Bronwen Manby (London School of Economics)
On 17 February 2024, the Assembly of Heads of State and Government of the African Union (AU) formally adopted a 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. This resolution marks the end point of an initiative that began with a meeting convened in Kampala, Uganda in 2007, which called for a new continental legal instrument to protect the right to a nationality. The meeting marked the beginning of a long-process of coalition-building among actors with different constituencies and skill-sets in support of this objective.
The 2007 meeting was convened by Chidi Odinkalu of the Open Society Justice Initiative (OSJI), Tajudeen Abdul-Raheem of the Pan-African Movement, and Dismas Nkunda of the International Refugee Rights Initiative. The high-level participants, including the Legal Counsel of the AU Commission (the secretariat for the AU political organs), as well as representatives of the African Commission on Human and Peoples’ Rights (ACmHPR), and scholars and civil society groups, debated the state of citizenship in Africa. Among compelling evidence of the need for a new legal instrument were accounts of the complaints of mass expulsion of alleged non-citizens and of arbitrary deprivation and denial of nationality brought to the African Commission on Human and Peoples’ Rights – among them the cases of former President Kenneth Kaunda of Zambia and presidential candidate John Modise of Botswana. In the absence of a specific provision on the right to a nationality in the African Charter on Human and Peoples’ Rights itself, the African Commission was obliged to rely on other rights within the Charter. The first outline of a draft protocol was prepared and presented to the meeting by Chaloka Beyani of the London School of Economics, later UN Special Rapporteur on the Rights of Internally Displaced Persons (IDPs), and an adviser to the AU for the drafting and adoption of the African Convention for the Protection and Assistance of IDPs.
OSJI commissioned research in a dozen African states on discrimination in access to citizenship, and hosted a series of civil society meetings to discuss these national reports and the normative frameworks, resulting in two detailed studies of the problems of citizenship discrimination in Africa authored by myself: on the comparative legal provisions of all 54 states, including a comprehensive set of recommendations on the content of national citizenship laws, published by the Open Society Foundations (first edition 2009; the most recent 3rd edition 2016), and a set of case studies of the manipulation of citizenship law for political purposes in different states, published by Zed Books. These were launched at an event also held in Kampala in 2009, in the margins of the AU summit that adopted the AU Convention on IDPs.
The process of adopting the protocol
A series of meetings held in the margins of sessions of the ACmHPR, and presentations by scholars, activists and stateless persons in public and private sessions, culminated in the first major milestone towards the adoption of the protocol: a 2013 resolution of the ACmHPR on the right to a nationality. The resolution restated the principle already established by the Commission’s jurisprudence: that Article 5 of the African Charter, on the right to dignity and recognition of legal status, included nationality as part of legal status. The resolution decided to prepare a study on the right to a nationality in Africa, a task put under the leadership of the Commission’s Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, Maya Sahli Fadel of Algeria. A year later, the study on The Right to Nationality in Africa, authored by Ibrahima Kane, also of the Open Society Foundations, was adopted by the African Commission, which assigned to the Special Rapporteur the task of leading the process to draft a Protocol to the African Charter on the right to a nationality.
Early on, the strategic decision was taken by Commissioner Sahli Fadel to involve the political organs of the AU. A meeting held in May 2013 in Addis Ababa with the director of the AU Commission’s Department of Political Affairs, Khabele Matlosa, agreed on a ‘roadmap’ for the adoption of a protocol. This process included the formal launch of the African Commission’s study on the right to a nationality in the margins of the January 2015 AU summit, with high-level participation, including President Alassane Ouattara of Côte d’Ivoire (whose case of arbitrary denial of nationality had been heard by the ACmHPR), as well as Chair of the AU Commission Nkosazana Dlamini-Zuma, and UNHCR High Commissioner António Guterres. The ACmHPR proceeded to convene a series of experts’ meetings to finalise the text of the draft Protocol, and adopted a draft text later in 2015. The text was discussed and revised by the AU Commission on International Law in October 2015. In July 2016, the AU Executive Council of Ministers welcomed the development of this text by the African Commission and launched the political process of discussion by representatives of states. The draft text was first examined by the AU ‘specialised technical committee’ (STC) on migration, refugees and IDPs, in four meetings of state experts in 2017 and 2018, at the end of which the text was formally adopted by ministers and referred to the STC on justice and legal affairs which has to approve all legal instruments. After a COVID-caused interruption, and protests from some (mainly North African) states that a single meeting of the STC justice and legal affairs was insufficient to debate the text, the protocol was finally approved by ministers at an extraordinary meeting of the STC on justice and legal affairs in December 2023, and submitted to the February 2024 summit.
Key provisions of the text
So, what are the key provisions of this new protocol, on the ‘specific aspects’ of statelessness and the right to a nationality in Africa?
Perhaps the main advances on existing African and international law on the right to a nationality are provisions on:
- the right to a nationality for the second generation born in a country – the rule of double ius soli;
- the resolution of doubtful nationality in the case of nomadic and cross-border communities; and
- extensive due process protections, including a presumption that it is for the person challenging the status of an identity document issued by the competent authorities of a state to prove that it was incorrectly issued.
Innovative provisions that were proposed but not adopted included an expanded definition of ‘stateless person’; almost all the substantive content of an article on acquisition of nationality by naturalisation (although a provision requiring facilitated acquisition by stateless persons was retained); the explicit requirement to permit dual nationality for adults (although this is implied by the provisions on loss and deprivation of nationality); the exemption of stateless persons from a requirement of ‘legal’ residence in order to naturalise; and the establishment of specific procedures for determination of nationality in case of doubt. Throughout, the protocol has been diluted with language stating that the most substantive articles are ‘in accordance with national law’ or similar language – even in case of the main article on non-discrimination, which is central to the AU agenda in other respects. In addition, there was a final attempt from Egypt to restrict the ability of the African Commission on Human and Peoples’ Rights to interpret the protocol – though of doubtful relevance considering the powers established by the African Charter itself.
The role of different states and regional groups
The passage of the protocol was significantly assisted by the fortunate coincidence that it entered the political processes of the African Union just as UNHCR’s #IBELONG campaign to end statelessness was launched in 2014. UNHCR convened a series of meetings in collaboration with the various regional organisations, starting with the Economic Community of West African States (ECOWAS), the most favourable political context for action on nationality, thanks to the long-standing regional treaty on free movement, and the retention by most of the former French territories of the rule of double ius soli in national laws. In 2015, ECOWAS adopted the Abidjan Declaration on the eradication of statelessness, followed two years later by a plan of action – and a number of national action plans in the 15 ECOWAS member states. Similar declarations were adopted by the International Conference on the Great Lakes Region (ICGLR), and the Economic and Monetary Community of Central Africa (CEMAC), much weaker political and economic groupings, but nonetheless reflecting an openness to action on the issues. ECOWAS representatives were the most important states supporting the protocol during the drafting process – a role weakened at the final meeting of the STC justice and legal affairs by the suspension of several member states from the African Union because of military coups.
East and Southern Africa were more resistant both to supporting UNHCR’s campaign, and to the need for a protocol. These regions are dominated by former British territories, which have inherited the unfortunate British tradition of executive dominance in matters of citizenship. Nonetheless, early opposition by Zimbabwe and Kenya, in particular, was significantly moderated as the protocol moved from the STC on migration to the STC on justice and legal affairs. The North African states were more strongly opposed – thanks to nervousness about the right to nationality of African migrants and their children born in their territories, as well as strongly descent-based legal regimes. Egypt and Libya were the most vocal opponents till the end, states in which discrimination based on race, sex and religion is embedded in national citizenship administration and family law – even though Egypt has followed Algeria, Morocco, and Tunisia in reducing discrimination in its substantive nationality law. North African opposition to the protocol was, however, hampered by the long-standing feud between Algeria and Morocco over Western Sahara – while the Sahrawi Arab Democratic Republic itself was represented in the process and a supporter of the text.
The importance of the protocol
The protocol represents the formal recognition of African states of the need to overcome the challenges related to recognition of citizenship created by the colonial heritage of the continent. The process shows there are possibilities for coalition-building for good, even in a world in which such victories are hard to achieve. Throughout the deliberations of the ACmHPR, and even more strikingly among state representatives in the debates before the AU specialised technical committees, there was widespread acknowledgement of a pan-African spirit of responsibility by those cast adrift from political membership by a difficult history. There is, of course, a long way from formal adoption of a continental treaty to resolution of the issues on the ground, but a common standard provides a foundation for advocacy for would-be citizens across the continent. The adoption of the protocol thus marks the beginning of a new project for its ratification, entry into force and implementation.
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The final text of the draft protocol is not yet available online. It will eventually be available at the website of the African Union, with the resolutions of the 37th summit. All public documents are also available – with many other resources – at the website http://citizenshiprightsafrica.org/.