Amend the citizenship laws of Uganda; So many Ugandans are stateless.

Citizenship is a legal status that grants an individual rights and responsibilities in relation to a state. For emphasis, it is between state and individual (not state and ethnic community or tribe). According to Article 10, a person who was born in Uganda and whose parents are from one of the ethnic groups that were present in Uganda as of 1926 is considered a citizen of Uganda by birth. In Uganda, there is no known registry of ethnic community members. There is no citizenship origin that dates from 1926, and 1926 has no legal significance in Ugandan citizenship. In my percipience, it seems to have been strongly intended to keep some individuals from different areas out.

Upon a careful construction of the said article in relationship with the third schedule to the Uganda Constitution 1995 and for the reasons stated herein, I think the time is exact for government to consider an amendment of article 10 provide for the citizenship, identification and certification of borderline and other roving communities who have suffered the wrath of legal segregation. It is noteworthy that Article 10 of 1995 Uganda constitution makes reference to third schedule which lists all the ethnic communities in Uganda as of February 1926, including among others the Banyarwanda, Barundi, Basamya, Bagwere, Bafumbira, Japhadhola, Karimojong, Batwa, among others that live on the borderlines of Uganda and in effect, makes ethnicity a precondition for one’s citizenship by birth in Uganda.  

It is primarily and legally incorrect to equate ethnicity with citizenship, as ethnicity is an extraterritorial issue controlled by international law, whereas citizenship is a question of one's relationship with the state and is therefore governed by municipal law. As such ethnicity and cultural rights are governed by international law, you cannot confide all Kinyarwanda or Kirundi-speaking people to Rwanda or Burundi, respectively, or restrict the practice of Barundi culture to Burundi alone. How then can you make a municipal law to curtail the citizenship of what is entirely ethnic and hence, beyond the national domain. By subscription to international legal instruments, Uganda is part of the global village allowing recognition of all ethnic groups without discrimination. Citizenship is personal, not ethnic, nor communal; it is person-to-state, hence a grave mistake for a country to group citizens into small ethnic groups to the exclusion of others.

Uganda is a formation of people with roots beyond borders. It is entirely normal to find people of a similar language or culture in different countries or parts of the world and these are guaranteed to practice their respective cultures or exist in any country by matter of international law.  International law is what governs ethnicity and Uganda is a signatory of various international legal instruments recognizing the right to culture among others.

A case in point; the Somali people are one of the ethnic groups of Kenya, and the fact that we have a nation called Somalia is irrelevant. Despite the existence of a distinct nation called Lesotho, the Sotho people live in South Africa. Even though Botswana is a real nation, we still have the Tswana people in South Africa. One can be linked to the place of origin. Since Ugandans did not draw the borders, we have Ugandans having ancestry from other countries.

The Borderlines of Uganda harbor different tribes of people who simultaneously exist in other countries, a factor which has put their citizenship in doubt, but also exposed these settlers' rights to violation and challenge. Such Ugandan borders like Elegu-Nimule along Sudan, Busia, Malaba alongside Kenya, River Mpondwe which acts as the physical barrier between Uganda and DRC, not leaving alone cross-border markets like Kisenyi, Kitoma, Kabuyiri and Kamukumbi bordering Uganda and Congo, Katuna border with Rwanda, the Iteso community existing both  in eastern Uganda and western Kenya, Basamia existing in  eastern Uganda and western Kenya, the Alur in Northwestern Uganda and north eastern DRC, altogether, give a reason to reconsider the issue of citizenship of borderline communities existing in different countries.

Whereas the third schedule recognizes some ethnic communities as existing tribes in Uganda, article 10 disregards them as capable of obtaining citizenship of Uganda by birth is as far as it strictly recognizes those alone whose parents were residents in Uganda as of 1926.

 

 Take for instance, the name Banyarwanda was included in the constitution's third schedule, they are not included in it; according to the necessary interpretation, it only applies to people whose region of origin is succinctly borderline area between Uganda and Rwanda such as Mpororo, Ntungamo, Kabale among others. Even if only such borderline settlements were evaluated by the third schedule, why are the Barundi included?  It follows therefore that for instance the roving communities have a lot to do to assert their citizenship by birth in Uganda despite being recognized as a tribe in Uganda. Other borderline ethnic groups suffer the wrath of non-recognition and marginalization when it comes to accessing most services of Uganda due to the confusion raised by the dual existence of such tribes both in Uganda and other bordering countries.

 

We need an amendment so somber as to ensure that the international principle of jus soli is strongly exhibited as profound in determining Ugandan citizenship- that whoever is born in Uganda and can prove by way of birth certificate or by any other requirements, they automatically obtain citizenship by birth, in Uganda. By so doing, future conflicts from probable uprisings by borderline communities can be hijacked and suppressed, or better even prevented. There is no register of records for ethnic communities resident in Uganda since time immemorial, or even at the point Uganda became a country so this means that basing citizenship on ethnicity brings inaccurate results.

This bill seeks to do away with article 10(a) but maintains clause (b) of the same. The effect of such amendment would be to amend section 12 of the Uganda citizenship and immigration control Act, 1966 mutatis mutandis. The proponents of this bill recommend that government puts in place various mechanisms, task forces and proper agenda for determining citizenship of all borderline communities. Citizenship is not awarded by merely word of mouth or at the whims of a dictating body, but a quasi-judicial body should be set up to hear contentions relating to such matters and no single person's citizenship may be eroded without adhering to principles of a fair hearing under an independent judicial or quasi-judicial body.

For emphasis, Uganda is a product of immigration, and no ethnic group is known to have existed here before migration. Therefore, it is illegal to set a 1926 threshold before Uganda was even created. In 1962, Uganda was established. The British Protected Persons Order 1934, which gave all protected citizens of Uganda a substantive provision on citizenship, was cited even if no one had planned to create citizenship before to that time. A person should never be required to provide proof of citizenship other than their birth certificate. International legal principles exist.

 

International legal doctrines, such as jus soli, grant citizenship to individuals based on their place of birth. Jus sanguinis is another legal principle that states that a person born outside of Uganda to parents who are citizens of Uganda by birth is automatically a citizen of Uganda.
Uganda has ratified some International agreements such as the Universal Declaration of Human Rights which spell very pertinent issues concerning citizenship. The Uganda Human Rights Court has hinted that Banyarwanda are now stateless, which is illegal. It is also signatory to both the African Charter on Human Rights and the African Protocol creating the African Court on Human and Peoples' Rights. As a result, the ruling in Anudo Ocieng v. Republic of Tanzania is equally applicable in Uganda. As a result of this ruling, the country has no right to declare somebody stateless until they can confirm the person's nationality. The state, Immigration, or NIRA has no authority to declare anybody stateless unless it is determined by a court of law.

 

We recommend that Parliament makes a law amending The Citizenship and Immigration Control Act of 1966 to among other things, outline the process for identifying and certifying members of wandering ethnic groups, as well as for managing them.  

 

Ahimbisibwe Innocent Benjamin

innocentahimbisibwe80@gmail.com

The writer is a celebrated Africa award winning lawyer and Author.