Universal Children’s Day is hence the perfect time to reflect on the rights of children born in countries other than those of their parents, and the status of their rights in those spaces.
South Africa extends multiple protections to children, including vulnerable ones. Section 28 of the Constitution guarantees all children the right to a name and nationality from birth, as well as to have the best interests of the child considered as paramount in any matter concerning the child. These rights are cemented and further articulated in domestic law such as the Children’s Act,coupled with various international instruments to which South Africa is a signatory. It is therefore troubling that in October 2018, the Department of Home Affairs (DHA) published its proposed new regulations to the Births and Deaths Registration Act, whereby the registration of births of children born to foreign parents would cease. The DHA would in place of birth certificates, issue a certificate of proof of birth, which could be presented by the parents at the relevant national embassy for the application of birth certificates.
Currently, all children are issued with birth certificates at birth, regardless of the nationality of the parents. This is in line with Constitution and international law. Articles 7 and 8 of CRC oblige Member States to register children immediately after birth and state that children enjoy the right to acquire a nationality from birth. It is common knowledge that the issuing of a birth certificate does not automatically confer South African citizenship. It does however give the child an identity, a name and a nationality – that of the parent(s), all of which are key to the access of fundamental human rights for all.
Numerous organisations have already identified the problems that this change presents. Among the most serious is that of a child born to refugee or asylum-seeking parents who cannot, because of their status, approach an embassy for documentation since doing so would jeopardise their protection by South Africa. This means that those children would remain undocumented, unable to enrol in school or apply for social security assistance. The ripple effects are endless. There have been multiple cases of children – born of both South African and immigrant parents – unable to enrol in schools because of the absence of birth certificates. Children without a birth certificate are stateless, and in turn, when they have children, these will face the same challenges.
The issue of birth certificates was addressed by the Eastern Cape High Court in Grahamstown on 9 July 2018, in Naki and Others v Director General: Department of Home Affairs and Another. This matter concerned Mr Naki, a South African man, who married Ms Ndovya while he was posted in the Democratic Republic of Congo (DRC) as a peacekeeper. They were married according to her traditions and customs and because such marriages are not registered in the DRC, no marriage certificate was ever issued. This in term means that the union was not recognised in terms of South African Law. Naki returned to South Africa after his tour and his wife later followed on a visitor’s visa. She was heavily pregnant at the expiration of her visa and could not return to the DRC. She was also unable to apply for a new visa. The child was born in Grahamstown and because her mother was non-South African, she was not issued a birth certificate. Rather, she was issued a certificate of proof of birth. They were instructed to use that document to apply for the child’s birth certificate. Upon presentation at the DHA, they were informed that the regulations of the Registration of Births and Deaths (2014) prevented the DHA from registering the birth. The couple then approached the court for assistance. While the case dealt mostly with the right of a father to register the birth of a child, the court recognised the importance of a birth certificate and the numerous protections it affords any child. It also highlighted the particular plight of children born of parents who are not South African and the extra burden that is placed upon them.
According to United Nations International Children’s Emergency Fund (UNICEF), one in four children globally, and closer to one in two in Africa, do not formally exist because their births were never registered. That is a concerning statistic in a country such as South Africa where the youth population outnumbers any other demographic. There are millions of economic migrants, both documented and undocumented, along with asylum-seekers, living within South Africa’s borders today. To introduce regulations that will effectively affect the rights of any children born of these immigrants is arguably irrational. Absent a rational link between the reality on the ground and the proposed intention to cease issuing birth certificates, it could be argued that the State seeks to legitimise xenophobic sentiment via legislation. One that has reared its ugly head within these borders more often than it should in such a metropolitan nation.
As a constitutional democracy built on the protection and promotion of fundamental human rights, it is imperative that all legislature reflects and promotes the spirit and purport of the Bill of Rights. To purposefully exclude, via legislative means, the most vulnerable of our society – children – reflects a worrying disconnect between law-makers and the society for whom they legislate.
By Ms Rebecca Sibanda: Legal Officer, Centre for Constitutional Rights
20 November 2018