Last week states from around the world gathered to review South Africa on its human rights situation. This process is called the Universal Periodic Review (UPR) and all states are reviewed once every 5 years by their fellow states. The recommendations made by states are aimed at improving the human rights situation on the ground. Although every state has only 2 or 3 recommendations, this year 12 states chose to use their recommendations to address the lack of protection and prevention of stateless persons in South Africa.

Despite South Africa’s unique history of deprivation of nationality rights and precarious documentation of certain groups of people, South Africa has to date no mechanism in place to prevent statelessness, nor to protect those who are stateless. A stateless person is a person who ‘is not recognised as a national by any state under the operation of its laws’ according to the 1954 Convention on the Status of Stateless Persons. This international convention along with the 1961 Convention on the Reduction of Statelessness are aimed at providing basic rights to stateless persons and contain measures to prevent statelessness. However, South Africa has not signed either of these crucial treaties.

LHR client, Khumbulani, has been stateless in South Africa for 9 years. Being stateless also means being undocumented, which means that Khumbulani has not been able to work legally or to study for the last 9 years. Being stateless also means that Khumbulani is regularly arrested for not having papers. He is often detained for prolonged periods of time, because there is no country to deport him to. Because of the lack of a procedure to give status to stateless persons, Khumbulani has been unable to apply for recognition of his rights. LHR has launched proceedings in court which will hopefully grant him the rights of permanent residence and pave the way to citizenship. This case will be heard in the High Court of Pretoria on 19 June 2017. It has been 6 years since Khumbulani came to LHR’s door and after three court cases he is still waiting for his human rights to be recognised.

Statelessness is a particularly debilitating situation to be in. Not having the nationality of any country means that one does not belong anywhere, is not able to develop one’s potential anywhere, it basically means one does not have a future or security – nowhere to call home. It often takes its toll on the mental health of the affected person. Many suffer crippling anxiety and depression. For children it means not going to school which is incredibly harmful to the child.

LHR has been campaigning for the rights of stateless persons since 2011. In 2012, the Government of South Africa pledged to sign the statelessness conventions, but it hasn’t followed through on this pledge. Until South Africa commits to addressing statelessness in South Africa by signing the conventions and putting laws in place to reduce it, people like Khumbulani have little hope of a future.

This is why we welcome the 4 recommendations from Kenya, Belgium, Germany and Australia which encourage South Africa to sign and implement the Statelessness Conventions. Kenya has recently granted citizenship to the Makonde people who have lived in Kenya for 90 years, but were not until 2016 recognised as citizens of Kenya. Kenya has realised the importance of ending statelessness, particularly where it is generational, and is encouraging South Africa to do the same.

12 countries made recommendations to South Africa on the need to reform deficient and discriminatory birth registration laws. South Africa’s birth registration rate has increased significantly in the past ten years, but an amendment to the law in 2014 now excludes certain vulnerable groups of children from birth registration. Without a birth certificate it is impossible to prove one’s nationality and it is a crucial requirement for an application for citizenship in any country. For examples of such children see LHR’s publication Childhood Statelessness in South Africa. Children are the most vulnerable people in our society and the very first and most important protection we can offer them is legal existence before the law. 8 year old LHR client, Maria, has been stateless since birth. Despite a court order, the Department of Home Affairs has refused to recognise her citizenship. Nkateko is stateless because the Department of Home Affairs refuses to register his birth and recognise his citizenship through his South African father, because his mother is also stateless. His school will no longer admit him without a birth certificate after this semester. Many of the UPR recommendations request South Africa to bring its laws in line with the UN Convention of the Rights of the Child and The African Charter on the Rights and Welfare of the Child. The Committee on the Rights of the child has recently made similar recommendations to South Africa. See these recommendations here.

Lastly, one country (Hungary) made the recommendation that South Africa refrain from deprivation of citizenship through blocking of identity documents and establish a dedicated procedure to identify stateless persons. The Department of Home Affairs has recently been blocking the ID numbers of South African citizens whom they intend to investigate for fraud. However, these people are not given reasons for the block and their cases are not finalised for many years on end, effectively depriving them of nationality and making them stateless. LHR client Isaac has been blocked for 5 years, despite being able to prove his South African citizenship. Only once LHR brought his case before court was his nationality recognised, but not before he lost his job and his bank accounts were frozen.

According to UNHCR 10 million people are stateless worldwide. It is a global phenomenon which needs to be addressed by individual states and the international community as a whole. Recommendations from states to address this problem in South Africa may be the trigger to reforms which will restore human dignity to the stateless people of South Africa.

Click here for the draft report of the Working Group on the UPR of South Africa. Sign the petition to End Childhood Statelessness here:

Contact Liesl Muller for details: 011 339 1960 or liesl [at] lhr [dot] org [dot] za (Statelessness Project)

Annex - Summary of the recommendations:

The countries who made recommendations are: Albania, Australia, Belgium, Czech Republic, Germany, Hungary, Kenya, Liechtenstein, Mexico, Portugal, Serbia and Turkey.

4 recommendations on accession to the statelessness conventions, including one to also implement:

6.22. Accede to and implement the 1954 and 1961 Statelessness Conventions (Kenya);

6.21. Ratify the 1954 Convention relating to the Status of Stateless persons and the 1961 Convention on the Reduction of Statelessness (Belgium); (Germany);

6.23. Accede to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness (Australia); 

9 recommendations on birth registration, including two on right to nationality under the CRC:

6.237. Review and amend all legislation and regulations relevant to birth registration and nationality to ensure their full conformity with the Convention on the Rights of the Child (Albania);

6.238. Review and amend all legislation and regulations relevant to birth registration and nationality to ensure their full conformity with the Convention on the Rights of the Child (Liechtenstein);

6.222. Implement the Convention on the Rights of the Child through the harmonization of its national laws to ensure that the minimum age for marriage is established at 18 years for both girls and boys and remove barriers to birth registration (Kenya);

6.235. Ensure registration of all children at birth as well as delayed registration of children that have not been registered at birth (Czechia);

6.236. Further engage in facilitating administrative procedures for birth registration, especially for disadvantaged children coming from rural and poor areas (Serbia);

6.239. Review its relevant legislation and regulations on birth registration to ensure their full conformity with the Convention on the Rights of the Child (Portugal);

6.240. Ensure birth registration of all children born on South African territory, regardless of the immigration status or nationality of the parents (Mexico);

6.241. Amend legislation and regulations in order to ensure universal birth registration for children born in its territory (Turkey);

1 recommendation on deprivation of nationality / blocking of ID documents:

6.243. Refrain from deprivation of citizenship through blocking of identity documents and establish a dedicated procedure to identify stateless persons (Hungary).