Example 3: Ending discrimination in access to nationality for children of Nubian descent in Kenya 

Project Type: Litigation: IHRDA and Open Society Justice Initiative (OSJI) (on behalf of children of Nubian descent in Kenya) v. Kenya, Communications No 002/09

Actor

The Open Society Justice Initiative (OSJI) uses law to protect and empower people around the world. Through litigation, advocacy, research, and technical assistance, the Justice Initiative promotes human rights and builds legal capacity for open societies. The Justice Initiative works on the following themes: anti-corruption, national criminal justice reform, equality and citizenship, freedom of information and expression, international justice, legal capacity development, and national security and counterterrorism.

Institute for Human Rights and Development in Africa (IHRDA) seeks a “continent where all have access to justice, using national, African and international human rights law and mechanisms for the promotion and protection of their rights.”

Problem

The petitioners alleged that Kenya has historically and unjustly denied Kenyan citizenship to children of Nubian descent. The Nubian population in Kenya arrived during British Colonial rule and were allocated land but denied British citizenship. When Kenya gained independence in 1963, the issue of Nubian citizenship was not addressed and the Government of Kenya continued to deny Kenyan citizenship to persons of Nubian descent.

Upon reaching the age of 18, all Kenyan children apply for an ID card, which is necessary to prove citizenship. For most Kenyan children, this is a simple process; however, Nubian children are forced to go through a long and complex vetting procedure with an uncertain result. Some never receive ID cards. Others receive ID cards only after a long delay.

Lack of citizenship particularly affects Nubian children. They grow up with few life prospects, uncertain as to whether they will be recognized as citizens. Most Nubians live in enclaves of poverty, with no public utilities and limited access to education and health care. The petitioners argued that denial of citizenship to Nubian children was discriminatory and violated the children’s rights to name and nationality, education, and health and health services.

Procedure

The Justice Initiative, together with the Institute for Human Rights and Development in Africa (IHRDA), brought a case to the African Committee of Experts on the Rights and Welfare of the Child on behalf of children of Nubian descent in Kenya.

Arguments and Holdings

Right to birth registration
Kenya is a State Party to the African Children’s Charter. Article 6 of the Charter provides that:

    1. Every child shall have the right from his birth to a name.
    2. Every child shall be registered immediately after birth.

Many Nubian parents find it difficult to register their children at birth. At times, resource limitations and practical obstacles obstruct registration. In addition, health officials discriminate against Nubians and refuse to issue birth certificates to children of Nubian descent. Unregistered children are rendered stateless, as they cannot prove their nationality, place of birth, or parentage. The African Committee concluded that Nubian children must have the de jure (legal) and de facto (actual) right to registration at birth.

Right to nationality
Article 6(3) of the Charter provides that “[e]very child has the right to acquire a nationality.” Yet birth certificates do not confer nationality and children must wait until their eighteenth birthday before applying for an ID card to acquire a Kenyan nationality. In the this case, the Committee found a strong link between birth registration and nationality and concluded that “the seemingly routine practice . . . of the State Party that leaves children of Nubian descent without acquiring a nationality for a very long period of 18 years is neither in line with the spirit and purpose of Article 6, not promotes children’s best interests, and therefore constitutes a violation of the African Children’s Charter.” (para. 42).

Stateless children
A birth registration does not confer nationality. An ID card does confer nationality but a child must wait 18 years to receive an ID card, and Nubian children often find it difficult or impossible to obtain an ID card. Therefore, Nubian children are stateless for the first 18 years of their lives, after which they have dim prospects of establishing citizenship and receiving its benefits.

The Committee found the statelessness claim central to the communication. As the Committee pointed out, Article 6(4) of the African Children’s Charter imposes on States Parties to ensure that a child “acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.” Although Kenya maintains its sovereign power to create and maintain its own standards for nationality, it must exercise that power equally and without discrimination. Therefore, although Kenya is not obligated to follow a jus soli approach to nationality, the Committee found that Kenya’s de facto denial of citizenship to children of Nubian descent violates Article 6(4) of the Charter.

Non-discrimination
The petitioners alleged that the vetting process for children of Nubian descent to obtain ID cards was discriminatory because they were treated differently. The Committee found that the State should facilitate the process for children who would otherwise be stateless. The Committee found Kenya to be in violation of Article 3.

Right to health
The Committee began by referring to two cases heard by the African Commission under Article 16 of the African Charter of Human and Peoples’ Rights (ACHPR). The Committee stated, “African jurisprudence places a premium on both the right to health care and the right to underlying conditions of health.” (para. 59) The Committee examined the content of Article 14 under the African Children’s Charter and found that the provisions were similar in content to Article 16 of the ACHPR and that the African Commission’s findings ‘bear significant relevance.” (para. 60) The Committee did not elaborate on specifics of health care provision to children of Nubian descent, but said plainly: “The affected [Nubian] children had less access to health services than comparable communities who were not composed of children of Nubian descent. There is de facto inequality in their access to available health care resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer facilities and a disproportionately lower share of available resources, as their claims to permanence in the country have resulted in health care services in the communities in which they live being systematically overlooked over an extended period of time.” With that, the Committee found a violation of Article 14(2)(b,c,g).

Right to education
Using similar reasoning, the Committee found that children of Nubian descent had less access to education facilities and experienced de facto inequality in access. The Committee further found that the affected communities had been provided with fewer schools and that their right to education had not been recognized and provided for. The Committee found a violation of Article 11(3).

Commentary and Analysis

Violations of the African Children’s Charter
  • • Non-discrimination (Art. 3)
  • • Right to name and nationality (Art. 6.2, 6.3, 6.4)
  • • Right to education (Art. 11.3)
  • • Right to health and health services (Art. 14.2 (a-c, g))

The Committee found that Kenya’s actions violated the Charter’s provisions protecting children’s right to nationality, observing that statelessness is the antithesis of the best interests of the child. The Committee also found that Kenya’s vetting system unlawfully discriminates against Nubian children in violation of Article 3, leaving them stateless or at risk of statelessness with no legitimate hope of gaining recognition of their citizenship. As a result, Nubian children lack access to adequate health care and education, in violation of Kenya’s obligations to provide the highest attainable standard of health and education to all children (Articles 14(2)(a)-(c), (g) and Article 11(3), respectively).

The Committee issued five detailed recommendations, including legislative and administrative reforms, an obligation to consult with affected communities in developing implementation strategies, and the requirement that Kenya implement a non-discriminatory birth registration system. It also established implementation monitoring mechanisms, including an obligation that Kenya report back on implementation within six months, and that a dedicated Committee member monitor implementation.

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