Republic of Botswana

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 Republic of Botswana scores 7 out of 15,5 for the ratification of international instruments. It scores 2 points for being party to the 1951 Convention on the Status of Stateless Persons, but it has made reservations to this treaty and loses half its points in this matter.

It further is not party to several important treaties related to nationality rights, such as the Maputo Protocol, the UN Convention on the rights of people with Disabilities, the AU Free Movement protocol, and the SADC Gender and Development Protocol. Lastly, it has made reservations to the UN Convention on the Rights of the Child.

Somewhat Negative

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 Botswana scores 6,5 out of 15. The birth registration rate is above 80% and has increased in recent years, which gives Botswana some positive points.

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

Botswana scores 4,5 out 15 for prevention of statelessness at birth. Similar to Eswatini, it loses much of its score to the fact that it does not cater for stateless children born in the territory, nor does it provide for jus soli or delayed jus soli. What it makes up for in gender equality, it loses in lack of provisions to prevent statelessness.

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

Botswana scores a score of 4 out of 5 for gender equality in its laws. Unmarried fathers are not allowed to register children in the absence of the mother. A court case has been settled where such a father was allowed to register his child, but no policies or laws have been amended.

Positive

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

Botswana achieves only 1 out of 8 for this crucial category. No facilitated access to naturalisation is afforded to any of the relevant groups at risk, such as stateless persons and refugees, or those married to citizens.

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

Botswana scores -2.5 out of 1. Dual nationality is not allowed, and nationality is lost automatically where another nationality is not renounced at majority. AN additional 0.5 is deducted because there is no verification that the person is in fact recognised as a national of the other country. There is no safegaurd in cases of deprivation.

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

Botswana scores -0,5 out of 8 for due process in nationality law decisions. The Botswana Constitution does not make provision for the right not to be deprived of citizenship. There are few due process provisions with regard to nationality and the law specifically excludes judicial review.

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

Botswana scores 0 out of 17 for special initiatives to resolve undetermined nationality and protection of stateless persons.

Negative

The Government of the Republic of Botswana have not made any pledges toward the resolution and prevention of statelessness on any of the three relevant platforms. No additional points are scored here.