African Centre of Justice and Peace Studies (ACJPS) And People's Legal Aid Centre (PLACE) v Sudan

Parties (including notable third parties)

African Centre of Justice and Peace Studies (ACJPS) and People's Legal Aid Centre (PLACE) on behalf of Iman Hassan Benjamin (Complainants); The Government of the Republic of Sudan (Respondent)

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Summary of Facts

The Complainants submitted the Communication onbehalf of Ms Iman Hassan Benjamin, who was born in Sudan in 1994 to a Sudanese mother and a father of South Sudanese origin.

On 9 July 2011, South Sudan seceded from Sudan. On 19 July 2011, the National Assembly of the Republic of Sudan adopted amendments to the Sudanese Nationality Act of 1994, which provided for, among other things:

• the automatic revocation of Sudanese nationality of those who became nationals of South Sudan;
• the revocation of Sudanese nationality of the children of parents who have their Sudanese nationality revoked because of de facto or de jure entitlement to South Sudanese nationality; and
• dual nationality with South Sudan was not permitted.

The Sudanese Civil Registry Act 2011 introduced a new civil registration procedure requiring the registration of all nationals of Sudan. The Act required all Sudanese nationals be issued with a national identity number, such number being essential for accessing, among other things, university education.

The Complainant, whose father died six months before the secession of South Sudan, applied for university and was informed that her birth certificate was insufficient and that she also needed a national identity number. When the Complainant applied for a national identity number, she was informed that she had lost her Sudanese nationality since her father would have become a South Sudanese national upon the separation of Sudan and South Sudan in 2011. The automatic loss of nationality left the Complainant stateless and unable to access further education.

The central issue was the arbitrary and automatic loss of the Complainant’s Sudanese nationality resulting from discriminatory nationality laws and the Respondent State’s failure to prevent childhood statelessness.

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Legal Arguments

Legal Arguments by the Complainants

The Complainants argued that Sudan’s nationality framework discriminated against children of Sudanese mothers, who were required to apply rather than receive nationality automatically (whereas children with a Sudanese father could acquire Sudanese nationality automatically). Furthermore, they argued that Sudan’s nationality framework discriminated against children with a South Sudanese paternal link, with the automatic revocation regime exposing such children (and in particular, the Complainant) to statelessness;

The Complainants argued that the automatic revocation of the Complainant’s nationality violated provisions of the African Children’s Charter, specifically Articles 3, 4, 6(3), and 6(4).

The ay also argued that the acts of the Respondent violated the protections under the African Charter on Human and Peoples’ Rights, specifically Articles 3(2), 5, 7, 11, and 18(1).

Legal Arguments by the Respondent

The Respondent argued that Sudan’s nationality framework was in line with the requirements of the Children’s Charter as they provide mechanisms to prevent childhood statelessness, as Sudanese nationality could only be revoked if the child was the national of any country other than Sudan (in the Complainant’s case, the Respondent State argued that she qualified for South Sudanese nationality).

Furthermore, the Respondent argued that the Sudanese nationality framework did not discriminate against children of Sudanese mothers, as those children could acquire Sudanese nationality by applying for it;

The Respondent argued that it had not violated the Complainants’ right to acquire a nationality because Iman Hassan Benjamin was entitled to apply for Sudanese nationality and she had not ‘exhaustively pursued the required administrative procedures available’ to acquire such nationality.

Furthermore, the Respondent argued it was not obliged to grant nationality to the Complainant because she was entitled to acquire a South Sudanese nationality.

Outcome

The Committee found the Respondent:

• violated its obligation under Article 3 of the Charter on non-discrimination;
• violated Article 6(3) and 6(4) of the Charter on the right to nationality and the prevention of statelessness;
• as a consequence of the above violations, also violated Article 11 of the Charter on the right to education; and
• did not violate Articles 18(1) and 19(1) of the Charter on the right to protection of the family as a result of the deprivation of the Complainant’s Sudanese nationality.

While the Committee declined to recommend that the Respondent pay compensation to the Complainant, it did recommend the Respondent take all necessary measures to:

• grant the Complainant Sudanese nationality on the basis of her Sudanese mother;
• confer nationality to all stateless children in its territory without a prolonged procedure to prove their link with another State;
• revise its Nationality Act to ensure that:
• children born to Sudanese mothers automatically obtain Sudanese nationality the same as children born to Sudanese fathers;
• children born to South Sudanese parents are not discriminated against in obtaining Sudanese nationality where the child demonstrates a clear link with the Respondent State;
• its nationality laws do not leave children born in the territory of the Respondent State stateless;
• Sudanese nationality is not revoked from a child unless there is sufficient and admissible evidence that the child has acquired another nationality; and
• the revocation of Sudanese nationality of the child’s parent does not result in revocation of the Sudanese nationality of the child.

The Committee made further recommendations to prevent further breaches of the Charter, including that the Respondent:

• adopt laws or regulations in line with acceptable international standards regulating how Sudanese nationality is revoked;
• ensure the implementation of procedural safeguards in determining, conferring and revoking Sudanase nationality;
• avoid undue delay issuing the certificate of nationality; and
• ensuring children are not deprived of their basic rights under the Charter.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)	Articles 2, Art 7, 7(1) & 24(2)
International	International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)	Articles 24 & 26
International	Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975)	Articles 1, 2, 3, 4 & 10(1)
International	Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)	Article 9
International	Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, UN Doc A/810 (10 December 1948)	Article 15
International	International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 66- UNTS 195 (entered into force 4 January 1969)	Article 5
Regional	African Charter on Human and People’s Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986)	Articles 3(2), 5, 7, 11 & 18(1)
Regional	African Charter on the Rights and Welfare of the Child (Organisation of African Unity (historical) OAU Doc CAB/LEG/24.9/49 (1990))	Articles 2, 3, 4, 6(3), 6(4), 11(1), 11(3)(c), 18(1), 19(1) & 44(1)
Regional	African Union, Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, 11 July 2003	Article 6 (g) & (h)
Domestic	The Sudanese Nationality Act 1994	Article 15, Sections 4(2), 4(3), 6 & 10
Domestic	The Sudanese Nationality Act (Amendment) 2011	Sections 10(3), 10(2) & 15
Domestic	Interim National Constitution of the Republic of the Sudan 2005	Article 7
Domestic	Southern Sudan Referendum Act 2009	Sections 25 and 26
Domestic	The Civil Registry Act 2011	Sections 27.1 & 27.8

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Robert Nanima, ‘From Kenya to Tanzania through Mauritania, Cameroon and Sudan: the approach of the African Children’s Committee to the Principle of Non-discrimination in Selected Communications’ (2024) 8 African Human Rights Yearbook 307 ()

• This article considers the developing jurisprudence of the African Children’s Committee where a violation of the principle of non-discrimination was found.
• The author argued that the Committee in ACJPS and PLACE v Sudan departed from the literal approach that looked at non-discrimination as a principle and not a right (as in IHRDA v Kenya 2011) and notes that the Committee adopted a ‘conceptual approach requiring that the state party should not use discriminatory regulations on different groups of a population in the grant of nationality’ (page 324) in ACJPS and PLACE v Sudan.  The significance of the shift is that it refers to non-discrimination as both a principle and as a right: an inherent entity of which the state cannot deprive the child.
• The author explains that the Committee expressly relied on Article 46 to draw persuasive jurisprudence from international and regional bodies, framing non-discrimination as both a principle and a right that is not subject to a balancing test in nationality matters.
• On acquisition of nationality, the Committee used a dual approach: its own precedents (General Comment 2 on Article 6 of the African Charter and IHRDA v Kenya) together with external authorities (the Inter-American Commission’s Expelled Dominicans and Haitians v the Dominican Republic, CEDAW materials, and the Namibian High Court’s Unity Dow decision) to condemn discriminatory regulatory mechanisms, including Sudan’s rule allowing only fathers to automatically confer nationality.
• On deprivation of nationality, the author points out that the Committee adopted the UN Human Rights Committee’s understanding of arbitrariness and the Inter-American Court’s reasoning in Girls Yean and Bosico v Dominican Republic, to hold that discriminatory deprivation is inherently arbitrary and therefore limits state sovereignty in nationality decisions.
• The author explained that the Committee applied standards drawn from prior jurisprudence on legitimate aim, proportionality, and necessity to assess Sudan’s nationality framework, finding the differential treatment could not be justified under these tests.
• The author concludes that the Committee synthesised these sources to find Sudan’s nationality regime violated Article 3 (non-discrimination) and, as a consequence, Articles 6(3)–(4) (nationality and prevention of statelessness) and Article 11 (education), thereby integrating prior jurisprudence to link non-discrimination directly with nationality rights.