The Kingdom of Eswatini

This section measures the state’s progress in terms of the extent to which it has signed and ratified the most relevant international and regional legal instruments which provide for the right to nationality, the prevention or reduction of statelessness, and the protection of stateless persons.

Score available: 15.5

The Kingdom of Eswatini scores 14 out of 15,5 having signed most of the relevant treaties. Eswatini loses a point for not having signed AU Free movement Protocol and for international law not having direct effect in the domestic law.

Positive

Birth registration is the most authoritative evidence of the key facts which establish a person’s nationality. Lack of access to birth registration and a birth certificate, issued as proof of such registration, is a cause of statelessness and a barrier to recognition of citizenship.

This indicator records the relevant information on the rates of birth registration in the country, as well as the legal provisions regulating birth registration, including late registration, the issue of birth certificate, and any discrimination in law based on the parents’ immigration status, sex or marital status. It also considers the law on access to consular registration.

Score available: 15

For access to birth registration the Kingdom of Eswatini scores 7 out of 15. Eswatini has very low birth registration rates, and the rate of issuance of birth certificates is significantly lower than that amount. Eswatini loses points for both of these issues. The rate has increased in the last 5 years and so an additional point is earned. Eswatini scores points for making birth registration a right for children generally and specifically providing for the rights of orphaned and vulnerable children to birth registration. Like many other countries, Eswatini loses points for late registration of birth procedures that are exceedingly difficult to comply with. There is talk of including a DNA requirement in the late registration of birth process like in South Africa. That is unfortunate, and if implemented, would lose them another point. Eswatini does not allow fathers to register children without mothers should the mother be incapacitated, or otherwise unavailable. This could be remedied for an additional point.

Somewhat Negative

African and other international law establishes minimum legal provisions for the prevention of statelessness at birth. These standards include the presumption of nationality for children of unknown parents found in the territory, and the grant of nationality to children born in the territory who do not acquire another nationality at birth.

The African Committee of Experts on the Rights and Welfare of the Child in its General Comment No.2, on Article 6 of the African Children’s Charter, and the African Commission on Human and Peoples’ Rights in its study on the right to a nationality and in its resolution 234 of 2013.

The draft protocol to the African Charter on Human and Peoples’ Rights on the specific aspects of the right to a nationality and the eradication of statelessness in Africa endorses many of these recommendations. This indicator measures the relevant state’s performance in providing legal effective safeguards against statelessness at birth.

Score available: 15

Eswatini scores 4,5 out of 15 for prevention of statelessness at birth. As in many Southern African countries, jus soli does not apply and no provision is made for children born stateless in the territory to acquire citizenship.

Where the law does make provision for the passing of nationality to children in an automatic way, it is hampered significantly by the restrictions based on gender and marital status of the parent.

A new law is in the making and may well address these concerns. What Eswatini does gain points for is their remarkably progressive foundling provision for which they earned additional marks.

Somewhat Negative

Discrimination in transmission of nationality based on sex is one of the most common causes of statelessness. There are five questions for this indicator, considering whether there is a general constitutional prohibition on discrimination based on sex, equality in the right to transmit nationality to children (natural and adopted) and to spouses, and discrimination in the provisions for mothers and fathers to register the birth of a child (subject only to proof of parentage, where relevant).

These questions are already addressed in the previous two indictors that consider birth registration and prevention of statelessness at birth generally; but this indicator pulls out the specific area where gender discrimination is likely to occur.
The questions on equal rights to transmit to children and to register a birth also request that information is recorded in the comment column relating to discrimination based on nature of the discrimination, including the rights of different parents in case of birth in or out of wedlock.

Score available: 5

Eswatini scores a regrettable 2 out of 5 in this section in contrast with the other countries. This is due to its clear prohibition of the passing of nationality from a woman to her foreign spouse as well as the limitation of passing of nationality to a child through the father only.

The two points scored is for the constitutional right not to be discriminated against based on gender, and the apparent gender neutrality in the constitution’s language on adoptive parents, using the word “parent” instead of “father”. The application of this section in practice needs clarification. On the upside, Eswatini, is in the process of adopting a new citizenship law which will address discrimination in transmission of nationality to children and spouses. If this law is passed, the Kingdom of Eswatini may well score a perfect score in this section, at least in legislation.

Somewhat Negative

Lack of access to naturalisation is a cause of statelessness, especially in countries that have no rights to nationality based on birth in the territory, where many adults hold no documentation recording their nationality, and where birth registration rates are low. Access to naturalisation is particularly important for (long-term) refugees and for stateless persons – and the UN Convention on Refugees and Stateless Persons provide that naturalisation should be facilitated in both cases.

This indicator considers the legal provisions on access to naturalisation based on marriage and based on long residence, and facilitation for refugees and stateless persons. It also considers the protections against statelessness that are in place in case a person is required to renounce any other nationality, for the children of those who naturalise, and for the children born after a parent has naturalised. Any special efforts to facilitate access to naturalisation are considered under indicator 8.

Score available: 8

Eswatini scores 2,5 out of 8. Like the other pilot countries it does not make provision for facilitated access to naturalization of refugees and stateless persons. Importantly, it reserves naturalization through marriage for women marrying Swazi men.

Somewhat Negative

This indicator considers the formal legal provisions for loss and deprivation of nationality. Arbitrary denial of nationality is rather considered under indicator 7, which looks at implementation of the law in practice.

The most detailed international guidance on loss and deprivation of nationality is provided by the 1961 Convention on the Reduction of Statelessness (which uses ‘loss’ to mean withdrawal of nationality that is automatic, by operation of law; and ‘deprivation’ to mean withdrawal that is initiated by an act of the executive branch). These standards must now be interpreted in light of later human rights law – as set out in UNHCR’s Guidelines on Statelessness No.5, on Loss and Deprivation of Nationality.

Neither loss nor deprivation of nationality should result in statelessness. One of the most common ways in which loss of nationality can result in statelessness is when dual nationality is not permitted, even for a person who is born with two nationalities (for example, because the parents have different nationalities). Whether this is applied to children, or only on attaining majority, a person may be left stateless if there is a presumption that another nationality has been acquired but there is no verification that the other state recognises the nationality of the person in practice.

Score available: 1

Eswatini scores – 0,5 out of 1. The law includes a safeguard against statelessness upon deprivation. The law does not make provision for the deprivation of citizenship of children. The law allows dual nationality.

Negative

The right to due process is enshrined in many international and African human rights instruments. In both cases, it considered that arbitrary denial of nationality, in case of a person previously recognised as a national, constitutes arbitrary deprivation.

The African Commission has held that Article 7(1) of the African Charter on the the right to have a cause heard applies to cases of deprivation or denial of nationality, and to a resulting deportation. The African Court on Human and People’s Rights has affirmed the views of the African Commission, and that the prohibition of arbitrary deprivation of nationality under Article 15 of the Universal Declaration of Human Rights is part of customary international law.

The questions for this indicator ask whether the constitution establishes the right not to be arbitrarily deprived of nationality, the right to due process in administrative decisions, and the right to court review of decisions by the executive branch.
In relation to the nationality law, they ask specifically whether administrative decisions must be reasoned and notified to the person concerned in writing, and whether the affected person has the right to make representations before loss or deprivation of citizenship takes effect.

In relation to administrative or judicial review of a decision, the questionnaire asks whether the fact that a person holds a document recording nationality is prima facie evidence that he or she is in fact a national, whether there is an administrative review, and the availability of appeal to national human rights institutions or the courts, and to legal assistance.

Score available: 8

The Kingdom of Eswatini scores 2,5 out of 8 for due process in nationality decisions. The Constitution has the general right to administrative justice, but the citizenship act doesn’t make provision for reasons to be given in decisions around nationality, for instance. Where a person’s case may be heard before the Citizenship Board, this is appointed by the government, and there is no independent oversight body.

Somewhat Negative

This indicator considers, first, the existence of procedures to determine nationality of children and adults whose nationality is currently unknown (whether through recognition of existing nationality or naturalisation in the state of residence, or recognition of a different nationality); and secondly, the establishment of a statelessness determination procedure and protection of stateless persons.

The indicator thus places greater weight on the determination of a person’s nationality, with protection as a stateless person proposed only if nationality cannot be determined or granted, and as a temporary status, pending resolution of nationality.

The indicator recognises as best practice the legal provision in several states in Africa for recognition by a court of a person’s ‘apparent status’ as a national, where nationality is undocumented by a person has always acted and been treated as a national.
The indicator also recognises special efforts that are made by states to identify populations that are stateless or at risk of statelessness and resolve their status.

Score available: 17

The Kingdom of Eswatini scores 0 out of 17. If the state’s pledges are fulfilled, this may well change significantly by 2024.

Negative

The Kingdom of Eswatini has made a significant number of pledges and with regard to gender equality in law, amongst others.

They earn 4 extra points. They have pledges to rewrite the national citizenship law to be in line with the constitution but also with international standards on gender equality in nationality laws. Eswatini’s poor score in the GEL indicator may well soon be significantly increased if they are able to follow through on their pledges.

Eswatini has made 4 pledges at the High-Level Segment on Statelessness in 2019. These pledges were also incorporated into the pledges at the Global Refugee Forum in December 2019. They are as follows:

1. The Government of the Kingdom of Eswatini hereby commits to introducing a provision in our nationality law to grant nationality to all children of unknown origin found in our territory and those born in our territory who would otherwise be stateless by 2024.
2. The Government of the Kingdom of Eswatini hereby commits to undertake national consultations on gender equality in nationality laws and initiating the necessary reforms to uphold citizens’ equal ability to confer nationality on spouses and children by end of 2024.
3. The Government of the Kingdom of Eswatini hereby commits to establish by 2022 a procedure to determine the status of stateless migrants in line with the 1954 Convention.
4. The Government of the Kingdom of Eswatini hereby commits to undertake and publish a qualitative and quantitative study by 2021 to better understand the situation of groups and individuals who are stateless or at risk of statelessness in the territory with a view to finding a solution to their situation.