Ndebeles … those ‘stateless' South Africans, says Zimbabwe!

Last week's article posed a question about the citizenship of the Ndebele. This follow-up article attempts to answer that question via the related and politically portent issue of Ndebele nationality.

It is no secret that the active default position of the Zimbabwe State is that the Ndebele are South African invaders living in Zimbabwe who must be, and are being, expelled back to South Africa, minus territory. While South Africa is fully aware of this, it has, to this stage, stuck to the formal technical position that the Ndebele are Zimbabweans. Are the Ndebele stateless then?

Just after last week's article had been posted for publication Mr Mugabe announced his 'new' permanent secretaries. It was therefore too late for that event to be incorporated in that article. Just as well, as these 'new' permanent secretaries appointments now provide a timely basis for a discussion of the issue of Ndebele nationality in this follow-up article.

The re-Shonalization of the Zimbabwe State in 2013 re-ignites the issue of Ndebele nationality in a very direct way. Re-Shonalization is about recovering a supposed Shona State, seen as having been slipping during the MDC's failed years, and returning it to its supposed true 'owners': the Shona. These 'new' permanent secretaries and their Cabinet therefore kick these non-nationals - the Ndebele – well away from this supposed Shona State called Zimbabwe. The Grand Plan is on full throttle and on the political roll once again …

Shonalization and re-Shonalization as ideological drivers  - and the fuel - for Gukurahundi are also the ideological drivers for another, as yet unacknowledged concomitant mass crime going on now, called in this article, 'ethinicide' (to be distinguished from 'ethnocide' which is cultural genocide). Shonalization and re-Shonalization long morphed Gukurahundi from a genocide into the 'ethnicide' we see operational today.

'Ethnicide' is weaponized tribalism, delivered as institutionalized tribalism. During armed attack, as during Gukurahundi, 'ethnicide' is a component of ethnic-cleansing or genocide since its role there is to accompany the physical destruction of an ethnic group. But 'ethnicide' is a stand-alone, 'peace-time' mass crime delivering the political death of an ethnic group by non-military, institutional mechanisms (by exclusion or as targets of institutional measures).
 
'Ethnicide' deploys the institutional mechanisms of destruction in such a way that those institutional measures politically erase the targeted ethnic group or groups in a lingering and sustained way, but without those institutional mechanisms reaching the threshold of an overt armed attack, while at the same time ensuring that normal political life and existence for the targeted ethnic group or ethnic groups is completely removed. The Ndebele will easily identify with this 'suspended' political existence under Zimbabwean misrule.

'Ethnicide' should be part of 'crimes against humanity under the Rome Statute, just as the crime of apartheid is. Its definition could therefore mirror that of the crime of apartheid. 'Ethnicide' can therefore be defined as an institutionalized regime of systematic oppression and domination by one tribal or ethnic group over any other tribal or ethnic group or groups, committed through institutional mechanisms with the intention of politically eliminating such other ethnic group or ethnic groups, and maintaining that regime. Gukurahundi and this on-going 'ethnicide' long made Zimbabwe a true tribalstan. In the present context, the nationality issue is deployed by the Zimbabwe State as the main institutional mechanism of ethnicide, and as the basis for other tributary institutional measures targeting at eliminating the Ndebele as a political existence. 
To return to Mr Mugabe's latest appointments.
Of the 24 'new' permanent secretaries Mugabe appointed, only two have Ndebele-sounding names, Mrs Evelyn Ndlovu, at  Small and Medium Enterprises and Cooperative Development, and Mr Melusi Matshiya at Home Affairs. Talking of 'Ndebele-sounding names', not the Ndebele, is no small point. The Ndebele have known from inception that the Zimbabwe State has been using people with Ndebele-sounding names to √¢‚Ǩ‚Äú as they think they are doing √¢‚Ǩ‚Äú penetrate and take over Matebeleland. Ndebeleness can no longer be assumed from name only.    
             
Also related, of the 70 or so parastatals operating in Zimbabwe today, there is no known CEO of a parastatal who is Ndebele. Further, there is at present no known Ndebele Ambassador anywhere in the world, even before you consider that diplomatic staff at all of Zimbabwe's embassies are most certainly exclusively Shona. With these facts, the issue of nationality is therefore no small political matter for the Ndebele.
But briefly, the question whether the Ndebele are stateless posed above? 

Statelessness describes lack of any nationality. A stateless person is someone who no State considers its national under its laws. This can be de jure (by operation of a State's law) or de facto (factual). Situations where a person could become stateless are many, but those are not pertinent for this discussion. While the 1954 Convention relating to the Status of Stateless Persons and the 1961 UN Convention on the Reduction of Statelessness try to eradicate statelessness, statelessness still occurs.

Statelessness is therefore narrowly specific to those cases where a person might find themselves with no State able or willing to issue them with something like a birth certificate, ID or passport. Therefore within this narrow definition of the statelessness, the Ndebele are not stateless since they presently formally carry Zimbabwean citizenship. However, to the extent the Zimbabwe State confers technical citizenship on the Ndebele but is engaged in 'ethnicide' against them and to the extent South Africa has not granted the Ndebele technical citizenship or conferred South African nationality on them, the Ndebele can be said to be factually and politically stateless. The statelessness of the Ndebele is therefore used here in this political not legal sense.

So what is the law and practice on nationality?

First, the relationship between nationality and citizenship needs to be clarified.

Wikipedia defines citizenship as a legal status within a State, and nationality as informal membership in or identification with a particular State. For example, all U.S. citizens are U.S. nationals but not all U.S. nationals are U.S. citizens. While in general, citizenship (eg, having a birth certificate, ID, and passport) is evidence of nationality, it is not always so. In other words, nationality and citizenship do not always coincide though in general they do. Most people therefore treat citizenship and nationality interchangeably. For present purposes citizenship can be understood as the technical side of things and nationality as the functional or 'real' side, as will be seen below.
Citizenship (nationality) is conferred by national law. However, Article 1 of the 1938 Convention on Nationality says that such national law shall be recognized by other States in so far as the national law is consistent with international conventions and international customs on nationality. Therefore, other States may not recognize national laws on nationality (citizenship) which are inconsistent with international law and custom, even if the national law might purport to be valid law. To that extent, the domestic law on nationality is governed by and subject to international law.

The usual grounds upon which citizenship is granted by national law are descent and birth. A third way is naturalization. Naturalization involves a foreign individual making an application to host national authorities for formal conferment of nationality status of the host State.

As was noted in the last article, the new Constitution of present-day Zimbabwe confers citizenship on grounds recognized under international law. The problem with citizenship as it relates to the Ndebele is not so much in its letter as it is in its application, or effect. Therefore, given the past genocide by the Zimbabwe State on the Ndebele and the on-going 'ethnicide' the issue of nationality arises in respect of the Ndebele.
The critical issue for the Ndebele is that, presently, their nationality is not effective or 'real', either in the Zimbabwe State or in South Africa, thus raising the issue of statelessness in the sense defined above.
It is mainly for such situations as the Ndebele find themselves today under Zimbabwe rule that international law now applies what is known as the 'functional approach' to nationality. The functional approach departs from a mechanical, 'technical' approach. The functional approach applies in a variety of contexts and is designed to meet specific justice. In this case, the functional approach would apply to the Ndebele as a political aggregate to resolve the true nationality of the Ndebele.

The functional approach is based on the principle of a 'genuine connection' between an individual and a particular State. This principle was established in 1955 by the International Court of Justice (ICJ) in the Nottebohm Case (Liechtenstein v Guatemala).

A brief description of the facts of Nottebohm.

Mr Nottebohm was German by birth. However, he had left Germany and lived in Guatemala, where he had business and other interests, for 34 years. He was then removed from Guatemala in 1943 as a result of the war. In 1939 he had applied and been naturalized as a national of Liechtenstein (apparently fraudulently). At the end of the war in 1946 Nottebohm tried to go back to Guatemala but Guatemala refused him entry, resulting in him returning to Liechtenstein. In the intervening years Guatemala had seized Nottebohm's property without compensation. Liechtenstein then acted for Nottebohm as its citizen against Guatemala, claiming compensation for Nottebohm's arrest and seizure of his property. At the time of the case Nottebohm had Liechtenstein citizenship. The issue then became which nationality Nottebohm was, as if Nottebohm was Guatemalan and not Liechtensteiner, then Liechtenstein had no right to represent him (the case would be inadmissible). In the result the Court found in favour of Guatemala. In other words, the Court said that Liechtenstein had no effective link to Nottebohm, but Guatemala did, notwithstanding Nottebohm's naturalization in Liechtenstein. 
To bring this discussion back to the Ndebele, the issue to resolve will be which State the Ndebele can be said to have an effective political link or a 'genuine connection' with, South Africa or Zimbabwe?

Leaving aside for the moment the issue of whether or not there is 'collectivized nationality' (since ordinarily nationality is conferred on an individual basis) a general answer might be attempted. The answer depends very much on the content of 'genuine connection' or effective link.

The Nottebohm case said nationality is "a legal bond having as its basis a social fact of attachment …" The phrase 'social fact of attachment' is critical here, and signifies that what would be considered is a portmanteau of factors covering all aspects of life indicative of that 'genuine connection'. No single factor is therefore decisive. Therefore, according to the Nottebohm case, the fact that the Ndebele are presently physically in what is today Zimbabwe, and that formally and technically they hold Zimbabwean citizenship, should not in and of itself count for much if other factors showing a 'genuine connection' to South Africa are demonstrated or are indicative.

Based on the Gukurahundi genocide and on the on-going ethnicide, and the Ndebele's well demonstrated (and expressed) desire to be part of South Africa, including their ancestry and other known factors, it should be possible to show that the Ndebele have a 'genuine link' with South Africa, not today's Zimbabwe, notwithstanding the present formal technical position.

All this said and done, it must be recalled that the issue of the true nationality of the Ndebele is primarily a political, not legal, matter and therefore the Ndebele would have to deploy the issue of nationality politically to influence or force arrival at a valid legal position on the matter.   

What, then, is the whole point of the above discussion about nationality?

It is the following.

By becoming citizens of South Africa in Zimbabwe, the Ndebele will have internationalized the whole game.

To achieve this, as discussed above, the Ndebele would not need to formally and physically hold South African IDs or passports, neither would it be materially decisive that the Ndebele currently hold Zimbabwean IDs and passports. Again, internationalizing the issue of nationality would not be a legal but a political act by the Ndebele.

Once the Ndebele become or express a desire to be South African nationals, the diplomatic side of things rather than just national law effectively becomes engaged. Once this is the case, international law, not national law, becomes the dominant force at play. With some exceptions, under international law States' protection of their nationals in another State is a diplomatic exercise. The Ndebele's claim of South African nationality would facilitate the activation of this South African diplomatic protection. 

By going down the nationality route the Ndebele will also have leveraged their cause on South Africa's political power. This way, the matter would no longer play out as the Ndebele (presently a non-State entity) against Zimbabwe (a State entity), and would become a State-to-State matter. Power parity would thus be achieved, thus displacing the existing power asymmetry between the Zimbabwe State and the Ndebele, a non-State actor. Bear in mind, too, that, all said and done, international law operates primarily as a law of States, not people or peoples.

This leads to the next important point.
South Africa's diplomatic engagement cannot self-apply, though in principle South Africa could act on its own initiative.

By the way, there is a new emerging norm under international law called the 'Responsibility to Protect' (R2P). R2P is an initiative of the UN established in 2005 and is based on the principle that sovereignty is not a right, but a responsibility. R2P aims to prevent what R2P refers to as 'mass atrocity crimes': genocide (Gukurahundi); war crimes, crimes against humanity (Gukurahundi), and ethnic cleansing (Gukurahundi). Among other things, the international community can intervene militarily (as a last resort) in situations where any of these mass atrocity crimes are occurring in a State. It would be up to the Ndebele to find ways to get the international community to regard this on-going 'ethnicide' against them as a mass atrocity crime engaging R2P.

To pick up on the point on how to engage South African diplomatic protection. The Ndebele themselves would have to create a political framework by which and through which South Africa could become diplomatically seized of the situation of the Ndebele under Zimbabwean rule. There are many things the Ndebele could do.

The easiest and quickest way in this context, intimated in last week's article, is for the Ndebele to organize and politically structure themselves, and then formally approach South Africa with a request for conferment of South African nationality. This would have to be done openly and publicly. This is perfectly do-able, and perfectly legitimate. And as also intimated in last week's article, States are not immutable; they are born, they grow, die, change, merge, divide-up etc. This is since the dawn of time.

This Zimbabwe State is therefore not a State for all time, anytime or for all or any condition. Zimbabwe has after all long screamed for radical organic reconstruction!

There is therefore no earthly reason whatsoever, why the Zimbabwe State should continue to exist as presently constituted and operated and there is also no earthly reason why the Ndebele, given everything that has gone on against them and continues to go on, should now not reject this Zimbabwe State in a formally political way and seek to establish themselves under a State arrangement of their choice, whatever that ultimately is. 

To all these ends, no one is asking the Ndebele to start a 'poo war' against Zimbabwe State institutions in Matebele territory, though this would be a valid and effective non-violent tool (and the political pun would not be entirely regrettable either). Certainly, what is being said here is that the Ndebele will be right to throw at the Zimbabwe State every political, constitutional and legal mechanism to rid themselves of this crushing 'ethnicide' which has enforced this 'floating nationality' on them for over 30 years, and as a result of which the Ndebele are manifestly absent in government and other key areas of life in Zimbabwe (because they are not Zimbabweans) and South Africa (because they are 'Zimbabweans').  

These permanent secretaries appointments, and their Cabinet overlord, draw from and speak very cruelly to this suspended or floating nationality of the Ndebele today.

Both the Gukurahundi genocide and the on-going ethnicide being waged by the Zimbabwe State on the Ndebele effectively establish the Ndebele as 'stateless' South Africans. Is South Africa, then, just shirking responsibility of a problem thrown at it and with which it is effectively, and by default, already seized, simply because South Africa thinks the issue is difficult or politically 'controversial'?

Meantime the previously faint stampede of tribal mischief-making coming from neighbouring Zimbabwe has finally entered South Africa as thumping boots of political anarchy now threatening to bring the South African political house down.
 
South Africa may therefore do well to discover quickly that the nationality issue of the Ndebele is a hot political matter right on its lap, resolution of which may well prove the political antidote for the toxic concoction of national disintegration long administered on South Africa by political witchdoctors north of its border. Absenting decisive action - and now – then welcome South Africa to tribal plunder and organized disorder passed off for serious politics exported from next door!