Challenging Discriminatory Legislation in Sudan Using African Legal Architecture
Published: 14 Oct 2015
By: Sophie Chiasson
Imagine you are born in a country, to parents who were also born in that country, and all your life you believed you were a citizen of that country – with all the rights that go along with it. Then, one day when you apply for a standard identification document, you are told you are a “foreigner” in the only place you have ever lived.
This is what happened to Iman Hasan Benjamin, when, at age 17, she applied for her national identification number, a document needed to enrol in university. Iman was told she was no longer a Sudanese citizen primarily because her father’s last name indicated he was from South Sudan – even though he had died six months before South Sudan even existed as a country.
Unlike many in the same situation, Benjamin challenged this denial of her citizenship in the courts. However, when she took her case to the Sudanese Constitutional Court, the court ruled that the automatic revocation of a minor’s Sudanese citizenship was constitutional within the bounds of the law. The law the court affirmed as constitutional, Article 10(2) of the Sudanese Nationality Act 1994 (SNA)(amended 2011) deprives habitual residents of Sudan of their Sudanese nationality if they are believed to have acquired “de jure or de facto” the citizenship of South Sudan, without any right to contest the decision. This law appears to be deliberately targeted at the several hundred thousand people who are seen by the government of Sudan as being from the newly created state of South Sudan, even if they have only weak ties to the country.
ACJPS, along with another Sudanese organisation, are taking up the fight at the regional level, challenging the constitutional court decision at the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The complaint, submitted on 19 August, seeks redress for Iman and asking ACERWC to find a violation of her right to nationality. The case is also asking them to make a recommendation to the government of Sudan to amend its current citizenship legislation so that it is in line with international standards, protects the rights of minors, prevents the risk of statelessness and prohibits discrimination. Like IRRI and CRAI, these organisations understand that arbitrary and unequal access to citizenship is a major human rights problem that leads to the denial of a host of other rights.
Why was Iman’s Sudanese citizenship revoked?
Iman was born in the village of Wad Kaamil, a suburb of Al-Hasaheisa town in the east of Sudan. Iman’s mother, Hawa Ibrahim Abd al-Karim, is Sudanese from the Daju tribe. Her father, Hasan Benjamin Daoud, was born in Juba and belonged to the Baria tribe of Southern Sudan. Hasan lived in Al-Hasaheisa town for most of his life, where he married and served in the police force. He died on 29 January 2011 – six months before South Sudan seceded from the rest of the country. His death certificate, issued by Khartoum Hospital, states that his nationality was Sudanese.
After undertaking her preliminary education in Al-Hasaheisa town and then attending secondary school at the Ameed Private School in Al-Haj Yousif, a suburb of North Khartoum, Iman decided she wanted to go to university. In Sudan, a national identification number is required in order to apply for post-secondary education. Iman, however, like many people in Sudan, did not have one. When she went to apply for this document, the Civil Registry Department directed her to the Aliens Department on the grounds that her father had become a foreigner on 18 July 2011, the date South Sudan seceded from Sudan, even though Iman’s father had died six months before secession and despite the fact that he had died as a Sudanese citizen (as stated on his death certificate).
It appears that the Civil Registry Department’s determination of Iman’s citizenship was based primarily on her last name, even though she had taken no steps to acquire South Sudanese citizenship and did not wish to do so. The revocation of Iman’s citizenship was justified by Article 10(2) of the SNA. It was this piece of legislation that Iman challenged at Sudan’s Constitutional Court on the grounds that it deprives her both of her constitutional right to nationality and her right to access higher education.
Under Sudanese law, dual nationality has been permitted with any other country (except Israel) since 1993, however, Article 10(2) of the SNA now provides that any individuals who acquire “de facto or de jure” the nationality of South Sudan shall automatically have his or her Sudanese nationality revoked. Further, and of more concern to thousands of children, Article 10(3) states that Sudanese nationality will be rescinded when the nationality of one’s “responsible father” is revoked pursuant to Article 10(2).
This significant legislation was enacted in August 2011 – only one month after the South Sudan Nationality Act 2011 (SSNA) was adopted on 9 July 2011 (and seven months after Iman’s father had died). The extremely broad provisions of the SSNA legislate that an individual will be considered a South Sudanese national “by birth” if they meet any of the following requirements: they have one parent, grandparent or great-grandparent born in South Sudan; they belong to one of the “indigenous ethnic communities of South Sudan”; or if they or their parents or grandparents have been habitual residents of South Sudan since 1956.
The implications of the denial of citizenship
The South Sudanese citizenship legislation is laudable in the sense that it offers protection to a large number of people. Taken together with the amendments to the SNA, however, the laws have extreme and far-reaching consequences. For example, because the SNA does not take into account where one resides, the legislation presumes all Sudanese of southern origin are also citizens of South Sudan. As such, a large number of people who have only weak ties to the south, have been automatically stripped of their Sudanese nationality on the basis of their qualification under the South Sudanese law, regardless of whether or not they want South Sudanese citizenship or have taken any positive steps to obtain it. If the law is applied in its broadest interpretation, an individual will automatically lose his or her Sudanese nationality if they have only one parent, grandparent, or even great-grandparent born in South Sudan. For children under 18 years of age, such as Iman, the child will lose his or her Sudanese nationality if his or her “responsible father” becomes South Sudanese pursuant to any provision of the SSNA. This provision is in contrast to the more progressive standards, enacted in more than half of African countries, which allow any child born on a country’s soil either to derive citizenship from birth or to claim citizenship upon reaching the age of majority.
Practically, the SNA legislation is also discriminatory on the basis of gender, as it deprives children under 18 of their Sudanese citizenship if the parent with legal custody (usually the father) is declared to be South Sudanese even if the other parent (usually the mother) is Sudanese. This runs counter to legislation in the majority of African states that allow men and women citizens equal rights to pass on their citizenship to their children and also to Sudan’s position on any other situation of a Sudanese mother with a father of any other nationality (bar Israel). Further, the amendment to the SNA violates the 2005 Interim National Constitution of Sudan, which mandates that any individual born to a Sudanese mother or father will have an “inalienable right” to Sudanese nationality and, with only the two exclusions, permits dual nationality.
In addition, the SNA creates situations where individuals are at risk of being left stateless. Since Sudanese authorities effectively have the power to interpret the provisions of the SSNA, they may decide an individual has met the threshold to obtain South Sudanese nationality even when this is not the case. If the individual is either denied South Sudanese citizenship or does not have the proper documentation to prove their South Sudanese citizenship, they risk becoming stateless. By introducing an ethnic dimension into the acquisition of citizenship, the SSNA also creates opportunities for statelessness as some may face difficulties meeting the evidentiary requirement.
The revocation of one’s citizenship can result in the loss of significant entitlements, including jobs in the public and private sectors, rights to housing, and access to clinics and, as in Iman’s case, education. Furthermore, without recognised citizenship, individuals are more vulnerable to a wide range of human rights abuses, including harassment by police, detention or deportation.
The filing of Iman’s case with the ACERWC signals a relatively novel technique being used in Africa to challenge the arbitrary denial of citizenship to individuals. In addition to ACERWC making a recommendation to the government of Sudan, advocacy and awareness raising around the case can help build support for the creation of new standards, including pushing countries to adopt regulations that respect due process and ensure no individual becomes stateless.
As IRRI has previously argued, inclusive legislation that supports equal access to citizenship will help resolve issues of forced displacement and will assist in reducing religious, ethnic and cultural tensions leading to a more stable state and region. In the case of Sudan, not only does the law manifestly fail to prevent statelessness, this discrimination is part of a broader pattern of discrimination against peripheral populations of Sudan, which has already led to conflict and mass violence. Although a decision of the ACERWC is unlikely to be implemented in the short term, it begins to build a new legal standard that can form the basis of a platform of action in the event that the political climate in Sudan becomes more open to reform.
 The legislation defines “responsible father” as “the father or the mother if guardianship was transferred to her by order of a competent court or if the child was born as a result of an unlawful relationship.”