The former Spanish Sahara and historical-legal legality

Spain's long presence in the Sahara, which lasted more than a century - more than a hundred years - can be classified into three stages: colonial stage, provincial stage and decolonization stage.

Emilio Bonelli Hernando takes possession of the Rio de Oro peninsula - which Bonelli himself named Villa Cisneros in honour of Cardinal Cisneros who was a councillor to Queen Isabel the Catholic - on 26 December 1884, when he was president of the council of ministers, at the time of Don Antonio Cánovas del Castillo, under the reign of Alfonso XII. The government immediately made the fact known to the other European powers, presenting it as a declaration of the Spanish protectorate of Western Sahara, even before Chancellor Bismark convened the Berlin conference in 1885, which resulted in the division of Africa between the European powers. Prior to this, in 1861, Spain established the right to fish in Santa Cruz de la Mar Pequeña (Ifni). Emilio Bonelli, was appointed by the royal decree of July 10, 1885, Royal Commissioner for Spanish West Africa.

My intention here is not to talk about the history or the policy of Spain in the Sahara, reasons that I think I know well, because despite being born in Villa Cisneros (Sahara), I entered by competitive examination at an early age (16 years) in the Spanish local administration as a civil servant of the Municipality of Villa Cisneros in 1964, of which Don Suilem uld Abdalahe uld Ahmed Brahim (Q. E.D), remaining there until the departure of the Spanish administration from the Sahara on 28 February 1976, at which time I was in charge of the said Town Hall as Secretary General, with Mr Enrique Ballenilla Fajardo as delegate for the Southern Region of the Sahara and Mr Federico Gómez de Salazar y Nieto as Governor General of the Province of the Sahara.

What I want to talk about here is the long presence of Spain in the Sahara, from which a legal link is inevitably born. All of this comes as a result of the latest ruling by the Supreme Court, dated 29 May 2020, which denies Spanish nationality to those born in the Spanish Sahara. A ruling which, in my opinion, has no explanation, is illogical and has no precedent in history.

Throughout the long presence of Spain in the Sahara, it has gone through various vicissitudes and historical stages in which administrative reorganizations took place, laws, regulations, etc., and emanating from the general Spanish legal system (of course taking into account the peculiarities of the territory, such as religion, language, Arabic or Hassanic language, customs, Cheranic justice ...), which were of general application to all inhabitants: peninsula, the Canary Islands and Saharans, alike. They all held Spanish nationality, without distinction.

Throughout this period of colonization, the Sahara was integrated into the territories under Spanish domination in Africa, and known as Spanish West Africa (A.O.E.) and directed from the metropolis (Madrid) by the General Directorate of African Plazas and Provinces, which depended on the Ministry of the Presidency of the Government.

During the last and long period of this stage, the General Direction of Squares and African Provinces was directed by its director general Mr. Francisco Díaz de Villegas and the Ministry of the Presidency by Admiral Mr. Luis Carrero Blanco, first as a sub-secretary minister and then as president of the Government until his death in 1973.

The territory of Ifni -Sáhara-, had its capital in Sidi Ifni, where the governor general of the territory resided, whose mandate or jurisdiction extended to Lagüera, as the extreme southern post. It had governors in El Ayoun and Villa Cisneros. The administrative and political organisation and its rules of application, whether general or specific to the territory, are set out in a legal compilation under the title of Legal Legislation and Political-Administrative Organisation of Ifni and Sahara, by Mr José María Yanguas Miravete at this stage.

By Decree of 10 January 1958, both Ifni and the Sahara became Spanish provinces. In the preamble to the laws and regulations promulgating their provincialisation, it is stated textually that they are as much Spanish provinces as Madrid, Burgos, Asturias or any other Spanish province, without any distinction. A new administrative and political reorganization takes place. Their respective governors general were appointed. They enter fully into the sphere of the Spanish General Legal Order as do all the other Spanish provinces. Laws, decrees, regulations, ministerial orders, etc., are promulgated and published in the BOE.

By way of example, I will cite only a few laws: Law 8 /1961, of 19 April on the Organisation and Legal Regime of the province of the Sahara, Law of 1962 creating the Local Administration of the Sahara; town councils are created in El Ayoun and Villa Cisneros, with the mayors and councillors; minor Local Entities are created in La Guerre and Smara with their presidents and members, as well as other Nomadic Local Entities; the Provincial Council is created with its president and councillors; the province of the Sahara, represented in the Spanish parliament, is given 6 prosecutors; posts of civil servants are created and published at national Spanish and local level in the Sahara; Teaching is deepened with the increase in primary schools and the creation of secondary schools for later incorporation into Spanish universities for higher studies; the Social Security is created; military bodies are created (Grouping of Nomadic Troops), Police (Territorial Police in the Sahara); courts of justice are created both on a national level and those specific to the territory (Chiranic court); Spanish ID cards, passports, family books, Civil Registry... In short, a situation both in fact and in law of all equality and equal treatment for all Spanish provinces and with the same rights and duties as other Spanish citizens.

Therefore, returning to the case of the Judgment of 29 May 2020, of the Supreme Court, recently issued which denies Spanish nationality to the nationals of the Sahara, I think that the appeal which gave rise to the aforementioned Judgment should be dismissed as not in accordance with the law.

Doctrine and jurisprudence have recognised in many cases that the Spanish nationality of the Saharawis is of origin. This has been done by the Spanish courts: judges and magistrates, for years, in repeated judgments of different instances: Court of First Instance, Provincial Courts, National Courts and the Supreme Court itself, from 1976 until now, that is to say, for 44 years unequivocally.

At the time of this last judgement, neither historical reality nor legal legality, which exists in a multiplicity of provisions that have set a precedent, was taken into account and only Law 40/75 of 10 November and Royal Decree 2258/76 of 10 August were applied to regulations issued by the Arias Navarro Government, following the precipitous withdrawal of the Spanish administration from the Sahara, at a time of uncertainty and difficult political situation.

In this respect, I believe that Royal Decree 2258/76 was not necessary in its approach as an act of option to Spanish nationality for the nationals of the Spanish Sahara, since they were already Spanish de facto and de jure, long before 1976. One does not opt for what one already possesses. The correct thing, I believe, would have been for you to be an Act of Confirmation, of a nationality that was already possessed.

Spanish nationality for the Saharans is a right that has been transmitted from generation to generation for several generations, to the extent that it can no longer be said to be an acquired right, but an inherent right, despite the legal complexity and the interpretation of the rules of law, which can be restrictive or extensive.

As for the application of statelessness to Saharan nationals, whose parents, grandparents and great-grandparents held Spanish nationality, without having known any other nationality, there was no reason for it.

Article 14 of the Spanish Constitution states: "Spaniards are equal before the law, and may not be discriminated against by reason of birth, race, sex, religion, opinion [...]". I believe that if Cubans, Filipinos or Equatoguineans, who, because of their historical link with Spain, have the right to Spanish nationality, it would be discrimination and an enormous injustice, that the natives of the Spanish Sahara, who had the same link and which continued much later in time, until 1976, do not have the same right.

We trust that the waters will return to their course, that justice will be restored, that the error committed in this Judgment will be corrected and that the law and historical reality will be recognised.

Abdalahe Hameyada Abdelcader

Lawyer and Doctor in Law