An analysis and re-assessment of the immigration legislative and administrative frameworks in combating statelessness: a decolonised view

Abstract

This study was prompted by the large number of stateless persons in the world. Of particular significance, this study is in light of those Africans who are stateless in Africa. African unity remains an ideal as envisaged by Pan Africanists such as Kwameh Nkrumah who fought for a “United States of Africa” and Steve Biko amongst others, who fought against Apartheid. To-date the African continent still has Africans who have no nationality. This study, therefore, takes an unconventional and philosophical approach in addressing the problem of statelessness in South Africa and in turn, Africa. In addition, the study examines the overarching international and regional human rights standards that seek to protect the right to a nationality. These are juxtaposed against the domestic laws of the United Kingdom, Kenya and South Africa through a comparative study. The study suggests that it is imperative to have in place, legal and administrative solutions to combat statelessness until the goal for a “United States of Africa” is realised. This would include establishing a Statelessness Determination Procedure to assist in identifying those who are stateless as advanced by the Statelessness Conventions and furthermore by ensuring that new cases of statelessness are curbed by entrenching the right to a nationality from birth not just based on jus sanguinis but also allowing jus soli where a child is born “at risk” of statelessness. This study suggests that Member states would also need to incorporate safeguards in their domestic laws to address existing cases of statelessness and the prevention of new cases of statelessness.Training for immigration officials is also found to be key to guarantee that there is a broader understanding of the nature of statelessness, what constitutes a stateless person and the fact that a stateless person is not by deduction an illegal immigrant. The principles and spirit of ubuntu and African communalism are recommended for use as part of the building blocks that can underpin the development of the administrative and legal frameworks pertaining to statelessness in South Africa and Africa. The old age adage as espoused in most vernaculars “Muthu ndi muthu nga vhanwe vhathu, umuntu ngu muntu nga banye bantu, Motho ke Motho ka bangwe batho”..etc, literally translates to mean that “a human being is a human being because of others” alternatively “I am because you are”. This adage is the cornerstone of who Africans are and it is for this reason that this study seeks to address the issue of statelessness in relation to Africans differently. The study finds that in addition to the recognition and application of ubuntu and African communalism as values that may be used to reinforce legal reform, Supranationalism and the establishment of an African Union jurisprudence are also avenues that may be pursued in order to address statelessnes in (South) Africa and in turn Africa. This study is the first to address the issue of statelessness in South Africa and in turn Africa by advocating for the adoption of the principle of ubuntu as a constitutional value and African communalism to underpin the legislative reforms required to ensure that the right to a nationality is realised in South Africa and in the African continent.