The response of the Sudanese government to the secession of South Sudan from Sudan in 2011 has created a population of several hundred thousand people perceived to be of southern origin at risk of statelessness in Sudan. The Sudanese government has chosen to withdraw recognition of nationality from anyone it interprets to have acquired South Sudanese nationality (whether or not the person has in fact made any attempt to claim South Sudanese nationality). Meanwhile, the new South Sudanese nationality law provides a very broad definition of South Sudanese nationality, and attributes nationality automatically to people resident outside the territory. Many people with no real connection to South Sudan are no longer recognized as Sudanese.
Sudan had a unique status during the period of European empires in Africa, as a British-Egyptian condominium from 1899 to 1956. Under this regime, the Arabic language and Islam were dominant in the north; in the south, the British permitted Christian missionaries to operate.
The 1948 Definition of Sudanese Ordinance defined a Sudanese as ‘every person of no nationality [thus excluding British, Egyptian and other nationals] who … is domiciled in Sudan and (i) has been so domiciled since 31 December 1897, or else whose ancestors in the direct male line since that date have all been so domiciled’. This formulation influenced the wording of subsequent laws on nationality through its emphasis on establishing a connection through a male ancestor to a specific date.
Sudan gained independence in 1956, and the 1957 Nationality Act provided citizenship to be attributed based on paternal descent through male ancestors who had been resident in Sudan since 31 December 1897. The new state was swiftly engulfed in civil war, as the south rebelled against northern domination. A 1972 peace agreement led to a decade of relative peace as a degree of autonomy was given to the southern region; the 1957 Nationality Act was also amended in 1972 to change the date a male ancestor should be established in Sudan to 1 January 1924.
However, in 1983, the civil war was reignited as the government adopted a policy of Islamicization, including the imposition of shari’a law in the north, and revoked the southern region’s autonomous powers. A series of unstable governments ended in 1989 when a coup d’état brought Omar al-Bashir to power. A new nationality law adopted in 1994 (initially as a military decree of 1993) maintained the rule of paternal descent, but changed the date of establishment in Sudan to 1 January 1956, the date of independence. In 1998, a new constitution was adopted which removed gender discrimination in transmission of nationality to children, providing that ‘Everyone born of a Sudanese mother or father has the inalienable right to Sudanese nationality, its duties and obligations. Everyone who has lived in Sudan during their youth or who has been resident in Sudan for several years has the right to Sudanese nationality in accordance with the law’. This was not, however, translated into an amended version of the 1994 nationality law.
The civil war continued with brutal effects. Peace negotiations resumed in 2002 and finally brought the war to an end in 2005, with the adoption of a detailed Comprehensive Peace Agreement (CPA). The CPA provided for a five-year transition period, during which the south would have a degree of autonomy, followed by a referendum on independence. (Meantime, however, a further rebellion had broken out in 2003 in Darfur, in the west of northern Sudan.)
The CPA provided that ‘the people of South Sudan have the right to self-determination’. This right was also enshrined in interim constitutions for Sudan and Southern Sudan that followed the peace agreement. The Interim Constitution for Southern Sudan and the legislation establishing the eligibility for individuals to vote in the referendum on the independence of South Sudan provided two parallel rules, one based on membership of one of the ‘indigenous communities of southern Sudan’, the other on residence in southern Sudan since 1956. The 1994 Sudanese nationality law was also amended in 2005, in response to the CPA and the adoption of the Interim National Constitution, and for the first time gave the child of a Sudanese woman and foreign father the right to apply for nationality (although not the automatic conferral of nationality by operation of law, as for the child of a Sudanese father).
The referendum was held in early 2011, and resulted in an overwhelming vote for independence of the South. Six months later, in July 2011, South Sudan split from Sudan to form a new state.
The parties failed to reach any agreement on attribution of citizenship during the transitional period. Both states moved separately to introduce laws and procedures on nationality.
Article 8 of the new South Sudanese Nationality Act provided for nationality to be attributed to an individual on very broad grounds: including if ‘(a) Any parents, grandparents or great grandparents on the male or female line were born in South Sudan; (b) Such person belongs to one of the indigenous tribal communities of South Sudan’ (other articles provided for rights based on residence since 1956).
On 19 July 2011, the National Assembly of the Republic of Sudan adopted amendments to the Sudan Nationality Act 1994. New section 10(2) provided that: ‘An individual will automatically lose his Sudanese nationality if he has obtained, de jure or de facto, the nationality of South Sudan.’ A minor child of an affected parent would also lose his or her nationality. Sudan had permitted dual nationality in most cases since an amendment to the law adopted in 1993; the new amendment created the extraordinary situation where dual nationality was allowed with every other country in the world except for South Sudan. In addition, the question of whether the person was a dual national would be determined by Sudan’s interpretation of South Sudanese law, rather than any consideration of whether the person had sought recognition of South Sudanese nationality or would be able to establish it.
Southerners resident in the north began to be dismissed from employment in the civil service and in the private sector, while their children were refused registration in school and treatment in public health clinics. In practice, the decision of whether someone had ‘obtained the nationality of South Sudan’ was often based on subjective perceptions based on language, last name, and skin colour. Little or no distinction was made between recently arrived internal migrants or displaced persons, and members of families resident for generations in the north.
Faced with this situation, several hundred thousand people of southern origin who were resident in the Republic of Sudan had already headed south since the date of the referendum, on their own or with the assistance of the United Nations (UN) and International Organization on Migration (IOM); tens of thousands of others who had made the first steps to returning, selling their homes and many of their possessions, found themselves stuck in temporary camps without the resources to continue their journey. Others did not move, since they considered themselves Sudanese.
In 2012, the two governments signed a ‘Four Freedoms’ agreement, establishing rights for the nationals of one state in the other to freedom of movement, residence, economic activity and to acquire and dispose of property. However, there was no agreement on the determination of nationality in case of doubt. The Sudanese courts began to hear cases brought to challenge denial of nationality to those with one parent from either side of the border, denied recognition despite the constitutional guarantees of gender equality in transmission of nationality in place since 1998. There was some limited success, but no conclusive reform of the law by the end of 2017.
In late 2013, the breakdown of the South Sudanese government put an end to all further negotiations between the two sides. Tens of thousands of people displaced from the renewed fighting in the south once again streamed into the north — but this time as cross-border refugees, rather than as internally displaced persons, as they had been prior to 2011.
The changes to the Sudanese Nationality Law providing for automatic loss of nationality to any person presumed to have acquired South Sudanese nationality left many at risk of statelessness. Those particularly affected were individuals of mixed parentage, and members of ethnic groups that straddle the border between north and south, as well as individuals belonging to ethnic groups perceived to be southern, but whose families had been resident in northern Sudan over many generations. A very substantial number of people resident in Sudan who, though perceived as ‘southern’ in origin, identified as Sudanese, spoke no language of South Sudan, and had no meaningful connection to South Sudan were also regarded as having acquired South Sudanese nationality, because of the extremely broad terms of the South Sudanese nationality law. They found themselves unable to obtain a Sudanese national identity card under a new system for civil registration introduced shortly after the secession of South Sudan. Even if these people had a theoretical right to South Sudanese nationality, many had no proof of a connection to South Sudan. Several hundred thousand people were arbitrarily deprived of Sudanese nationality in this way (based on UNHCR estimates of long-term displaced southerners remaining resident in the north), of which a substantial though unknown number also became stateless.
The Sudanese government should reverse the changes made to the Sudanese Nationality Act in 2011. While international law is neutral on the point of dual nationality, due process is required before a person loses nationality, and confirmation that the person affected has in fact acquired another nationality. That is, if a person has a right to South Sudanese nationality in theory, he or she should only be deprived if they have actually taken up that right and obtained confirmation of nationality from the South Sudanese authorities. There is thus also a need for a joint mechanism between Sudan and South Sudan to determine nationality in case of doubt, and for an automatic right of court review of decisions made in these cases.
Updated November 2017
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