The Law is Not Enough

Realising the Child’s Right to a Nationality in South Africa

Abstract

The Republic of South Africa (‘South Africa’) boasts some of the most progressive and inclusive citizenship laws on the African continent, protecting the right to citizenship in both its constitution and subsidiary legislation and affording special protections to children. A simple exercise in comparative law would find that there is no statelessness problem in South Africa but that would be incorrect. A closer look at the implementation of the laws reveals serious problems in the Government’s nationality administration, resulting in statelessness. In the South African context, it is not immediately possible to tell whether a child is stateless. It is only once attempts have been made to obtain (recognition of) citizenship and those attempts have failed (because of a faulty system) that a determination can be made. Under customary international law, a person is stateless because of non-recognition of citizenship by any state, whether legally or illegally. As a result, nationality administration procedures are as important as laws. South Africa’s failure to formally recognise its citizens because of insurmountable administrative barriers and discriminatory practices is making children in South Africa stateless, rendering its impressive laws useless. This article provides a brief analysis of the historical and legislative context within which South Africa finds itself, then analyses recent jurisprudence on childhood statelessness to illustrate how the right to administrative justice is crucial to South Africa’s trajectory of success in ending childhood statelessness, offering recommendations for the way forward.