But this review of deprivation provisions has a slightly unreal feel. These procedures are hardly used, so far as one can tell. Only South Africa publishes any statistics – or at least it used to do so – revealing that at least 17 people have been deprived of citizenship since 2001-02 (despite the constitutional ban on deprivation), though no details are given. Countries such as Kenya and Nigeria, both facing well-publicised and serious security threats from the Al-Qaeda-affiliated Al-Shabaab and Boko Haram are not known to have deprived any individual of citizenship through the formal procedures of the law on deprivation.Footnote 16
The legal provisions on deprivation of citizenship are, in fact, more or less irrelevant in countries where (a) as described above, citizens from birth cannot be deprived of citizenship under law except in the rather rare circumstance of working for another state despite a formal request not to do so; (b) naturalisation is very difficult to obtain; and (c) the government has easily accessible other means of achieving the same result in relation to (people who believed they were) birthright citizens, obviating any need to amend the law on withdrawal of nationality.
As regards (b), statistics on naturalisation are hard to come by, but it seems that only a handful of people a year may be naturalised in most countries – even in Nigeria, with more than 150 million people, only around a hundred people acquire nationality by naturalisation or marriage annually – and those who are naturalised are mostly non-Africans operating in the formal economy, with all the panoply of lawyers and documents to support their claim.Footnote 17 So few people are involved, and the procedures for obtaining naturalisation are so highly discretionary, that it seems unlikely that anyone who has the slightest possibility of becoming a threat to the security of the state could pass that barrier – and therefore be at risk of subsequent deprivation. It’s not impossible of course; but very unlikely. South Africa has had much more accessible naturalisation procedures, rendering it perhaps more vulnerable in this regard; but the numbers have dropped dramatically in recent years, without explanation.
Therefore, (c) comes into play. The methods traditionally used in Africa to ‘denationalise’ a person are simply to deny that he or she ever had nationality to start off with; to argue that the nationality documentation previously held was issued in error, or to fail to issue or renew a document providing proof of nationality (not even requiring an allegation of fraud). The key amendments to nationality laws in Africa have not been to increase government powers to deprive, but to restrict access to nationality based on birth and residence and to exploit any ambiguity in the rules applied on succession of states at independence.Footnote 18 These are the methods used against some high profile individuals: Kenneth Kaunda of Zambia and Alassane Ouattara of Côte d’Ivoire most famously; but also John Modise of Botswana, who found himself no longer considered a national by birth when he set up a political party in order to run for president. These cases reached the African Commission on Human and Peoples’ Rights, but there are many others litigated only at national level involving politicians, journalists or activists.
UNHCR’s clear guidance is that a retrospective finding that a person was not a national and was issued nationality documents in error is just as subject to rules on arbitrariness as any procedure under formal provisions on deprivation.Footnote 19 However, under national law, why bother with deprivation proceedings if you can manage matters so much more easily by other methods? And this applies especially when whole categories of people are seen as problematic, or potentially so.
It is, in fact, not the individual difficult cases that raise the greatest concerns in the African context, but the tendency to attribute collective responsibility to whole groups of citizens when a country is faced with a (real or perceived) security threat – or simply an organised opposition with support from a particular ethnic group. Faced with the challenges of ‘nation-building’ in states created by colonial fiat, the question of who belongs is not necessarily an obvious one to answer. African states have a history of mass expulsions based on ethnic grounds – there is even a style of bag known in Nigeria as a ‘Ghana Must Go’ bag, dating to one such episode in the 1980s when (actual or alleged) Ghanaians had to pack up and leave – and it remains the case that the usual approach is to assert that someone is a non-national, and then expel them.Footnote 20 The prevalence of such practices led to the inclusion of a specific provision banning mass expulsions, not found among similar treaties, in the African Charter on Human and Peoples’ Rights.Footnote 21 Even where those who have been expelled fail to find recognition in their alleged country of origin, they may be unable to reclaim their status in the former country of residence: among those persons of Eritrean origin who were expelled by Ethiopia to Eritrea during the 1998 war between the two countries, a number subsequently became refugees from the highly repressive Eritrean regime. Even in their case, when some applied for reacquisition of Ethiopian nationality, they were reportedly told that they were security risks, so could not get papers.Footnote 22
In Kenya, discriminatory measures in relation to documentation and identity have been sharply stepped up against Kenyan Somalis and coastal Muslims, tarred with the brush of the Westgate Mall siege and other outrages. In addition to a general round up and detention of suspected youth, the issuance of national ID cards has been suspended in the three counties that are located in the former North Eastern Province bordering Somalia (Garissa, Wajir and Mandera Counties, created by the 2010 Constitution), meaning that those without IDs cannot travel out of that zone, and effectively lose the reality of citizenship rights – without the need for the government to undertake any bothersome legal proceedings.Footnote 23 In Nigeria, the peculiar features of the country’s federal system have led to the possibility of ‘denationalisation’ from a particular part of the country, even though such measures haven’t been taken at national level. In the context of the threat from Boko Haram, governors of states in the south-east of the country in 2014 stepped up long-standing discrimination based on the idea of ‘indigeneity’ to adopt controversial measures to register and possibly deport ‘non-indigenes’, leading to an emergency meeting of the National Council of State in July 2014 to condemn these practices (but no action beyond establishing a committee to make recommendations).Footnote 24 Ghana’s consul-general in Nigeria indeed recently blamed the Boko Haram insurgency on ‘stateless people’ excluded from the benefits of citizenship, and urged efforts to strengthen documentation across the sub-region.Footnote 25
There are the beginnings of recognition that stronger guarantees around the right to a nationality may be part of the solution to some of the security challenges in the continent. The African Commission on Human and Peoples’ Rights is working with the AU Commission in Addis Ababa to draft a protocol to the African Charter on the right to a nationality.Footnote 26 The African Committee of Experts on the Rights and Welfare of the Child recently adopted a General Comment on the rights of children to a name, birth registration and a nationality.Footnote 27 In parallel, there is a major push to improve documentation through the initiation or strengthening of requirements to hold a national identity card, for civil registration in general, and for the use of biometric data in these documents. But this push on information technology carries significant risks that governments will seek only to police the boundaries of their systems, excluding anyone of ‘doubtful’ nationality, while failing to reform legal provisions and administrative practices that restrict access to nationality for those who constitute no security threat at all. To date, the international agencies responsible on these issues — especially UNHCR, UNICEF and IOM — are also failing to join up the dots with a coherent approach on nationality and documentation in their interventions with national governments. Given the very real security threats they face, it remains an open question whether governments such as Nigeria’s and Kenya’s will commit to more secure rights to citizenship, rather than only more secure documentation.