Citizenship in Africa

The Law of Belonging

Bronwen Manby

• Publisher: Hart Publishing
• Year: 2018
• Print ISBN:
  9781509944002
• Edition: 1
• eBook ISBN:
  9781509920792
• Topic: Law
• Subtopic: International Law
• Index: Law

Citizenship in Africa provides a comprehensive exploration of nationality laws in Africa, placing them in their theoretical and historical context. It offers the first serious attempt to analyse the impact of nationality law on politics and society in different African states from a trans-continental comparative perspective. Taking a four-part approach, Parts I and II set the book within the framework of existing scholarship on citizenship, from both sociological and legal perspectives, and examine the history of nationality laws in Africa from the colonial period to the present day. Part III considers case studies which illustrate the application and misapplication of the law in practice, and the relationship of legal and political developments in each country. Finally, Part IV explores the impact of the law on politics, and its relevance for questions of identity and 'belonging' today, concluding with a set of issues for further research. Ambitious in scope and compelling in analysis, this is an important new work on citizenship in Africa.

PART I

Introduction

1

International Law and the Right to a Nationality

A child born in Kailahun district of north east Sierra Leone as a member of the Kissi people is likely to have extended family across three countries. The district forms a promontory of territory between Liberia and Guinea; an anomaly created by the classic ruthless division of existing socio-political units by colonial borders.

Each of the three countries has entirely different formal legal traditions, and entirely different rules on who qualifies for its nationality. Let us say that our Sierra Leonean child, we’ll call him Samson, does well in school, and wishes to go and study in Freetown on a government scholarship. To qualify for the scholarship, he will need confirmation that he is Sierra Leonean. The rules applied in Sierra Leone under the 1973 Citizenship Act are that a person is a citizen if born in Sierra Leone of one parent also born there, provided the parent is of ‘negro African descent’. Samson has a cousin in Guinea, we’ll call him Georges. Georges wants to study in Conakry, and to get the equivalent scholarship he has to fulfil the requirements on nationality set out in the 1983 civil code, and show either that he has a Guinean parent, or that he was born in Guinea and has remained resident there until he turned 18. The third cousin, Lisa, was born in Sierra Leone, but moved to Liberia when very small with her mother, who was herself born there, and she has grown up in Liberia. Liberian law contradicts itself: the constitution says that the child of a Liberian mother or father obtains Liberian citizenship at birth; but the Aliens and Nationality Law of 1973 says that citizenship is acquired automatically based on birth in Liberia, while women cannot transmit citizenship to their children born outside Liberia. Only ‘negroes’ are eligible for Liberian citizenship.

One ethnic group, three countries, three entirely different citizenship regimes; or three and a half, if Liberia’s contradictions are taken into account. Add to these complications the fact that birth registration, the primary route established in law to prove a child’s origins, is only around 5 per cent in Liberia, and well under 50 per cent in Guinea, though almost 80 per cent in Sierra Leone. Guinea has had a requirement to carry a national identity card since independence, but in practice less than half the adult population is estimated to hold one. Sierra Leone and Liberia only began the process of introducing national identity cards from around 2015. In Guinea, a magistrate has the power to confirm whether or not Georges is Guinean by birth; in Liberia and Sierra Leone, however, the executive branch is in complete control of the process of determining if a person is a citizen.

In practice, of course, these rules may be of little relevance. What Samson, Georges and Lisa really need for confirmation of their citizenship is the attestation of a traditional leader or other local dignitary recognised by the authorities of each State that they belong to his or her community. With such a letter or oral confirmation, they are likely to be issued the documents they need.

But hold on. Take away the family relationships and solid connections to a community. What if Lisa was the child of a war, the product of a rape by a soldier (Kailahun was the first place in Sierra Leone attacked by the Revolutionary United Front in 1991)? What if Georges was found abandoned as a baby, brought up (but, of course, never formally adopted) by the family who found him? What if Samson’s parents were members of the Mandingo ethnic group, born in Guinea, who moved to Sierra Leone for better economic opportunities and because the schools were better? Take away the ‘obvious’ nature of belonging and suddenly the rules and procedures, coverage of birth registration, and national identification systems become much more important. Not to mention access to legal assistance and funds to support the fees, official and unofficial, that will surround the application for recognition as a national.

There is a rich field of scholarship on questions of identity and belonging in Africa, on the conundrum of nation-building in the post-independence States. This literature is concerned with the complex questions of defining the membership of the ‘nation’ itself, the entity usually taken for granted in similar debates in the home territories of the European colonial powers. It considers the relative contribution of ethnic identity and diversity as a cause of conflict and political dysfunction, in relation to other factors such as regional underdevelopment, or the accessibility of rich and portable natural resources. More recently, attention has been drawn to the increased intensity of ‘autochtone-allochtone’ or ‘indigene-settler’ conflicts following the re-introduction of multi-party democracy during the 1990s. By contrast to debates over identity and belonging in other continents, however, discussion of the basis of nationality law, the rights of those born in the country, the rules on descent, and the procedures for integration of immigrants through naturalisation have not received major comparative analysis.

The lack of attention to nationality laws in Africa is understandable: on the one hand, most Africans have historically held no document that officially recognised their nationality; on the other, administration of nationality law is often highly corrupt or clearly instrumentalised (or both), meaning that the law, as it is applied in practice, may be quite distant from the law as it is on paper. In a context where censuses are highly unreliable; where many, perhaps most, children are not registered at birth; where the economy is largely informal; and where a large percentage of adults get by with no formal documentation, the definition and content of the legal tie between a person and the State where he or she lives seems less urgent to determine. The situation of those whose right to a nationality is under threat may not differ very much from their neighbours whose nationality is uncontested; while the same problems also arise in communities whose right to belong at the national level is uncontroversial and the issue at hand is the right to access resources in a particular local government area, not an international passport.

This book, however, advances a set of interlinked arguments for the relevance of nationality law to the broader crises of citizenship in the continent, and therefore for the role that reforms to the normative frameworks of the law may play at both national and international levels.

Firstly, an examination of the history of nationality law in Africa, from the colonial period, through the transitional provisions on the creation of the new States, and the initial frameworks of nationality applied to those born after independence, sheds light on the (often unanticipated) consequences of these different frameworks for national cohesion today. Secondly, it is worth paying attention to the detail of the ways in which nationality law has been amended and applied – or manipulated – since independence, in comparative perspective, for insights into the political process and the ‘imagining’ of the national (or local) community. Nationality law is relevant to broader questions of citizenship and participation in African States, as it is in other countries, despite – or because of – the history by which those States came to be created and the institutional weaknesses that resulted. Thirdly, the impact of defects in nationality law and administration on the most marginalised is real and likely to increase, as African States follow the rest of the world in strengthening requirements for identification to access services and as travel within and between countries without documents is ever more difficult. Finally, the relevance of the law means both that efforts to reform the law at national level are meaningful, but also that the weak international normative framework on nationality needs strengthening.

I argue that variations in citizenship laws and regulations may have had important impacts in their own right on the ways in which questions of autochthony or indigeneity have played out in African States since independence. These variations themselves deserve greater study, both to enrich understanding of political crises based on questions of belonging, and to inform future efforts at reform. The substantive and procedural content of nationality laws can in itself either undermine the project of nation-building that has so bedevilled the continent or, alternatively, become a tool to use in that effort.

To date, advocacy for reform of nationality laws in Africa has focused on two main issues: gender equality in transmission of nationality, led by the women’s rights movement; and dual nationality, influenced by the trend to gender equality, but largely driven by African diaspora groups. They have had great success: Africa has shared the strong global trends towards equal rights of men and women in nationality, and towards acceptance of dual nationality. There has been much less advocacy around an individual’s right to a nationality in the State where he or she has the strongest connections; where he or she was born and brought up, has earned a living, born children, and centred his or her life. In part, this lack of advocacy reflects – and is reflected by – the weakness of international law in this area. While the Universal Declaration of Human Rights of 1948 proclaims that ‘everyone has the right to a nationality’, the precise country obliged to recognise a person’s nationality has, despite some restrictions, remained quite unclear. Though the point on gender equality is now (mostly) conceded, States in Africa as elsewhere still hold strongly onto the idea of nationality being a matter of sovereign discretion and not of human rights. This book joins the chorus of those arguing that the national and international law frameworks need reform, to establish the right to nationality based on criteria recognising strong connections to a territory through birth and residence as well as descent, and records efforts at the national and African levels to do so.

1.1.What’s in a Word: Citizenship or Nationality?

Some discussion of terminology is a necessary preliminary before embarking on a debate over the impact of formal legal rules on broader questions belonging and participation, starting from the words ‘citizenship’ and ‘nationality’ themselves.

Nationality and citizenship are now used as synonyms in international law, to describe the legal relationship between the State and the individual that recognises the individual as having certain rights and obligations in that State.¹ In this book, the terms will accordingly be used interchangeably, but with usage varying by context (usually the language of the country under consideration and the terminology of that country’s laws).

However, it is hard to understand debates around citizenship without understanding how these terms are used in different contexts. The two dominant legal traditions considered in this book, the common law and civil law, have different approaches. ‘Nationality’ and ‘national’ are in both traditions the usual term used in international legal texts for the idea of legal membership of a country; though even there the usage is not consistent.² At domestic level, laws in the anglophone common law tradition (including the US, for these purposes) most commonly use ‘citizenship’ as the term to describe the legal bond between individual and State. The UK itself creates enormous confusion with the different terms that have been used over time (see Chapter 3.1), and the colonial distinctions have traces till today in the several different categories of ‘British national’, among whom only ‘British citizens’ (a status created in 1981) have the full range of rights.³ In the French and Belgian civil law tradition, meanwhile, nationalité is the term used at both international and national levels to describe the legal bond between a person and a political entity, and the rules for membership of the community. Where a Commonwealth State would have a national citizenship act, a member of the Francophonie has a code de la nationalité. Citoyenneté is not used in this context.

Moving beyond the world of law and legal definition, moreover, the two words come from different historical and academic traditions, and in practice different authors use them to mean different things, even when discussing legal issues. These etymological overtones make it hard to use the terms equally with neutral effect. In general, we can make some broad distinctions. Citizenship and its cognates in other languages – derived from city – have connotations related to civil rights and participation. Nationality and its cognates – derived from nation – have connotations related to ethnicity, family, and culture.⁴

For sociologists and political scientists, the scholarly debate over ‘citizenship’ is mainly about the content of citizenship: what are (or should be) the rights of members of the national community?⁵ These debates have a genealogy reaching far back into European history, from the challenge to allegiance based on feudal overlordship and the divine right of kings, ascribed at birth and due to the sovereign from all in his territory. As the great dynastic monarchies began to decline, enligh...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Abbreviations
• PART I: INTRODUCTION
• PART II: EMPIRE TO INDEPENDENCE: THE INVENTION OF NATIONALITY IN AFRICA
• PART III: AFRICAN NATIONALITY LAWS SINCE INDEPENDENCE
• PART IV: COUNTRY CASE STUDIES
• PART V: CONCLUSIONS
• Bibliography
• List of Citizenship Laws
• Index
• Copyright Page