Horn Of Africa

The Federal Government of Somalia (FGS) enacted the Somali Citizenship Law No. 28 (1962). However, a UNHCR study on Statelessness and Citizenship in the Horn of Africa (the Regional Statelessness Study) identified several factors that contribute to risks of statelessness, including the following: gaps in the nationality law which are incompatible with international nationality norms; discrimination between men and women in the transmission of nationality to spouses and children; weak administrative procedures and lack of effective identification systems to ensure documented citizenship (including lack of a universal birth registration system).

There is limited knowledge and understanding of statelessness issues among stakeholders in Somalia. This situation is exacerbated by the lack of data on at-risk populations, and why they are at risk, making it extremely difficult to develop effective policies and interventions to address statelessness. The national census, which provides baseline data on the number of Somalis and aliens who may be at risk of statelessness for lack of documentation, was last conducted in 1985/1986, and the final report has not been formally published.

Somalia’s law also includes a problematic presumption of citizenship in favor of those who are “Somali”, defined as “any person who by origin, language or tradition belongs to the Somali Nation.” The law is very broad as to how these criteria would be applied in individual situations and provides no safeguards against statelessness for those who might not be considered “Somali” but are not nationals of any other state.

The law aimed to create very restrictive eligibility for Djiboutian citizenship, given that “more than 50,000 people originating from neighboring countries live in the territory, making up more than one-tenth of the population” At the same time, the law accepted the Djiboutian nationality of those who had previously been recognized as French. Nationality for those who became Djiboutian under the 1981 law became effective from 1977 when the country achieved independence. To be recognized as a Djibouti national under the law, an individual had to meet the following criteria: be within the jurisdiction of the new state at the date of independence; possess French nationality at that date based on birth in the territory or acquisition, and; not hold dual nationality—dual nationals upon independence automatically lost Djiboutian nationality. Children born after independence could only acquire nationality at birth if both parents were Djiboutian (except foundlings and children of Djiboutian mothers if the father was unknown).

The 1981 law was amended in 2004. The new Nationality Code made access to nationality easier so that a child could acquire nationality at birth through either parent, whether born in or out of wedlock. Dual nationality was also permitted for the first time. Djibouti provided an additional temporary procedure to resolve statelessness in Article 8 of the 2004 Nationality Code, providing for temporary birth registrations. The Code established a transitional period of five years following its adoption during which competent officials were empowered to issue birth certificates based on information in public knowledge (Actes de notoriété), enabling late birth registration and recognition of nationality for those born in the territory who had not been able to establish their Djiboutian nationality. This system was intended to draw from procedures established in several former French territories in Africa that allowed a court to recognize an individual’s nationality based on various forms of evidence of a person’s “apparent status” (possession d’état). However, there was no decree or regulation passed to effectuate the proposal, and it does not seem to have been implemented in practice. The 2018 Civil Code, described below, incorporating the nationality law does not include this or a similar provision.

Although Djibouti has acceded to the African Charter on the Rights and Welfare of the Child, and Somalia has signed the Charter, either Djibouti or Somalia conforms to the requirement of art. 6(4) of the Charter requires that each state guarantee nationality to all children born in its territory who are “not granted nationality by any other State by its laws.” That is, they do not protect the child born in the territory of parents who themselves are stateless, or of unknown nationality, or who cannot transmit nationality to their children (for example, because of gender discrimination in the law of the parents’ country or countries of origin).