By Liesl Muller
South Africa’s 1994 elections paved the way for all citizens to enjoy the human rights flowing from equal citizenship but rumours of the deficient pre-electoral registration of the previously disadvantaged have been wholly disregarded in the wake of apartheid’s fall. The effects of rushed registration policies have caught up with us and an urgent response is needed to avoid a potential nationality crisis.
The department of home affairs’ recent attempts to tidy up the population register have left many South Africans, not only unequal, but stateless and without recourse. Home affairs has launched a campaign to eliminate duplicate and fraudulently obtained identity numbers. More than 500 000 potential duplicate or multiple ID cases were initially identified and the ID numbers were “blocked”.
A blocked ID equates to someone being deprived of nationality and denied access to basic rights while their status is investigated.
As for fraudulently obtained ID numbers, officials routinely block ID numbers upon mere suspicion of the person being a “foreigner”. Fraudsters and innocents alike are being deprived of nationality until they can prove their identities. Due to strict documentary requirements, many are unable to prove their heritage. The initiative, in principle a praiseworthy effort, simultaneously poses a direct threat to the right to nationality.
Inadequate civil registration pre-1994
Birth registration has been compulsory for all races in urban areas but voluntary for Africans in rural areas since 1923. Africans were largely excluded from the population register pre-1994 and of those entered into the system, many were recorded incorrectly. It was only in 1986 that legislation made provision for all groups to be included. As a result there is very little documentary proof of births and identity preceding democracy.
In the run-up to elections, there was a scramble to put people on the register to allow them all to vote. The resulting chaos meant a significant number of wholly undocumented people had to be registered, “dompas” numbers had to be translated into regular ID numbers and a great number of people from the TBVC-states had to be incorporated into the population register.
Those who had “dompas” numbers, were automatically allocated new ID numbers without their knowledge. In a 2012 progress report by the home affairs director general, it was explained that people whose reference book numbers were changed into ID numbers often were not informed, and so applied for and received other ID numbers resulting in them holding two ID numbers. This is what is referred to as multiple ID numbers. A duplicate ID refers to the situation when one ID number was given to two different persons.
Applicants falling into this ad hoc regularisation process often reported that ID numbers were issued without needing proof of birth. Because these births were not adequately registered, they face potentially insurmountable challenges if asked to prove their nationality.
Home affairs recently announced that all duplicate ID numbers would be cancelled by December 2013 if the holders did not come forward and prove their right to South African citizenship. Given our country’s history and poverty, it is unreasonable and racially discriminatory to announce the cancellations and expect all affected persons to be informed and to be able to provide extensive documentary proof of their birth pre-1994.
Suspected fraudulent IDs
The practice of blocking ID numbers in suspected fraud cases has risen. The situation has deteriorated to such an extent that officials have begun arbitrarily seizing ID documents of unsuspecting citizens upon mere suspicion of being a “foreigner”. Citizens find themselves stripped of nationality without due process as they apply for passports or new ID books using the same ID number they had been using for the last 20 years. They are often not supplied with written reasons for the blocking of their ID and are oblivious to available remedies. The only direction they are provided with is a long list of supporting documents that are often impossible to obtain. It is virtually impossible to get home affairs to answer a request for reasons or to finalise an investigation quickly, putting the affected person’s life on hold indefinitely.
Present concerns
In July 2013 the home affairs minister announced the roll-out of new smart ID cards. It is likely the necessary conversion process will result in many more IDs being blocked as all South African’s statuses are reviewed. At the time of the report, home affairs was in possession of more than 400 000 uncollected ID booklets.
The problem of blocked IDs
Many people will remember the 2009 incident in KwaZulu-Natal when a distraught man committed suicide after a long wrestle with home affairs to register his birth and obtain an ID. His application was torn up by a home affairs official because he did not meet the requirements to satisfy the burden of proof. Home affairs demanded that his parents be present for the application. His parents had long since died without having registered his birth. Ultimately, he was unable to prove his nationality. For him and many others, it seems death is more bearable than a life without identity.
People with blocked IDs experience the same kind of difficulty in proving their identity once the ID has been blocked. Anyone can become a victim of Identity blocking. If your ID number is being used fraudulently, it can be blocked without your knowledge. While addressing ID fraud is necessary, it is equally important to protect innocent people’s access to nationality and the right to just administrative action.
Current requirements to unblock an ID or resolve a duplicate ID includes an originally issued birth certificate (a recently issued certificate will not be accepted), a clinic card or maternity certificate, copies of both parents’ IDs and a witness 10 years the applicant’s senior or older. The requirements are not always able to be met because many applicants were born at home and in rural areas that do not possess maternity certificates or clinic cards as a means of verification. In these cases it becomes impossible to prove their nationality. In most cases they have no claim to nationality in any other country and are rendered stateless.
Proposed action
In terms of Section 20 of the Constitution, no citizen may be deprived of citizenship. Home affairs effectively deprives applicants of nationality through ID blocking. This results in the affected person being unable to travel, study, work, marry or even register the births of their own children.
Given the gravity of the negative effects, it is imperative for the government to respond urgently. It is difficult to estimate how many people in South Africa could potentially be stateless because of ID blocking. In order to decrease the numbers of affected people, the government may look to both domestic and international law for assistance. Both the Promotion of Administrative Justice Act (Paja) and the two United Nations’ Conventions on Statelessness contain helpful provisions in this respect.
Paja compels home affairs to provide affected persons with written reasons for administrative decisions and to inform them of the remedies that are available to them. If this basic procedure, which is already provided for in Paja, is followed by home affairs officials, it will significantly decrease the number of people left in limbo and confusion. It will also force the relevant home affairs official to conduct proper research and investigations preventing the arbitrary deprivation of nationality.
If preventative steps are not taken, many South Africans may be at risk of statelessness.
The right to nationality is inextricably linked to the rights to human dignity, equality and freedom. In a democracy founded upon these values, we need to ensure that all our rights are protected and to remember that the right to nationality is a key which unlocks our access to all other rights.
To check your ID, marital and living status, visit this website.
Liesl Muller is an attorney with the Statelessness Project at Lawyers for Human Rights.
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