Tanzania: Constitutional Review Proposes Radical Changes to Citizenship Law

analysis

Tanzania is just starting a major debate on a new constitution for the country, to replace the version adopted in 1977. Among the many reforms proposed to existing laws, the draft proposed by the Constitutional Review Commission will make radical changes to the framework of citizenship law established by the 1995 Citizenship Act.

Some of these changes are clearly positive, especially the removal of gender discrimination in the law, allowing a woman to transmit her nationality to her husband, thus bringing Tanzania into line both with African human rights standards and the strong trend across the continent. Others are more controversial, such as the proposed ending of a ban on dual nationality; which, however, would also be very much in line with continental trends in the past two decades. However, perhaps the most important shift has been least commented upon, which is the removal of the automatic right to citizenship that currently exists for (almost) all those born on Tanzanian soil. In this, Tanzania would also be following a continental trend for Commonwealth countries; but it would be advised to look rather to the precedents established in the former French territories or in some of its southern neighbours for long-term stability.

At independence in 1961, Tanzania's citizenship law followed the same pattern as that of other Commonwealth countries. As a transitional provision for those already alive at the date of independence, the constitution granted citizenship automatically to all those who had been born in the country with one parent also born in Tanzania. People who had been born in the country and were ordinarily resident there, but did not have a parent also born there, had the right to register as nationals, a non-discretionary process; other long-term residents had the right to naturalise providing they fulfilled other conditions related to good conduct etc. The independence constitution also provided, again in line with the common provisions across the Commonwealth, that those born in Tanzania after the date of independence would obtain Tanzanian nationality based solely on the fact of their birth in the country (with some standard exceptions).

Almost all other Commonwealth countries in Africa that had these same provisions have already changed that system (with the sole other remaining exception of Lesotho), removing the right to nationality based simply on birth in the territory (in East Africa, Uganda did this in 1967, and Kenya in 1985, with retroactive effect). While there are variations, none of the other Commonwealth countries that were bequeathed these provisions has provided any residual rights at all based on birth in the territory, though children of unknown parents may be presumed to be citizens.

Like those other amendments, the proposal in the draft Tanzanian constitution to remove all rights to citizenship based on birth in the territory is in violation of the African Charter on the Rights and Welfare of the Child, adopted by the African Union in 1990, which provides in its Article 6 both for every child to have the right to acquire a nationality (that is, while still a child), and also that African states should grant their nationality to a child born on the territory if that child does not acquire the nationality of any other state at birth. Tanzania is a party to that treaty -- as are all the other countries that have completely removed rights to citizenship based on birth on their soil. The provisions of Kenya's new citizenship rules, set out in the constitution adopted in 2010 and subsequent legislation and similar to those proposed for Tanzania, were found to be in violation of these requirements by the African Committee of Experts on the Rights and Welfare of the Child in 2011, in a case brought on behalf of Kenyan Nubian children.

It seems that Tanzanian government officials may not in fact realise that their current law provides for the right to nationality based on birth in Tanzania and therefore that this change is a drastic one. Since the current constitution does not provide for citizenship, the relevant law is the 1995 Tanzanian Citizenship Act which, echoing the independence constitution, provides in relation to citizenship from birth that:

Article 5

(1) Subject to the provisions of subsection (2), every person born in the United Republic on or after Union Day shall be deemed to have become and to have continued to be a citizen of the United Republic with effect from the date of his birth, and with effect from the commencement of this Act shall become and continue to be a citizen of the United Republic, subject to the provisions of section 30.

(2) A person shall not be deemed to be or to have become a citizen of the United Republic by virtue of this section if at the time of his birth:

(a) neither of his parents is or was a citizen of the United Republic and his father possesses the immunity from suit and legal process which is accorded to an envoy of a foreign sovereign power accredited to the United Republic; or

(b) any of his parents is an enemy and the birth occurs in a place then under occupation by the enemy.

(Section 30 provides for continuity of citizenship based on previous laws.)

The language here is quite complicated, but the meaning (as applied in the UK and across the Commonwealth where similar provisions have been in place) is that a child born in the country since the date of independence is Tanzanian by that fact alone, unless the father is a diplomat; but even if the father is a diplomat, the child obtains citizenship if the mother is a citizen. (The child will also not obtain citizenship if either parent is an "enemy" and the birth took place in a place under enemy occupation, but this is a situation that has not arisen in Tanzania.)

This seems not to be the interpretation applied to the words, which have, at least recently, rather been treated as requiring one parent to be a citizen for a child to obtain citizenship even if born in the country. For example, in the context of discussions over the naturalisation of long-term refugees based in Tanzania -- including the 2007 offer of naturalisation to tens of thousands of Burundian refugees resident in the country since 1972 and their descendants -- Tanzanian government officials have not accepted arguments that the children of refugees born in the country are already citizens by the fact of their birth in the territory and do not need naturalisation to become so. The danger of this misinterpretation is seen in the fact that the naturalisation procedure - a deal otherwise in line with Tanzania's historical generosity to refugees, which was negotiated as part of a tripartite agreement with Burundi and UNHCR - was halted when almost complete, leaving thousands in limbo; while thousands of others of Burundian origin were expelled from Tanzania in 2013, even though many of them were likely entitled to recognition as citizens, based on their birth in the country.[1]

In the context of the porosity of national borders and the reality of mass migration, it may arguably be reasonable for Tanzania - and the other Commonwealth countries - to remove the right to citizenship based simply on birth on the territory. At the time this rule was adopted, when nationality law was being invented in the 19th century, people tended to stay where they were born. This is no longer the case, and birth somewhere does not necessarily mean that there is a connection to that country that should trump any other. From 1983, the UK, from whom the rule derived, also removed the right to British citizenship based solely on birth in Britain. However, the UK kept the right for a child born in Britain to register as a British citizen if the parents were "settled" in the UK at the time of his or her birth, or after remaining resident in Britain for the first ten years of his or her life.

South Africa and Namibia have adopted similar rules since democratic government was installed. South Africa provides both in its constitution for every child to have the right to a nationality, and in its law for children born in the territory to be South African from birth if both parents are permanent residents or if the child has the right to no other nationality, and for those still resident there at majority to have the right to register as citizens. Namibia also provides for citizenship to be given to children born in the territory of parents who are ordinarily resident there (with some exceptions, which do not apply if the child would otherwise be stateless).

Neighbouring Mozambique has a citizenship law that creates a right to citizenship based on birth in Mozambique of one parent also born there, or a right to opt for Mozambican citizenship at majority if born in the country. The countries of the former French West Africa (Afrique occidentale française, AOF) similarly give citizenship automatically if one parent was also born there, and/or the right to register as a citizen at majority (or earlier) if still resident there at that time. It is notable that the two countries in francophone Africa with the greatest challenges in terms of national integration are those which did not follow this system: Côte d'Ivoire, which did not follow the standard model for all other AOF territories; and the Democratic Republic of Congo, with its Belgian colonial history.

The draft constitution's proposed ending of gender discrimination and of the ban on dual nationality may mitigate some of the impact of an end to birthright citizenship. Many people born in Tanzania who have a potential right to claim another nationality by descent have been treated as disqualified from Tanzanian citizenship on the grounds of dual nationality even if they have never made any attempt to obtain recognition from the other country. For example, the Burundian refugees who were offered naturalisation as Tanzanian were required to renounce their (presumed) Burundian nationality, even though many of them (those born in Tanzania) did not have recognition of that nationality in fact and had never sought to claim it. There is nervousness (usually on national security grounds) about making this change to the law: but at least 36 African countries now allow dual nationality, and the reality across the continent is that many have ties to two (or more) countries and can be loyal citizens of both. Indeed, the permission to have both may increase rather than decrease the security of both states, by removing the injustice of exclusion from either.

Nonetheless, the failure of the draft new Tanzanian constitution to provide any rights at all based on birth in the territory, even for a child with access to no other nationality, is a significant omission likely to exacerbate the problem of statelessness in the region. While the extension of the right to nationality to a child up to the age of 7 years of unknown parents found in Tanzania is welcome - previously the law only covered new-born infants ("foundlings") - it does not go far enough.

Tanzania has, for the most part, an honourable historical tradition of inclusivity in providing access to citizenship -- a tradition in marked contrast to some of its neighbours. It has reaped the benefit in social peace. The evidence is that adopting a law that leaves immigrants and their descendants permanently outside the national community, unless they apply through highly discretionary naturalisation procedures, can be a risk for long term stability. The constituent assembly would be advised to think hard before taking this step.

Bronwen Manby is an Independent consultant, Human Rights and the Rule of Law Visiting Fellow, Centre for the Study of Human Rights, London School of Economics.

[1] International Refugee Rights Initiative "'I can't be a citizen if I am still a refugee': Former Burundian Refugees Struggle to Assert their new Tanzanian Citizenship", Citizenship and Displacement in the Great Lakes Region Working Paper, 8 March 2013.

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