International Human Rights Law, Statelessness, and the Right to A Nationality in Africa

• Pages: 301-429
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: John Mukum Mbaku
• Subject Matter: Derecho Internacional

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

intErnational huMan rights law,

statElEssnEss, and thE right to a

nationality in afriCa

John Mukum Mbaku

Weber State University

E-mail: jmbaku@weber.edu

In February 2024, the Assembly of States and Government of the African Union

adopted the Protocol to the African Charter on Human and Peoples’ Rights Re-

lating to the Specic Aspects of the Right to a Nationality and the Eradication of

Statelessness in Africa (“African Nationality Protocol”). e U.N. Refugee Agen-

cy endorsed this Protocol and noted that statelessness is a global problem that

aects many people and that those aected are oen not recognized as citizens

of any country. As a consequence, these stateless persons are not able to partici-

pate fully and eectively in the economic and political life of their communities,

nor are they able to access basic rights and services, such as basic education and

health care. In addition, they are usually vulnerable to discrimination, exploita-

tion and abuse. e African Nationality Protocol is expected to become part of

an international human rights framework, which includes instruments, such

as the Convention on the Reduction of Statelessness, that provides protections

to the rights and fundamental freedoms of stateless persons. Eradicating state-

lessness in Africa includes 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. It is also important to address other factors that contribute to state-

lessness, which include, inter alia, racism, xenophobia, patriarchy, and discrimi-

nation. In addition, African States must sign, ratify and domesticate the African

Nationality Protocol to create rights that are justiciable in their domestic courts.

However, successfully carrying out these necessary and important institutional

reforms will likely take a signicant amount of time, political will, and the sup-

port of civil society. In the meantime, courts at the regional and national levels,

can adjudicate cases involving statelessness and stateless persons and issue rul-

ings that can help the political branches in their eorts to reform domestic laws

and improve the ability of stateless persons to realize their right to a nationality.

Case law from regional and national courts is contributing to the development

of a robust jurisprudence on the right to a nationality in Africa.

Keywords: Human Rights, International Law, Regionalism, Case Law.

303

International Law and Statelesness in African Law

Mbaku

INTRODUCTION

In February 2024, the U.N. High Commissioner for Refugees (“UN-

HCR, the U.N. Refugee Agency”) commended the African Union

(“AU”) Assembly of Heads of State and Government for adopting a

Protocol to “eradicate statelessness and advance inclusion for millions

of stateless people on the continent.”1 e Protocol to the African Char-

ter on Human and Peoples’ Rights Relating to the Specic Aspects of

the Right to a Nationality and the Eradication of Statelessness in Afri-

ca (“African Nationality Protocol”) was adopted on February 18, 2024,

during the 37th Ordinary Session of the AU Assembly of Heads of State

and Government at Addis Ababa, Ethiopia.2 e U.N. Refugee Agency

notes that statelessness is a global problem that aects many people,

“with those aected denied the right to recognition as citizens of any

country, as well as associated rights.”3 As a consequence, these stateless

individuals are “oen prevented from fully participating in society, po-

litically and economically marginalized, and vulnerable to discrimina-

tion, exploitation, and abuse.”4

e African Nationality Protocol seeks to “provide solutions to

legal barriers that will ensure that stateless people and those at risk of

statelessness can exercise their right to a nationality and, in turn, have

better access to fundamental human rights, as well as national services

such as health, education, and formal employment.”5 e U.N. Refugee

Agency’s Assistant High Commissioner for Protection, Ruvendrini

Menikdiwela, has explained that the adoption of the African Nationality

Protocol “is a critical step in truly ending statelessness for people in

1. T U.N. R A, UNHCR lauds African Union move to address

stateliness across the continent, Feb. 22, 2024, https://www.unhcr.org/us/news/

press-releases/unhcr-lauds-african-union-move-address-statelessness-across-

continent (Feb. 6, 2025).

2. African Union, Protocol to the African Charter on Human and Peoples’

Rights Relating to the Specic Aspects of the Right to a Nationality and the

Eradication of Statelessness in Africa, adopted on Feb. 18, 2024, at Addis

Ababa, Ethiopia (hereinaer African Nationality Charter).

3. U.N. R A, supra note 1.

4. Id.

5. Id.