of voter registration preceding national elections. Both the Parti Socialiste (PS) and the Parti Democratique Senegalais (PDS) were accused, when they were in power, of providing Senegalese identity cards to members of the Malian, Mauritanian and Guinean communities to allow them to vote in national elections.
Integration in the country of Teranga
The Senegalese nationality legislation has contributed to making Senegal the country of Teranga (“hospitality” in Wolof), known for its tolerance in welcoming foreigners and the relative political and economic stability of the country.
Almost all the foreign population that has settled in Senegal since the colonial period has originated from neighbouring countries, or from other states within the Economic Community of West African States (ECOWAS). Two thirds of all foreigners originate from Gambia, Guinea, Guinea Bissau and Mali. They are mainly concentrated in the region where the capital of Senegal, Dakar, is located, and in the regions of Ziguinchor and Kolda, in the south of the country.[3]
The linguistic and religious affinities that exist among people originating from today’s Gambia, Mali, Guinea, Mauritania, and, to a lesser extent, Burkina Faso, and those from Senegal, mean that this population of foreign origin shares with the Senegalese a cultural and historical heritage and a framework of economic cooperation and political integration that have been the cement for harmonious cohabitation among the different groups. Many members of these different foreign communities also belong to the Sufi Muslim fraternities of Senegal (the Tidjanes, the Mourides and the Khadres) integrating them within religious solidarity networks and providing the protection of the country’s large religious families, regardless of their origin or nationality.
The Senegalese authorities have also welcomed the persecuted populations of the region, especially from Guinea and Mauritania. From the 1970s, the dictatorial regime established by the first president of Guinea, Sékou Toure, and the economic disaster it caused, made thousands of Guineans, particularly members of the Peulh (Fulani) community, flee to Senegal. This group is now a remarkable example of the integration of a foreign community established in Senegal, both spatially, economically, socially and culturally.[4]
Senegal’s membership of ECOWAS, whose regional citizenship allows free movement of people and goods, also reduces the number of irregular migrants, as well as registered refugees and asylum seekers in the country.
Possible approaches to the involvement of local government in the naturalisation of foreigners
These close affinities facilitate the acquisition of nationality by the routes described above: acquisition that could be described as fraud, but also as a practical and accepted route to the gradual integration of immigrants and their descendants. In this way, the local Senegalese administration is already participating in the “naturalisation” process of integrating foreigners who have chosen to live permanently in Senegal. Could this role be strengthened and made official, to reinforce the inclusion of foreigners in the social, political and economic life of their adopted country?
The Senegalese authorities inherited a centralised unitary state. For the past 20 years there has been a policy of decentralisation, in order to “involve and empower people, and promote the emergence of a local elite, and consolidate representative democracy and citizen participation in defining policies affecting their living environment”.[5] In practice, however, the process has rather strengthened central control over local political authorities. and contributed to fragmentation of the political opposition. This is visible especially in the large cities where borough municipalities have been created, leading to the establishment of new political constituencies more than to the strengthening of local government powers.
This sort of decentralisation, “more concerned with the texts than with reality, above all with the capacity or not of local authorities to manage themselves and to invest”,[6] is unlikely to assist Senegalese local authorities in handling problems as politically sensitive as the naturalisation of foreigners.
The adaptation of existing civil registration procedures to integrate foreigners has, however, demonstrated that municipalities could contribute to the credibility of the naturalisation process. Rather than concentrating the investigations of a person’s suitability for naturalisation in the hands of an administration controlled by the central government, it could be possible to enable the local administration to carry out enquiries concerning the integration of individuals into Senegalese society. Such an approach would help to minimise cases of fraud – that is, applications by those who are not in fact integrated into Senegalese communities – and even encourage cities to develop genuine diversity management policies within the municipal territory.
This would motivate the Senegalese state to ensure, within the framework of its national migration policy, that local authorities are given a significant role in the handling of the admission, residency and the integration of foreigners in the country. The example of the large and integrated Guinean community established in the Senegalese capital Dakar could serve as a stimulus for other local authorities and the state to mutualise means and skills for the success of any migration policy in Senegal. This could even result in Senegalese cities becoming players in municipal diplomacy, providing opportunities for twinning between African cities and consequently contributing to the African integration process. Their role at present is limited to encouraging foreigners established in Senegal to participate, through their associations, in the animation of the cultural life of the city, in the reception of heads of state visiting Senegal or even in the political mobilisations around elections in which they are not themselves enfranchised.
There are thousands of immigrants with Senegalese nationality documents that have been fraudulently obtained but are an acknowledgment of the social reality of the country. This situation could be avoided if, for example, the municipality of Dakar had the opportunity to identify and formally nominate for naturalisation Guineans and other immigrants who have made a significant contribution to the reputation of the city, or who would be stateless if they did not have Senegalese nationality. It would result in better management of Senegalese civil registry and of the diversity in the capital, in addition to improving its finances. It would even allow for the use of procedures established by the new local government code enabling cooperation among local government authorities[7] to encourage several communes in a given region to address issues of statelessness and integration of foreigners in a pragmatic way.
This description of the Senegalese reality seems to support Bronwen Manby’s point when she asserts the importance of decentralisation in the naturalisation process. It confirms what a recent study on migration in Southern Africa has stated: that host communities, including municipalities “should be counted as important actors in the governance of migration and human mobility”,[8] meaning in the integration of foreigners in the local communities.
Decentralisation, contrary to what Alfred Babo suggests in his contribution on Cote d’Ivoire, could greatly contribute to reducing the level of fraud and increasing access to nationality, by enhancing the reliability of civil registration and creating the conditions for greater integration of foreigners into the local social fabric.
The history of French colonisation in West Africa attests that municipalities played an important role in the transition from the status of indigène (“native”) to that of French citizen, through the registration of births of indigenous children in the civil registry, which was the first step towards their acceptance in the colonial school and, later on, the acquisition of French citizenship rights.[9]
Naturalisation is not a guarantee of integration into a given community. It is the first step in a more or less lengthy process leading to the recognition of belonging to the community. The municipality is the ideal actor that can quickly contribute to the achievement of this objective, if it is given the means to do so.
[1] In 2019, a Ministry of Justice official was charged with fraudulently selling Senegalese nationality to Lebanese and Syrian citizens based in Senegal. “Nationalité sénégalaise vendue à 1 million : Comment le scandale a été découvert”, Seneweb News, 17 August, 2019
[2] It is quite difficult to provide an exact estimate of the numbers of naturalised persons in Senegal simply because the books are not well maintained in the administration. The figures above were obtained from the Ministry of Justice and the National Civic Registry Centre.
[3] Agence nationale de la statistique et de la démographie (ANSD), Migration au Sénégal, Profil national 2018, ANSD and International Organisation for Migration, 2018,pp.10-11 https://www.ansd.sn/ressources/publications/ANSD-OIM%20Profil%20Migratoire%20du%20Senegal_2018.pdf.
[4] Guillaume Lefebvre “La communauté guinéenne de Dakar, une intégration réussie?” in Catherine Coquery-Vidrovitch, Odile Goerg, Issiaka Mande, and Faranirina Rajaonah (eds) Etre étranger et migrant en Afrique au XXe siècle: Enjeux identitaires et modes d’insertion, Volume II : Dynamiques migratoires, modalités d’insertion urbaine et jeux d’acteurs. Éditions l’Harmattan, 2003, p. 144. https://www.editions-harmattan.fr/index.asp?navig=catalogue&obj=livre&no=15683
[5] Youssoupha SANE “La décentralisation au Sénégal, ou comment réformer pour mieux maintenir le statu quo” in Cybergeo : European Journal of Geography, 2016, page 799. https://doi.org/10.4000/cybergeo.27845
[6] Ibid.
[7] Loi n° 2013-10 du 28 décembre 2013 portant Code général des Collectivités locales, Articles 16, 279 and 283.
[8] Loren B Landau and others, Free and safe movement in Southern Africa by the African Centre for Migration and Society, 2018, page 33. https://osisa.org/product/free-safe-movement-in-southern-africa/
[9] See Iba Der THIAM, La Révolution de 1914 au Sénégal ou l’élection au Palais Bourbon du Député noir Blaise DIAGNE, Paris : L’Harmattan, 2014. https://www.editions-harmattan.fr/index.asp?navig=catalogue&obj=livre&no=44646