A problem which we don’t hear very much about is that of statelessness. It’s almost taken for granted that one automatically gains citizenship from their land of birth. This proves the oblivion in which we live. The complicated reality that exists for far too many who are not able to claim citizenship is a despicable fate suffered by so many in our world. The problems are unthinkably tragic and have disastrous consequences. Read on to hear what Fikile-Ntsikelelo Moya learned when he interviewed the family of a 7-year-old stateless child living in South Africa.
Do not be surprised if little Thabo* laughs when he or his stepmom Mary* hear, ‘according to South African law, the best interests of the child are paramount on all matters concerning the child.’ To them, a more plausible framing of that statement would be ‘only the best interests of children born of South Africans are paramount.
This is because 7-year-old Thabo cannot enrol for school. Every day he has to watch his siblings wake up, get ready and go to school while he spends the day at home in Musina near the South Africa-Zimbabwe border.
This is not due to Mary’s lack of trying to get Thabo into school.
Thabo was born in South Africa of a Zimbabwean mother and a South African father who never married.
His mother — who was undocumented — left him with his paternal grandmother when he was an infant and nobody knows what happened to her after she left.
As he was born of an undocumented foreign national, Thabo similarly is an undocumented child which means that he cannot inherit his father’s citizenship. He must live with his mother’s undocumented status.
As a consequence of this he cannot be enrolled at the local school because schools require children to have a birth certificate, proof of guardianship and/or custody as well as a record of immunisations depending on the child’s age.
One would think that all those requirements would be no big deal for a child with a father and a dedicated mother-figure in his life like Thabo has. Sadly this is not the case.
As a South African citizen alleging to be the father of a child born to a foreign national, Thabo’s dad must submit himself and his child for a paternity test to prove his claim that he is indeed Thabo’s biological father.
So why not do a paternity test and be done with it? It is not as easy as it sounds.
Only state accredited laboratories are allowed to do the tests and not every town has one. They are not cheap either.
“You need to travel to Polokwane, about 200km away, to do the test. What’s more, the test costs about R2,000. All in you probably need around R3,000 just to get the test done. My husband does not earn that much so it is not easy for him to go there.”
“It breaks my heart to see him so sad because he cannot go to school like the other kids. It hurts me to see a child cry,” says Mary who has two other children — one older and another younger than Thabo — both of whom are documented and therefore able to go to school.
“I want him to get an education like all other children. I just want him to be like any other kid. His being at home hurts me so much.”
Thabo is but one of an unknown number of children across South Africa for whom the scripture about the iniquities of the fathers (and mothers) being visited on the children seems to be true.
It has become a common sight in border towns like Musina to find children who have arrived in South Africa as refugees. Sometimes they are accompanied by their parents and other times the situation even far worse and they arrive on their own.
For many of these children the hardships they have to go through to get what they need to go to school makes a mockery out of South Africa’s intentions as a signatory to the Convention on the Rights of the Child.
For children like Thabo, of whom there are countless others, their lived experience does not reflect the four core principles of the Convention which are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child.
Lawyers for Human Rights (LHR) earlier this year started a crowdfunding initiative to help raise money for DNA tests or to apply for necessary documentation. The initiative is intended to help vulnerable children like Thabo, orphaned and stateless children, and those who came to South Africa unaccompanied. But the problem remains and though some may get the help they need the funds raised can’t eradicate the systemic problems of a stateless childhood as the LHR has outlined.
LHR says: “Some vulnerable children are required to do DNA tests to get birth certificates, but it costs R1,400 – R2,100. Abandoned and orphaned stateless children are required to pay R1,350 to apply for a visa allowing them to go to school.”
Recent court decisions suggest that there just might be a glimmer of hope for the likes of Thabo and his family.
A North Gauteng High Court judge recently accused the Department of Home Affairs (DHA) of violating human rights after refusing to grant citizenship to children born to undocumented mothers but whose fathers are South African.
Independent Media Group reported a scathing judgment delivered at the North Gauteng High Court. “Acting Judge Moses Mphaga has ordered the department to ‘forthwith register the birth’ of a 4-year-old child of a Joburg father and a Chinese female immigrant whose stay in the country is illegal.”
The department had relied on its own internal policy for refusing to register the birth of the child. This policy states:
“When the mother of a child born in South Africa is an illegal refugee or illegal immigrant, the child will only be issued with a handwritten recognition of birth certificate, as the child is not a South African citizen.
“When one of the parents is an illegal refugee or illegal immigrant, the child cannot be registered on the Birth Registry, as the system would then automatically issue the child with a South African identity number which it [sic] does not meet the requirements.”
Judge Mphaga said this policy contradicted a section of the Citizenship Act that grants automatic citizenship to children born in or outside the country to parents of whom one is South African.
“Accordingly there can be no valid reason for the department to rely on an internal policy which effectively refuses to recognise the South African citizenship of the applicants’ child”, he said.
This was the second ruling within two weeks against Home Affairs for denying citizenship to children of local men and undocumented mothers. In a judgment delivered at the High Court in Grahamstown in the Eastern Cape, Acting Judge Apla Bodlani ruled in favour of a defence force member and his Congolese wife.
In the meantime Thabo and his mother are still left to wait. First to raise the money to go to Polokwane and then for the bureaucracy to decide that Thabo should not be left to suffer and go unschooled for a day more because of the decisions of his parents.
*Not their real names.