The interplay of citizenship, nationality and statelessness : interrogating South Africa’s legal framework in light of its international obligations

Abstract

This research examines the principle of belonging as a fundamental basis of existence as a human being. It seeks to show that non-recognition as a national of any country has led to many people being stateless and living with no form of identity or legal status. Being stateless means being invisible and is defined as not being considered as a national by any state under the operation of its law. In light of the above, this thesis critically analyses two jurisdictions, Kenya and Myanmar, with the aim of seeking better practices that South Africa can emulate. It contends that, while South Africa has an obligation to protect the rights of everyone, including those of stateless people, it fails to protect stateless persons as it does not legally recognise them. As a result, reliance is placed on different sources to argue that there is a need for the formation of a statelessness determination procedure to identify and recognise stateless people. If the identity of stateless and undocumented people is not legally recognised, it means that they will not have access to fundamental human rights. Most countries have laws that promote equality and non-discrimination, however, they lack laws that protect the stateless community. It is suggested that the lack of laws regulating statelessness and a statelessness determination procedure means that South Africa is non-compliant with international law that protects stateless people. In addition, this research suggests that South African law should be aligned with international instruments that call for protection of individuals from becoming stateless and also prevent the crisis from becoming worse.This flows from the understanding that with no law in South Africa that recognises and identifies stateless people, it means that it is impossible for a country to protect a community it does not recognise. Finally, the thesis recommends that South Africa enacts laws that recognise stateless people and make provision for the procedures to be followed in order for them to have a legal status. Furthermore, South Africa can amend and make changes in the policies, laws and the administration dealing with statelessness in order to prevent it.