Save children from statelessness in South Africa

Dear Friends

We are excited to start off this year with you - our partners and collaborators. We firmly believe that 2020 will be the year of breakthrough for stateless and undocumented children. We have recently decided to place an even bigger emphasis on the rights of children in our work and to prioritise children's rights in 2020.

We have many plans which we will share with you as the year progresses. In the meantime we want to share a very exciting development since our last report. In a joint effort by the Centre for Child Law and the Legal Resources Centre, 37 undocumented children fought for the right to education for all ... and won!

The Makhanda High Court in Grahamstown handed down judgment in December which confirms every child’s right to an education, regardless of their immigration status or level of documentation.

Thirty-seven children and the Centre for Child Law, represented by the Legal Resources Centre, challenged the constitutionality of various provisions in the Admissions Policy for Ordinary Public Schools and the Immigration Act, which discriminate against undocumented learners. The provisions require documentation (including birth certificates) for admission to school and even criminalise the act of providing schooling to an undocumented child. The court today confirmed that these provisions are unconstitutional.

The judgment is a triumph for undocumented children everywhere, particularly those who are stateless, who do not have access to a nationality, and who suffer many multiple human rights abuses and traumas.

A stateless child is a child who is not recognised as a citizen by any country in the world, according to the UN Convention on the Status of Stateless Persons. The LHR Statelessness Project provides legal assistance to such children living in South Africa. Many of these children are South African citizens in law, but are deprived of their right to a nationality by the refusal of South African birth certificates by the Department of Home Affairs. Often children are denied birth certificates, simply because they cannot pay the high cost of DNA paternity testing (which can be as high as R2300 for a family of 4), making birth registration inaccessible to the most vulnerable, and criminalising the poor.

LHR submitted expert evidence in support of the case providing the court with concrete examples of real cases where a child has suffered multiple disadvantages for not being documented - due to no fault of her own. LHR advocates for universal birth registration without discrimination based on nationality or documentation; as well as universal access to other fundamental rights regardless of birth registration or lack thereof.

Watch the story of Nozi, our client, who fought bravely for her education and citizenship in South Africa here: https://www.youtube.com/watch?v=56tuOAZlF2g

For the full text of the judgment follow this link: http://lrc.org.za/wp-content/uploads/2019/December/Resources/Phakamisa-judgment-20191212.pdf

Links:

• Press release: Undocumented Children win the right to education

Baby David’s mom, Litha, was born and grew up stateless in South Africa. Litha’s own mother and father died before she was old enough to understand that she would be need them to prove her nationality one day. They lived between Zimbabwe, Botswana and South Africa and Litha doesn’t know which countries’ citizenship they had. Litha has been unable to prove her citizenship in any of these countries for 7 years.

When Litha gave birth to Baby David, the Department of Home Affairs explained that unregistered mothers cannot register their babies’ births. Litha applied for permanent residence as a stateless person in South Africa 5 years ago, but had never received a response from the Minister of Home Affairs and until she had documents, her baby, David, could not get a birth certificate.

LHR assisted her to make an application to the High Court in which she asked the court to consider her and David’s citizenship. David was already 2 years old, and Litha 27, when the High Court made a judgement declaring both Litha and David to be South African citizens by birth. Litha said: “Now I can study to become a pilot. I can dream again.”

Without pro bono legal intervention Litha would not be able to afford a court application. The generous donations of our donors have made it possible for David and Litha to come this far. Unfortunately, the Department has not yet issued David’s birth certificate. We may need to intervene once more to ensure he gets full access to his right to nationality.

Since July 2019, LHR has assisted 27 additional children in similar situations. Some of them are children whose parents are in jail and cannot accompany them to Home Affairs. As a result they are denied IDs when they turn 16 and they risk not being able to write their matric. LHR continues to intervene on these children’s behalf.

To listen to Litha and David's story follow the link below to the Institute for Statelessness and Inclusion's (ISI) podcast series. For What’s Best for Children’s Nationality, ISI has partnered with UNICEF to produce a six-part podcast series that aims to build knowledge around childhood statelessness and the right of every child to a nationality by exploring good practices. As such the series features childhood statelessness stories, challenges and successes from real-life settings. 

We thank you for your continued support to make our work possible.

Links:

• What's Best for Children's Nationality Podcast