Mulowayi v Minister of Home Affairs is an appeal to the South African Constitutional Court from a decision
of the High Court of South Africa dealing with the validity of a regulation
amending the South African Citizenship Act 2010 1.
The legal issue to be determined by the Constitutional Court was on a narrow technical point. The reason I chose to write about this case is because it touches on wider issues arising from South Africa’s citizenship regime — especially as they affect stateless people.
The statelessness question in Mulowayi
In this case, the third applicant, Gaddiel, who is a child, was born in South Africa without a nationality. He is stateless. Gaddiel should have been substantively protected as a stateless person by provisions in South Africa’s Citizenship Act 2. The Act grants citizenship to a person who is not a citizen or national of any other country or has no right to such citizenship and who has been registered in accordance with relevant South African laws.
However, this substantive protection is only attainable if Gaddiel undertakes further litigation challenging the failure of the South African government to enact a process for Gaddiel to make an application under the Citizenship Act. The lack of an application process under the statelessness provisions of the Citizenship Act had already been raised in an earlier case, Minister of Home Affairs v DGLR [2016] 3. Despite the decision in DGLR, the Department of Home Affairs has taken no steps to remedy the omission.
The story of the Mulowayi family, and especially their son, Gaddiel, demonstrates the challenges so many stateless people face navigating complex administrative processes just to get access to basic rights that should already be available to them.
Statelessness in South Africa
I have written about the challenges faced by children in South Africa before arguing, as many rights groups have done, that legal identity should not be conditional on the status of the child’s parents 4. The risk of statelessness in South Africa, especially to children, increased when South African authorities sought to limit those eligible to be registered at birth. Children whose parents are foreign nationals and have no right to permanent residence in South Africa could not have their birth registered meaning they would struggle to establish their legal identity 5. Denying children a birth certificate in a state where birth registration is so closely link to nationality is a serious problem. It will impact not only those children being denied a certificate today, but future generations too 6.
Lack of a legal identity is one reason why so many children are now at risk of statelessness. Another, aptly illustrated by Gaddiel Mulowayi’s case, is the lack of administrative process and administrative justice that allows those who are stateless to rely on existing laws offering those who are stateless, or at risk of statelessness, much needed protection. Gaddiel should be able to rely on South Africa’s well drafted and international law compliant provisions to acquire South African citizenship. Yet the process by which he can do that has not been put in place. Liesl Miller, a South African attorney who heads up the statelessness project at Lawyers for Human Rights sums up the problem of statelessness in South Africa: