Migration and legal identity

MIGRATION et IDENTITÉ JURIDIQUE

"But who has ever seen a nationality from a distance or up

close? No more than the political borders of states can be seen
on the planet from above, the nationality of a natural person
cannot be guessed from his or her face. Wisdom therefore leads
us to relativise this phenomenon which, like law, is constructed
and not given».

Jean DABIN
 INTRODUCTION

1. legal identity is fundamental to mobility. It allows people to cross state borders and
thus to leave and return to their own country,
2. and to access the most essential services in the countries of transit and destination.
3. It is also through legal identity that one gains access to nationality, ease of
residence, etc.
4. This is why the Global Compact for Safe, Orderly and Regular Migration requires all
migrants to have "legal identity and proper documentation" (Goal 4 of the GPM),
thus joining the SDGs whose ambition is to give everyone a legal identity, including
birth registration (SDG 16.9) which will facilitate the achievement of SDG 10.7,
namely orderly, safe and responsible migration and mobility.
Legal identity is so crucial to the mobility of people that many international legal instruments
have taken up the issue to treat it both as a human rights issue and as a state duty to care for its
citizens.

How do African states contribute to the achievement of safe, orderly and regular migration in
this area?

Before examining these two important questions, we need to look at the particular history of
legal identity in Africa to understand the ins and outs of it.
HISTOIRE DE L’IDENTITE JURIDIQUE EN AFRIQUE

HISTORY OF LEGAL IDENTITY IN AFRICA

Problems of identity are linked to the history of the region, to the trace of borders, to
migrations on the continent, to discriminations that structure African societies, to the
difficulties of displacement of nomadic populations and others, to the conflicts that the
continent experiences, etc.
Pre-colonial Africa: several types of citizenship, each with 'its own framework, its own
land, its own management and self-management groups'
Example of the Mali Empire: all the nationals of Mali were mandikas. But this term
referred to those who came from the Mandingo country and to the nationals of the
Empire. But reference was also made to the family, the neighbourhood, the village, the
canton, etc.
Inter-ethnic solidarity, of which 'kinship in jest' is one of the most complete forms, explains
why the foreigner was the object of particular protection. See statement 24 of the Mande
Charter (Kurugan Fuga), which states that in the Mande, 'foreigners are never harmed'.
 HISTORY OF LEGAL IDENTITY IN AFRICA (continued)

• Colonisation, with its laws and practices, introduced a new philosophy of the
relationship to the territory, the roots of which are Western. Notion of allegiance due to
the person of the King, and not to the crown, and conceived as being perpetual.
• Nationality then makes it possible to define the relationship to royalty and the King.
Criteria for granting and withdrawing nationality were created. Rudimentary systems of
civil status are created in the colonies. Differences between the French, English,
Portuguese and Spanish colonial powers.
• The Bolshevik revolution and the birth of statelessness
• The particular situation of Jews during the Second World War led to the adoption of
norms protecting legal personality (Article 6 of the UDHR, Articles 7 and 8 of the CRC,
etc.) and promoting the right to a nationality (Article 15).
• The Vienna Convention on Consular Relations organises the access of nationals to state
documents (Article 5)
• Independent African states are creating their own civil state system and organising
themselves to ensure the protection of their citizens outside their territory. The lack of
resources is undermining state efforts. In 2021, of the 164 million children whose births
were not registered, 91 million were in Africa [40 million in AE, 23 million in AO, 15
million in AC, 12 million in AA, 600,000 in AN.
 ACTIONS BY AFRICAN STATES
• 2010 First Conference of African Ministers in charge of Civil Registration: Adoption of
a Declaration and Action Plan;2012, Development of an African Programme for
Accelerated Improvement of Civil Registration and Vital Statistics
• 2017 African States link civil registration to the achievement of the MDGs and Agenda
2063;
• Launch in 2021 of the Campaign "My Name is Nobody: A Legal Identity for Every
Child, Access to Justice for Every Child" between the African Union Commission and
UNICEF
• Development under the auspices of the African Commission on Human and Peoples'
Rights of a draft Protocol on the eradication of statelessness and specific aspects of
the right to nationality in Africa
a. Improving civil registration systems:

• Civil status events to be registered: birth, death, adoption, legitimation,

recognition, legal separation, marriage, civil partnership and divorce
• Principles: integration with health services, dematerialisation and
decentralisation.
• Universal access to civil status: recognition as a person/right to have
nationality/proof of link to the state;
• Refugee protection.
b. Harmonise travel documents according to ICAO specifications
a. Access to consular protection and personal documents (COI, passports, etc.)
b. Reducing statelessness (registration of migrant births)
c. Reviewing rules on proof of nationality
d. Documents to participate in local life
e. .Protection of personal data