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Who Belongs? Statelessness and Nationality in West Africa

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Who Belongs? Statelessness and Nationality in West Africa

Many Burkinabè women work in the gold mines of Côte D'Ivoire but do not have proof of nationality, increasing their risk of statelessness. (Photo: H. Caux/UNHCR)

At least 10 million people around the world are stateless, according to estimates from the United Nations High Commissioner for Refugees (UNHCR), but the real number may be much higher. Statelessness severely limits a person’s human rights, including access to basic services such as health care and education. Often deemed to be illegally present in their country of birth and residence—even if their parents were also born there—stateless individuals may be unable to work in the formal economy, open a bank account, or buy land. A person without identity documents, usually dependent on nationality, is unable to cross international borders through regular channels. The right to vote or to run for office in national elections is restricted to citizens in most countries. As requirements to show official identification multiply, a person without a recognized nationality is increasingly unable to function in the modern world.

The true extent of statelessness is concealed by the difficulty of distinguishing between a person who is stateless and a person who lacks identity documents. While UNHCR’s estimates of stateless populations are highest for Asia, more people are undocumented in sub-Saharan Africa. Birth registration, the foundation for other forms of identification, is on average below 50 percent across the region.

Although those lacking documents are generally among the poorest and most marginalized, an undocumented person who is a member of the dominant ethnic or religious group and comes from a settled community and stable family is far less likely to be refused when applying for a nationality document. Those most at risk of statelessness are members of social groups facing discrimination, migrants (especially irregular migrants) and their descendants, refugees, and children born out of wedlock, separated from their parents, or vulnerable in other ways. They are left stateless not only by discrimination in practice and weak administrative systems, but also by laws that provide very limited rights based on birth in the territory and that restrict transmission of nationality from parent to child on the basis of gender or other grounds.

In Africa, those most affected by statelessness include the descendants of colonial-era migrants, nomadic pastoralists, populations divided by arbitrary colonial borders or affected by more recent transfers of sovereignty, and those displaced by conflict. Vulnerable children are always at additional risk. Continental institutions have begun to recognize the extent of the problem, with decisions and resolutions affirming the right to a nationality by the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child; the political institutions of the African Union (AU) have also made commitments. A major push to improve civil registration in Africa, one of the main administrative means to reduce the risk of statelessness, has been backed by both AU and UN agencies.

Box 1. ECOWAS Member States

The Economic Community of West African States was founded in 1975 and has 15 members: Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo (Mauritania left in 2000 as part of a long-term alignment with the Arab states).

At the regional level, West Africa has moved furthest to address statelessness, as a result of advocacy from UNHCR and the existing policies and institutional frameworks of the Economic Community of West African States (ECOWAS). In February 2015, the 15 ECOWAS Member States adopted the Abidjan Declaration on the Eradication of Statelessness, agreeing “to prevent and reduce statelessness by reforming constitutional, legislative and institutional regimes related to nationality in order to include appropriate safeguards against statelessness, in particular to ensure that every child acquires a nationality at birth and that all foundlings are considered nationals of the State in which they are found.” Of course, the declaration is just that—a declaration—and does not necessarily mean the promised action will take place. Nonetheless, it is a remarkable recognition at the regional level that the question of nationality in Africa needs to be addressed.

Based on a study commissioned by UNHCR and the International Organization for Migration (IOM) and presented at the February 2015 Abidjan conference, this article explores the factors contributing to statelessness in West Africa, including the region’s colonial and migration history and nationality laws, as well as the social groups particularly at risk. The article then examines the ECOWAS framework, steps taken to implement the Abidjan Declaration, and the way forward to eradicating statelessness in West Africa.

Migration and Nationality in West African History

The West African Sahel—the “coast” of the Sahara—has long been a zone of migration. Long-distance traders historically controlled the trans-Saharan routes, and migratory pastoralism was and remains the livelihood of many. The spread of Islam and the succession of great precolonial empires—Ghana, Mali, Songhai, Kanem-Burnu—both provoked and facilitated migration. With the late 15th century arrival of the first European ships along the sea coasts, migration for trade rapidly increased, all too soon degenerating into slaving. Once European political control was established in the late 19th century, migration—forced and voluntary—increased again within the region, especially within common colonial boundaries.

Figure 1. Map of Former Colonial West Africa

Source: “Map of Africa with Countries,” FreeVectorMaps, available online.

The majority of the territory of West Africa was colonized by France and governed as the single unit of French West Africa (Afrique occidentale française, AOF), with several adjustments to administrative borders before the shape of today’s independent states—Benin, Burkina Faso (Haute Volta), Côte d’Ivoire, Guinea, Mali, Mauritania, Niger, and Senegal—emerged. There were four British territories, of which Nigeria was by far the largest, joined by The Gambia, Ghana (Gold Coast), and Sierra Leone. Portugal annexed one mainland territory, Guinea-Bissau, as well as the islands of Cape Verde; Liberia was founded by black American settlers; and Togo, originally German, was divided between Britain and France by League of Nations mandate following World War I. Under international law at the time, people living in these territories were deemed to acquire the nationality of the colonizing state, but that state retained the absolute right to discriminate among different categories of its nationals—notably on racial or ethnic, as well as gendered, grounds.

Following independence for most territories in Africa by the early 1960s, the decision of the newly formed Organization of African Unity to respect colonial borders committed the continent to the task of molding these units into political communities, including the central question of determining who belonged where.

Nationality Laws Today

At independence, African states adopted nationality laws based on models from the former colonial powers. The new constitutions of the four former British colonies of West Africa established a jus soli (law of the soil) rule for those born after independence: a person born in the territory would automatically become a citizen (with very limited exceptions). Those born abroad acquired nationality based on descent through their father only. The former French and Portuguese colonies also had a strong, though not absolute, element of jus soli, as well as providing for transmission of nationality from father to child. Most laws provided that a person born in the country of a parent (father or mother) also born there was attributed nationality at birth (the rule known as double jus soli), and that a person born in the territory who remained resident until adulthood acquired nationality automatically or on application.

In Liberia, the 1822 Constitution restricted citizenship to “persons of color,” a provision that remains in place, though later reformulated to “negroes.” A more detailed nationality law was adopted in 1956, and provided for jus soli citizenship for “persons of Negro descent.”

Box 2. Definitions

Citizenship versus Nationality

The words “citizenship” and “nationality” are used interchangeably in this article. West African countries in which English is the official language more commonly use citizenship, while the former French and Portuguese territories use the translation of nationality. International treaties usually refer to nationality.

Who is a Stateless Person?

Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as: “a person who is not considered as a national by any State under the operation of its law.”

Guidelines issued in 2012 by the United Nations High Commissioner for Refugees (UNHCR) on this definition note that, for any particular state, “establishing whether an individual is not considered as a national under the operation of its law … is a mixed question of fact and law,” based both on what the legal text says and the way in which the state concerned interprets the law in practice.

Since independence, West Africa, along with the rest of the continent (and indeed the world), has seen two particularly strong trends in nationality law: a reduction or removal of gender discrimination, allowing women to pass nationality to their children and spouses on increasingly equal terms with men; and acceptance of dual nationality. In nine of 15 ECOWAS countries, women and men now have such equal rights, and dual nationality is generally prohibited only in Liberia.

There has also been a trend to limit access to nationality based on birth in the country. In common with many Commonwealth countries elsewhere in Africa, each of the four former British territories has removed the right to nationality based purely on birth in the territory (as indeed the United Kingdom did in 1981). Sierra Leone also introduced a racial provision similar to that of Liberia, restricting citizenship attributed at birth to individuals of “negro-African descent” and establishing a double jus soli rule for those fulfilling this criterion.

Côte d’Ivoire and Niger have also reduced rights based on birth in the territory; although Niger, like the other former French territories, retains a double jus soli rule, which Côte d’Ivoire never adopted. Nigeria, The Gambia, and Côte d’Ivoire now provide no rights based on place of birth, not even the minimum provided by the 1961 Convention on the Reduction of Statelessness for children who would otherwise be stateless, nor the presumption in favor of an abandoned child of unknown parents.

Who Is Stateless in West Africa?

It is impossible to provide a meaningful statistic for the number of stateless people in West Africa. The figures published by UNHCR include 700,000 stateless persons in Côte d’Ivoire, a single person recorded in Liberia, and unknown numbers for the rest of the region, with an estimate of around 1 million total. But even the figure of 700,000 for Côte d’Ivoire is a guess, not based on any survey.

There are many millions of people living in West Africa who are clearly West African but who have not been issued nationality documentation by any one state, creating the challenge of providing statistics. Such individuals are not necessarily stateless, but those who are in this situation and fall through one of many gaps in the law—or belong to a social group facing discrimination in other spheres—are certainly at higher risk of statelessness. It is only in the effort of seeking documents that statelessness becomes apparent. Among the undocumented and partially documented there is an undoubtedly large number of people who would fit the definition of stateless person under international law.

If there are onerous requirements or costs attached to obtaining proof of nationality, or discrimination makes proof unobtainable in practice, then the fact that a person fulfills the legal conditions for citizenship may count for little. The weakness of civil registration systems in West Africa means that questions of proof can be highly discretionary: In Liberia, only 4 percent of births are registered; the rate is 24 percent in Guinea-Bissau, and less than 50 percent in Niger and Nigeria. Fees, official and unofficial, for nationality documents prevent many people from obtaining proof of a status they should in theory hold. The highly discretionary and inaccessible nature of naturalization means it is near-impossible to acquire nationality based on long-term residence: statistics are hard to come by, but it appears a maximum of a few hundred naturalize annually in any West African state. The gaps in the rules on attribution of nationality at birth thus become even more salient.

Migrants and their Descendants

The largest number of people at risk of statelessness in West Africa are the descendants of migrants who no longer live in their countries or communities “of origin,” particularly those who migrated before independence. More recent migrants are generally not stateless, since, even if lacking documents, they retain knowledge of their origin country that would usually enable them to re-establish that nationality with the relevant authorities if need be. However, where rights to nationality based on birth in the territory are weak and birth registration does not confirm a connection enabling a child to claim the citizenship of a parent, statelessness becomes more likely for each generation born outside a notional country of ancestral nationality.

Among the migrants most at risk of statelessness are refugees and their children, especially where the cessation clauses of the 1951 Refugee Convention have been invoked. In West Africa, those who fled civil wars in Sierra Leone and Liberia are no longer considered refugees by UNHCR or host-country governments. Very few former refugees have been able to access naturalization in host countries. Thus, while those who have remained in other West African countries would have rights based on their status as ECOWAS citizens, they need confirmation of Liberian or Sierra Leonean nationality to stay where they are, as much as to repatriate. Yet during vetting procedures by Liberian authorities in 2013, some 1,000 formerly recognized refugees were denied Liberian passports, largely on the basis that they did not have enough knowledge of Liberia. Without documents, individuals such as these are left stranded, often unable to access services where they live, and subject to constant police harassment for lack of proper documents.

Box 3. Statelessness in Côte d’Ivoire

During the colonial period, French authorities forcibly imported many tens of thousands of laborers from elsewhere in French West Africa to work on plantations and infrastructure projects in Côte d’Ivoire. Large numbers of migrant workers also came of their own initiative both before and after independence.

The Ivorian nationality code adopted at independence attributed nationality at birth to a child born in Côte d’Ivoire, unless both parents were “foreigners” (étrangers). There was, however, no definition of foreigner. The law also allowed children born in Côte d’Ivoire of foreign parents to apply for Ivorian nationality at majority; only two people accessed this provision before it was repealed in 1972. The lack of clarity continued in part because for many years independence leader President Félix Houphouët Boigny maintained a very liberal regime for the treatment of foreigners, including allowing the right to vote and utilize land.

In the mid-1990s, during an economic recession and following Houphouët Boigny’s death, Ivorian political leaders adopted a series of measures to deny nationality documents to those who were perceived to be of foreign origin. The discriminatory policies that followed, including evictions, job dismissals, and the stripping of documents and rights associated with nationality from hundreds of thousands of people, contributed to the electoral crisis of 2000 and the civil war that broke out in 2002. The crisis lasted for a decade, and many issues remain unresolved.

In 2013, the new government of President Alassane Ouattara put forward a law adopted by the National Assembly that provided access to special temporary procedures to acquire Ivorian nationality, but only for those who had been eligible before 1973. Some 120,000 people applied (not necessarily stateless); 6,400 had received documents by early 2016. Permanent reforms to the nationality law have not yet been proposed.

Cross-Border Populations

Also at high risk of statelessness are cross-border populations, divided by lines on maps drawn by the European powers without regard for commonalities of politics, language, culture, religion, lifestyle, or even geography. Often, neighboring states allege that those in border regions are nationals of the other, leaving residents without papers in either. In some cases, such as the Bakassi peninsula between Nigeria and Cameroon and other smaller territories transferred by the International Court of Justice, the border has moved more recently, leaving the status of those in the affected zone unclear. Nomadic pastoralists, a population of several million in West Africa herding livestock across large areas and possibly borders, are particularly at risk of statelessness and face long-held suspicions about their loyalties among settled populations.

Children

Finally, there are children who cannot obtain recognition of the nationality of (one of) their parents. Although women can now more widely transmit citizenship to their children, several countries retain restrictive laws, and discrimination in practice remains widespread. Others at risk include children born out of wedlock (especially those born of rape in war), foundlings or children of unknown parents, orphans, children whose parents are without documentation, and those separated from their parents by conflict, living as street kids or trafficked to another country to work. Lack of timely birth registration is a risk factor for all. These children, and the adults they become, are scattered throughout West Africa and found at the margins of every society. The longer it takes for them to establish a nationality, the more difficult it becomes.

ECOWAS Citizenship

The removal of obstacles to freedom of movement and residence was one of the primary objectives of the 1975 ECOWAS treaty, and was elaborated in subsequent protocols and reaffirmed in the 1993 revision of the treaty. In 1982 ECOWAS adopted the Protocol Relating to the Definition of a Community Citizen, which aimed to create some common principles on citizenship while leaving discretion to the Member States.

Implementation of the ECOWAS framework for regional integration has proceeded in fits and starts, accelerating in recent years. Though incomplete, the legal framework has effectively created a zone of free movement within West Africa. In 2014, ECOWAS abolished the 90-day limit to visa-free residence—which had been largely disregarded in practice—and adopted a common-form regional biometric ID card, due to be introduced by 2017.

The February 2015 Abidjan Declaration fits within this ECOWAS integration framework. It committed states to take action at the domestic level and to ensure issuance of identity documents to nationals abroad, and also urged the ECOWAS institutions to examine and address the causes of statelessness. The declaration thus took the first tentative steps to include within nationality administration an effort to prevent statelessness and to ensure that every person has proof of nationality of at least one state.

Implementing the Abidjan Declaration

One year on from the Abidjan Declaration, all 15 states have nominated coordinators for issues relating to statelessness, while two have adopted national action plans at the ministerial level (The Gambia and Benin), and plans for seven others are in development. Eight ECOWAS states are now parties, six of them since 2010, to both international conventions relating to statelessness (Benin, Côte d’Ivoire, The Gambia, Guinea, Liberia, Niger, Nigeria, and Senegal; Burkina Faso is party to the 1954 Convention only), and accession processes are underway in Ghana, Guinea-Bissau, Mali, and Sierra Leone. Several countries are considering nationality law reform, including removal of remaining gender discrimination. There have been new initiatives to register births in populations at risk of statelessness, for example among Mauritanian refugees in Mali and in the border regions of Benin. Although mostly still at the planning stage rather than practical action, these institutional and procedural reforms show an important commitment at the state level. Perhaps the most notable effort to reduce statelessness in West Africa has been in Côte d’Ivoire (see Box 3), reflected in the choice of location for the Abidjan Declaration.

There is, more generally, widespread recognition that the current situation, in which the nationality of so many remains undetermined, undermines efforts to strengthen both state capacity and national security.

Figure 2. Implementing the Abidjan Declaration

Source: United Nations High Commissioner for Refugees, West Africa.

Way Forward

The ongoing review of the ECOWAS framework on freedom of movement provides an opportunity to integrate measures to prevent and reduce statelessness. The decision to introduce a common biometric identity card across Member States provides an opportunity to strengthen weak identification systems—but carries risks. The introduction of new identification systems is, indeed, a notorious danger-point for the creation of stateless populations. Biometric data are mainly useful to eliminate duplicates in the system and to prevent a person using another’s document, but do not address the central question of entitlement to nationality. To resolve this issue, states will need to take action to remove discrimination in nationality law and administration and provide some rights to acquire citizenship based on birth in a country, at minimum to those who cannot, within a reasonable period, acquire recognition of another nationality. In early April 2016, ECOWAS officials were meeting again to discuss development of a regional plan of action to implement the Abidjan Declaration. This momentum, combined with West Africa’s migratory history, offers hope that the ECOWAS region can take real steps toward establishing a more inclusive legal and administrative framework across all Member States.

Sources

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