Children, the Constitutional Court has told us, are “not merely …. miniature adult[s] waiting to reach full size” or a “mere extension of [their] parents, umbilically destined to sink or swim with them”. As a result, the “traumas of fathers and mothers should not be visited on their children”, and children are fully entitled to their own distinctive lives, personalities and human dignity.

Despite this sharp warning and the strong constitutional protection for all children, it seems that in South Africa in 2021 some children continue to be more equal – and more worthy of respect for their inherent dignity – than others. Indeed, for many children even something as simple as having their birth acknowledged and documented is a lengthy and depleting struggle.

The Department of Home Affairs (DHA) continues to deny children their right to birth registration due to the cumbersome requirements that their parents are often unable to meet. These are children of citizens and non-citizens alike. They include children of large numbers of undocumented South Africans; refugees; asylum seekers or stateless parents and “irregular” migrants. They also include children whose birth parents fall into any of the above-mentioned categories but who are abandoned or orphaned, unaccompanied or separated. Such children are also prevalent in border communities or in remote areas in South Africa. 

Human Rights Day, which we commemorate on 21 March, is a celebration of all human rights as well as a solemn remembrance of the suffering endured during the 1960 Sharpeville massacre and the broader struggle against apartheid. Led by children, over sixty years ago now, many gathered to protest against the Pass Laws of the time, which restricted and controlled travel for people of colour — dictating when, where, and for how long they could stay within white designated areas. It is an indictment on our constitutional democracy, that children born in South Africa – the so-called “born free” generation – continue to be denied their right to birth registration which, in turn, jeopardises their protection and access to fundamental rights. 

Birth registration is a fundamental right, guaranteed to all children in article 24 of the International Covenant on Civil and Political Rights (ICCPR), article 7 of the Convention on the Rights of the Child (CRC) and article 6 of the African Charter on the Rights and Welfare of the Child (ACRWC),  treaties by which South Africa is bound. Unicef explains that a birth certificate defines who you are, who your family is, where you are from and how old you are. A report by the Office of the United Nations High Commissioner for Human Rights reiterates that a birth certificate “establishes the existence of a person under law, and lays the foundation for safeguarding civil, political, economic, social and cultural rights.”

In a climate of state-sanctioned xenophobia, a misconception appears to be prevalent today in South Africa, namely that a birth certificate confers nationality or citizenship to a child. This misconception has led to children – South African citizens and non-citizens alike – being denied their human rights. Birth registration alone is not sufficient to establish South African citizenship for children whose parents are not South African citizens, but it is necessary for this and other purposes. It is also necessary for such children to establish the citizenship of their parents’ countries of origin. Without a birth certificate children can neither acquire South African citizenship nor the citizenship of their parents’ countries of origin. A child in this position risks becoming a “stateless person”. 

Over the past five years alone, Lawyers for Human Rights’ (LHR) Statelessness Unit has received over 2,000 birth registration queries. Against this backdrop, we are launching the #Right2Registration campaign, an advocacy drive advocating for universal birth registration in South Africa as a way to raise awareness around, and ultimately tackle, statelessness and the risk of statelessness that many children born in South Africa today face. Through this campaign, LHR, with the International Commission for Jurists’ full support, intends to highlight in particular that birth registration, in addition to being a human right in its own right under both international and domestic law, is key to accessing all other human rights, including socio-economic rights, such as the rights to education, healthcare, housing food and work. 

Unicef estimates that, in southern Africa alone, there are 14-million unregistered or “undocumented” children. A recent judgment of the High Court of South Africa acknowledged estimates that nearly a million of the children enrolled in schools in South Africa were undocumented, with a substantial majority of these children being the children of South African parents. Whilst South Africa boasts a birth registration rate of 89.2%, the number of children whose birth is unregistered continues to rise, which suggests that, in reality, the statistics are likely to be much higher than these estimates. 

What are the legal impediments to birth registration

The regulations enacted under South Africa’s Births and Deaths Registration Act (“BDRA”) create significant impediments to birth registration, resulting in a high and burgeoning number of unregistered children. Impediments to birth registration include requirements such as: a child’s parents must both hold a valid passport, visa and refugee or asylum seeker permit; a parent’s fingerprints (if alive); an affidavit provided by a South African citizen if the birth occurred outside of a hospital; and the consent of the mother allowing the father of the child to register the birth of the child if the parents of the child are unmarried. 

Compounding these legislative barriers, South Africa’s history of racial inequality and harsh oppression continues to inform the impact of birth registration laws: the majority of the children who are unregistered are black, poor and from marginalised communities. With this context in mind, the R750 DNA testing fee — imposed by DHA through its regulations on children of unmarried South African fathers whose partners are non-citizens — is prohibitive and discriminatory. So too are the consequences associated with living in remote areas – often as a direct consequence of apartheid laws – and having to travel great distances to the nearest DHA office, which significantly increases the cost of registration in a discriminatory manner. Similarly, and making matters even worse, is the consistent and common response the DHA gives to many an applicant that the “systems are down” so “come back tomorrow”. As if this were as easily said as done for a poor, black person living in a rural village a long distance away.

All this flies in the face of the requirement in international and domestic law that the best interests of the child be a primary consideration in all issues affecting children. These obligations are binding for the State as a whole, including administrative authorities and officials at DHA offices across the country. Officials are also bound by the basic values and principles of public service enshrined in section 195 of the Constitution, including that “services must be provided impartially, fairly, equitably and without bias” and that  “people’s needs must be responded to”.

The African Committee of Experts on the Rights and Welfare of the Child has expressed grave concern that these regulations hinder birth registration. It has therefore called upon the government of South Africa to amend the regulations of the BDRA to remove such stringent requirements and ensure that these groups of children are not left at risk of being unregistered. 

Subjecting children to shame and embarrassment: denuded of self-esteem and worth

In addition to robbing children of the possibility of citizenship and depriving them of resources, refusing them access to birth certificates does more fundamental damage. It is a failure, in the words of the Constitutional Court quoted above, to regard them with full and equal dignity of their own. This too has been acknowledged by our Courts. In Centre for Child Law v Minister of Basic Education, a matter relating to access to education for undocumented children, the High Court held that children deprived of an education due to an absence of documentation: 

“…expressed feelings of shame and embarrassment at being unable to perform tasks that other children of their age can perform, becoming depressed, or finding themselves in dangerous situations resulting from being out of school… [and] end up without the hope of being able to rid themselves of poverty or being allowed to participate meaningfully in the societies of which they are a part; they are denuded of their self-esteem and self-worth, and the potential for human fulfilment.”

In the spirit of Human Rights Day, and in a bid to achieve universal birth registration in line with UNHCR’s #IBelongCampaign to eradicate statelessness by 2024, we call on the DHA to comply with its human rights obligations of non-discrimination and to ensure the rights of the child by guaranteeing that all children be registered regardless of the documentation status of the parents. 

The longer DHA fails to do so, the more damning the indictment of our constitutional dispensation for revisiting “the traumas of fathers and mothers” on their children. We are better than robbing children of their childhood, dreams and potential contributions to society! DM

Tshegofatso Mothapo is a legal researcher for the Refugee and Migrant Rights Programme in the Lawyers for Human Rights Statelessness Unit. Tim Fish Hodgson is a legal adviser on socioeconomic rights for the International Commission of Jurists, based in Johannesburg.