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THE RIGHT TO NATIONALITY AND ECOWAS CITIZENSHIP YUSUF G. DANMADAMI ESQ. THE COMMUNITY COURT OF JUSTICE, ECOWAS ABUJA - NIGERIA.

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Presentation on theme: "THE RIGHT TO NATIONALITY AND ECOWAS CITIZENSHIP YUSUF G. DANMADAMI ESQ. THE COMMUNITY COURT OF JUSTICE, ECOWAS ABUJA - NIGERIA."— Presentation transcript:

1 THE RIGHT TO NATIONALITY AND ECOWAS CITIZENSHIP YUSUF G. DANMADAMI ESQ. THE COMMUNITY COURT OF JUSTICE, ECOWAS ABUJA - NIGERIA

2 WHY THE RIGHT TO NATIONALITY THE RIGHT TO A NATIONALITY IS OF PARAMOUNT IMPORTANCE TO THE REALIZATION OF OTHER FUNDAMENTAL HUMAN RIGHTS, CIVIL RIGHTS AND ACCESS TO PUBLIC SERVICES. NATIONALITY IS THE LEGAL RELATIONSHIP BETWEEN A PERSON AND STATE. POSSESSION OF A NATIONALITY CARRIES WITH IT THE DIPLOMATIC PROTECTION OF THE COUNTRY OF NATIONALITY AND IS ALSO OFTEN A LEGAL OR PRACTICAL REQUIREMENT FOR THE EXERCISE OF FUNDAMENTAL RIGHTS. CONSEQUENTLY, THE RIGHT TO A NATIONALITY HAS BEEN DESCRIBED AS THE “RIGHT TO HAVE RIGHTS” AS SEEN IN TROP V. DULLES, 356 U.S. 86, (1958).

3 RELATED INTERNATIONAL INSTRUMENTS ON HUMAN RIGHTS ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS STATES THAT “EVERYONE HAS THE RIGHT TO A NATIONALITY” AND THAT “NO ONE SHALL BE ARBITRARILY DEPRIVED OF HIS NATIONALITY NOR DENIED THE RIGHT TO CHANGE HIS NATIONALITY.” ARTICLE 20 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS. ARTICLE 7 OF THE CONVENTION ON THE RIGHTS OF THE CHILD. ARTICLE 5 OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION. INTERNATIONAL COVENANTON CIVIL AND POLITICAL RIGHTS

4 THE AFRICAN CHARTER PERSPECTIVE NO PROVISION FOR A RIGHT TO NATIONALITY AS SEEN IN THE UNIVERSAL DECLARATION ON HUMAN RIGHTS AND OTHER INTERNATIONAL HUMAN RIGHTS INSTRUMENTS. HOWEVER, IT PROVIDES THAT EVERY INDIVIDUAL SHALL BE ENTITLED TO THE ENJOYMENT OF THE RIGHTS, AND FREEDOMS RECOGNIZED AND GUARANTEED IN THE PRESENT CHARTER WITHOUT DISTINCTION OF ANY KIND SUCH AS RACE, ETHNIC, GROUP, COLOR, SEX, LANGUAGE, RELIGION, POLITICAL OR ANY OTHER OPINION, NATIONAL AND SOCIAL, ORIGIN, FORTUNE, BIRTH OR OTHER STATUS. THEREFORE, TO DEPRIVE A PERSON A RIGHT TO A NATIONALITY DUE TO RACE, ETHNIC, ORIGIN ETC. CAN VERY WELL BE VIEWED AS DISCRIMINATION AGAINST THE PERSON AND THEREFORE A VIOLATION OF HIS/HER HUMAN RIGHTS UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS. THE ALLEGED DISCRIMINATORY PRACTICE CAN VERY WELL BE LITIGATED UPON BASED ON THE GROUNDS OF VIOLATIONS OF HUMAN RIGHTS.

5 GENERAL CONSENSUS DESPITE RECOGNITION OF THE RIGHT TO NATIONALITY, AN ESTIMATED 12 MILLION PEOPLE CURRENTLY DO NOT HAVE A NATIONALITY. STATELESSNESS IS A GLOBAL PROBLEM. STATELESSNESS HAS TAKEN AN INTERNATIONAL DIMENSION AND THEREFORE NO LONGER WITHIN THE EXCLUSIVE DOMESTIC REALM. IT APPEARS THAT THE GENERAL CONSENSUS IS THAT THE RIGHT TO A NATIONALITY IS NOW A HUMAN RIGHT. THEREFORE IT IS IMPERATIVE TO NOTE HERE THAT IMPORTANT JUDICIAL PRONOUNCEMENTS WILL GENERALLY LEAD TO LEGISLATIVE AMENDMENTS AND CHANGE IN GOVERNMENT POLICIES.

6 THE ECOWAS COURT THE COURT IS A HUMAN RIGHTS COURT. THE COURT HAS JURISDICTION ON HUMAN RIGHTS MATTER. IT’S PROTOCOL DID NOT PRESCRIBE THE APPLICABLE HUMAN RIGHTS INSTRUMENTS TO BE APPLIED. ECOWAS DOES NOT HAVE A DISTINCT BILL OF RIGHTS OR HUMAN RIGHTS INSTRUMENT. THE COURT, APPLIES THE PROVISIONS OF THE AFRICAN CHARTER BY REFERENCE TO ARTICLE 4(G) OF THE ECOWAS REVISED TREATY AND AS WELL AS ANY OTHER HUMAN RIGHTS INSTRUMENT ADOPTED AND RATIFIED BY A MEMBER STATE AGAINST IT. ARTICLE 9 (4) OF THE 2005 SUPPLEMENTARY PROTOCOL GIVES THE COURT, JURISDICTION TO DETERMINE CASES OF VIOLATION OF HUMAN RIGHTS THAT OCCUR IN ANY MEMBER STATE. THEREFORE, ISSUES OF NATIONALITY RELATING TO VIOLATION OF HUMAN RIGHTS CAN AND SHOULD BE ADDRESSED BY THE COURT, PARTICULARLY IN REGARDS TO ARTICLE 9 (4) OF THE 2005 SUPPLEMENTARY PROTOCOL.

7 CITIZENSHIP CITIZENSHIP CAN BE SAID TO BE THE BEDROCK OF NATIONHOOD. EVERY NATION HAS WITHIN ITS TERRITORY, PERSONS WHO OWE ALLEGIANCE TO IT, WHO HAVE A STAKE IN ITS EXISTENCE AND TO WHOM THE NATION OWES SOME OBLIGATIONS, WHICH ARE USUALLY EMBEDDED IN THE CONSTITUTION. THIS IDEA IS APTLY CAPTURED BY T.H MARSHALL IN HIS SEMINAR WORK, CITIZENSHIP AND SOCIAL CLASS (1950) WHERE HE DEFINED CITIZENSHIP AS A STATUS BESTOWED ON THOSE WHO ARE FULL MEMBERS OF A COMMUNITY. ALL WHO POSSESS THE STATUS, ARE EQUAL WITH RESPECT TO THE RIGHTS AND DUTIES WITH WHICH THE STATUS IS ENDOWED. CITIZENSHIP GENERALLY IS CONTEXTUALIZED WITHIN THE MILIEU OF NATIONAL/MUNICIPAL LAWS. EVERY COUNTRY OF THE WORLD HAS ITS OWN POLICIES, PRINCIPLES AND LEGISLATION ON THE ACQUISITION, RIGHTS, LIABILITIES AND LOSS OF CITIZENSHIP. FROM THE ONSET, IT BECAME CLEAR THAT CITIZENSHIP CARRIED WITH IT A HOST OF PRIVILEGES.

8 ECOWAS CITIZENSHIP ECOWAS CITIZENSHIP BELONGS TO AN ALTERED CATEGORY OF CITIZENSHIP IN VIEW OF THE FACT THAT ECOWAS IS A SUPRANATIONAL ORGANIZATION, ENCOMPASSING VARIOUS MEMBER STATES EACH WITH ITS OWN CITIZENSHIP REGIME THUS, CITIZENSHIP RULES DO NOT BELONG IN AN ABSTRACT, SEPARATE COMPARTMENT THAT IS PECULIAR TO ECOWAS QUA THE REGIONAL BODY THAT IT IS. THE SITUATION HAS NOT CHANGED, BECAUSE ECOWAS AS AN ORGANIZATION, DOES NOT IN A STRICT SENSE ENJOY THE RIGHT TO CONFER CITIZENSHIP ON AN INDIVIDUAL AS WOULD A MEMBER STATE.

9 ECOWAS CITIZENSHIP ECOWAS CITIZENSHIP IS THEREFORE INEXTRICABLY INTERTWINED WITH THE CITIZENSHIP OF A MEMBER STATE AND THE PROTOCOL HAS LAID OUT THE DIFFERENT MEANS BY WHICH ECOWAS CITIZENSHIP CAN BE ACQUIRED. THE MEANS OF ACQUISITION OF ECOWAS CITIZENSHIP ARE CLEARLY SPELT OUT IN ARTICLE 1 OF THE PROTOCOL RELATING TO THE DEFINITION OF COMMUNITY CITIZEN THE PROTOCOL ON DEFINITION OF ECOWAS CITIZENSHIP OUTLINES THE VARIOUS CATEGORIES OF PERSONS WHO ARE REGARDED AS ECOWAS CITIZENS AND INHERENTLY ENCAPSULATES THE MODES OF ACQUISITION.

10 ECOWAS CITIZENSHIP THE DEFINITION SIMPLY STATES THE JURIDICAL PRINCIPLE, WHILE ACQUISITION LAYS OUT THE CONTEXTUAL FRAMEWORK – I.E., LOOKING AT CITIZENSHIP WITHIN THE CONTEXT OF THE PARAMETERS ENSHRINED IN ARTICLE 1A AND 1B. CITIZENSHIP OF A MEMBER STATE IS THE PRIMARY BASIS FOR ALL THE ECOWAS CITIZENSHIP RIGHTS. THE CITIZENSHIP REQUIREMENTS OF ECOWAS ARE INEVITABLY LINKED WITH THOSE OF THE VARIOUS MEMBER STATES BECAUSE AS A SUPRANATIONAL ORGANIZATION, ECOWAS DOES NOT EXIST SEPARATELY FROM THE MEMBER STATES.

11 ECOWAS CITIZENSHIP ARTICLE 1 OF THE PROTOCOL A/P3/5/82 RELATING TO THE DEFINITION OF COMMUNITY CITIZEN PROVIDES THAT A CITIZEN OF THE COMMUNITY IS: (A) ANY PERSON WHO IS A NATIONAL BY DESCENT OF A MEMBER STATE AND IS NOT A NATIONAL OF ANY NON-MEMBER STATE OF THE COMMUNITY; (B) ANY PERSON WHO IS A NATIONAL BY BIRTH OF ANY OF THE MEMBER STATES EITHER OF WHOSE PARENTS IS A NATIONAL BY SUB-PARAGRAPH (1) ABOVE PROVIDED THAT SUCH A PERSON ON ATTAINING THE AGE OF 21 DECIDES TO TAKE UP THE NATIONALITY OF THE MEMBER STATE( PROVISO: A PERSON HAVING DUAL NATIONALITY AND WHO HAD ATTAINED THE AGE OF 21 YEARS BEFORE THE COMING IN FORCE OF THIS PROTOCOL SHALL RENOUNCE THE NATIONALITY OUTSIDE THAT OF THE COMMUNITY);

12 ECOWAS CITIZENSHIP (C) I. ANY ADOPTED CHILD WHO AT BIRTH IS NOT A CITIZEN OF THE COMMUNITY OR WHOSE NATIONALITY IS UNKNOWN BUT EXPRESSLY TAKES UP THE NATIONALITY OF HIS ADOPTIVE PARENT WHO IS A COMMUNITY CITIZEN ON ATTAINING THE AGE OF 21; II. AN ADOPTED PERSON WHO HAS ALREADY ATTAINED MATURITY BEFORE THE COMING INTO FORCE OF THIS PROTOCOL AND OF DUAL NATIONALITY MUST RENOUNCE THE NATIONALITY OF ANY STATE OUTSIDE THE COMMUNITY; III. ANY CHILD ADOPTED BY A CITIZEN OF THE COMMUNITY, PROVIDED THAT THE CHILD HAS NOT ATTAINED HIS MATURITY TO DECIDE ON THE NATIONALITY OF HIS OWN CHOICE;

13 ECOWAS CITIZENSHIP (D) A NATURALIZED PERSON OF A MEMBER STATE WHO HAS BEFOREHAND MADE A FORMAL APPLICATION AND SATISFIES THE FOLLOWING CONDITIONS: I. HAD RENOUNCED THE NATIONALITY OF ANY STATE OUTSIDE THE COMMUNITY AND SUCH RENUNCIATION IS EXPLICITLY SUPPORTED BY AN ACT OF DULY AUTHENTICATED BY THE APPROPRIATE AUTHORITIES OF THE COUNTRY OR COUNTRIES WHOSE NATIONALITY OR NATIONALITIES HE FORMERLY ENJOYED AND II. PERMANENT ESTABLISHMENT OF ABODE ON THE TERRITORY OF A MEMBER STATE WITHOUT ANY SUBSEQUENT TRANSFER TO ANY STATE FOR A CONTINUOUS PERIOD OF FIFTEEN (15) YEARS PRECEDING HIS APPLICATION FOR COMMUNITY CITIZENSHIP.

14 OBSERVATIONS THE PROTOCOL ON THE ECOWAS CITIZENSHIP DOES NOT PERMIT DUAL NATIONALITY EVEN THOUGH A NUMBER OF MEMBER STATES HAVE AMENDED THEIR CONSTITUTIONS TO RECOGNISE SAME. THE PROTOCOL ON THE DEFINITION OF ECOWAS CITIZENSHIP INCLUDES OTHER ONEROUS REQUIREMENTS WHICH THE PROTOCOL FAILED TO CLARIFY. THIS LACK OF CLARITY MAKES THE REQUIREMENTS SUPERFLUOUS. IT REMAINS THE OPINIONS OF SOME LEGAL SCHOLARS THAT ONCE A PERSON HAS A VALID CITIZENSHIP OF A MEMBER STATE, FURTHER CONDITIONS SHOULD NOT BE IMPOSED WITHOUT PREJUDICE TO THE LEGAL CONDITIONS FOR LOSS OF CITIZENSHIP.

15 WHILE I AM NOT DISCUSSING STATELESSNESS, I STATE HERE THAT ECOWAS CITIZENSHIP AS WE HAVE IT TODAY IS NOT IN A POSITION TO ADDRESS STATELESSNESS. I MAKE BOLD TO SAY THAT IN ACTUAL FACT ENCOURAGES STATELESSNESS RATHER THAN REDUCE SAME. FOR THREE REASONS WHICH ARE FIRSTLY, ECOWAS CITIZENSHIP IS TIED TO THE WHIMS AND CAPRICE OF THE MEMBER STATES WHO ARE THE ACTUAL VIOLATORS OF STATELESS PERSONS. SECONDLY THE REFUSAL OF DUAL NATIONALITY AND THIRDLY THE MANDATORY LEGAL CONDITION TO RENOUNCE THE NATIONALITY OF A NON- MEMBER STATE OF THE COMMUNITY.

16 CONCLUSION THE PROTOCOL ON ECOWAS CITIZENSHIP IS CONSTRAINED ON ALL SIDES BY RULES, REGULATIONS AND NATIONAL LEGISLATION. THE EXISTING MODEL OF ECOWAS CITIZENSHIP MUST BE IMPROVED UPON TO MEET ACCEPTABLE REGIONAL AND INTERNATIONAL BEST PRACTICES. I HAVE NOT MADE AN EXHAUSTIVE DISCUSSION ON THE TOPIC BUT DUE TO TIME CONSTRAINTS I HAVE JUST RAISED ISSUES TO PROVOKE THE DISCUSSION. I MERELY INTENDED TO INCITE THE DEBATE.

17 THANK YOU


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