Recent case law on statelessness in South Africa – Mulowayi v Minister for Home Affairs

The current issue of the excellent Statelessness & Citizenship Review is out now.  I was delighted to be asked to contribute a case note to this year’s volume.  Mulowayi v Minister of Home Affairs is an appeal to the South African Constitutional Court from a decision of the High Court of South Africa dealing with the validity of a regulation amending the South African Citizenship Act 2010 ¹.  You can take a look at the full case note here.

The legal issue to be determined by the Constitutional Court was on a narrow technical point.  The reason I chose to write about this case is because it touches on wider issues arising from South Africa’s citizenship regime — especially as they affect stateless people.

 

The statelessness question in Mulowayi 

In this case, the third applicant, Gaddiel, who is a child, was born in South Africa without a nationality.  He is stateless.  Gaddiel should have been substantively protected as a stateless person by provisions in South Africa’s Citizenship Act ².  The Act grants citizenship to a person who is not a citizen or national of any other country or has no right to such citizenship and who has been registered in accordance with relevant South African laws.

However, this substantive protection is only attainable if Gaddiel undertakes further litigation challenging the failure of the South African government to enact a process for Gaddiel to make an application under the Citizenship Act.  The lack of an application process under the statelessness provisions of the Citizenship Act had already been raised in an earlier case, Minister of Home Affairs v DGLR [2016] ³.  Despite the decision in DGLR, the Department of Home Affairs has taken no steps to remedy the omission.

The story of the Mulowayi family, and especially their son, Gaddiel, demonstrates the challenges so many stateless people face navigating complex administrative processes just to get access to basic rights that should already be available to them.

 

Statelessness in South Africa

I have written about the challenges faced by children in South Africa before arguing, as many rights groups have done, that legal identity should not be conditional on the status of the child’s parents ⁴.  The risk of statelessness in South Africa, especially to children, increased when South African authorities sought to limit those eligible to be registered at birth.  Children whose parents are foreign nationals and have no right to permanent residence in South Africa could not have their birth registered meaning they would struggle to establish their legal identity ⁵.  Denying children a birth certificate in a state where birth registration is so closely link to nationality is a serious problem.   It will impact not only those children being denied a certificate today, but future generations too ⁶.

Lack of a legal identity is one reason why so many children are now at risk of statelessness.  Another, aptly illustrated by Gaddiel Mulowayi’s case, is the lack of administrative process and administrative justice that allows those who are stateless to rely on existing laws offering those who are stateless, or at risk of statelessness, much needed protection. Gaddiel should be able to rely on South Africa’s well drafted and international law compliant provisions to acquire South African citizenship.  Yet the process by which he can do that has not been put in place.  Liesl Miller, a South African attorney who heads up the statelessness project at Lawyers for Human Rights sums up the problem of statelessness in South Africa:

“We have wonderful laws and our laws are well written and in line with international laws but we don’t implement them.”

 

More from the Statelessness & Citizenship Review

My case note in this volume of the Statelessness & Citizenship Review is one of three.  Eric Fripp has written about the England and Wales Court of Appeal’s decision on the depravation of citizenship of two British nationals.  I have written previously about rendering foreign nationals fighters stateless through deprivation of their citizenship here.  Bronwen Manby and Clement Bernardo Mubanga examined a recent decision by the African Court of Human Rights, Robert John Penessis v United Republic of Tanzania ⁷, challenging the arbitrary deprivation of the applicant’s nationality.

As well as the case notes there are fascinating articles on a wide range of statelessness issues from statelessness in the European Union, to looking at statelessness from two intersectional view points: feminism and sexual citizenship and legal theory.  This volume focuses not only on the substantive issues, but also the procedural.  The creation of a bespoke statelessness determination procedure for Nigeria and Assam’s Foreigner Tribunals are examined in detail.

As the case of Mulowayi demonstrates, procedural rights and administrative justice are the gateway to an individual enjoying their substantive rights.  Both issues, on the importance of statelessness determination procedures and on the events in Assam following the updating of the National Register of Citizenship have been covered on the Torn Identity blog before.  See my blogs on statelessness determination procedures here and here.  On the National Register in Assam and the risk of statelessness now faced by more than 4 million people in the Indian province, see here and here.  Discussion of both issues is on point and will need close monitoring for some time to come ⁸.