More amendments needed to the Kenya Citizenship and Immigration Regulations, 2012

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By Elsie Oyoo

By definition, a stateless person is one who is not considered a national by any State under the operation of its law. According to a 2014 Report on “The World’s Stateless” published by the Institute on Statelessness and Inclusion, there are at least 10 million stateless persons around the world, enough to populate a country or two. To have such a great number of people living under such a precarious civil status does not bode well because more often than not, they are kept out of their fundamental human rights and freedoms.

Although human rights are attached to the status of people as human beings and not to their status as citizens, citizenship is indispensible in unlocking those rights. For example, in order to register for the National Hospital Insurance Fund in Kenya, an applicant must have some form of identification such as a national identity card, a birth certificate for minors or a passport for foreigners. Stateless people do not ordinarily possess these identity documents. This effectively denies them their right to health as provided for by Article 43 of the Constitution of Kenya.

In her PhD thesis published in 2008 under the title, “Nationality Matters: Statelessness under International Law”, Professor Laura Van Waas, cites four major causes of statelessness. First, are the technical reasons arising from the complex and conflicting application of the citizenship laws of different countries? For instance, where a child is born in a country whose laws only allow for passing on of citizenship by blood (jus sanguis) but whose parents are citizens of a country which only allows for passing on of citizenship by birth in that country (just soli). Two, state succession can also cause statelessness. In the decolonisation that took place throughout Africa, the African governments that assumed power had to determine who was entitled to citizenship. This did not necessarily coincide with who the former colonial masters’ considered citizens. The Makonde, as explained below, fell through this crack in citizenship laws.

Third, in many instances, the arbitrary deprivation of citizenship can also lead to statelessness. For instance, when relations became sour between Ethiopia and Eritrea in the late 90s, the Ethiopian government confiscated the identity documents of many Ethiopians of Eritrean ethnicity. Fourth, Prof. Van Waas points out new causes of statelessness such as the failure to register children at birth. When you have no documentation to prove where or when you were born, the likelihood of statelessness multiplies.

The Makonde, Kenya’s 43rd tribe, would know about the lacunas in law that result in statelessness. Until they were granted certificates of registration of citizenship, the Makonde formed part of the stateless population within Kenyan borders whose exact number the UNHCR has reported to be unknown. The Makonde were brought into the country from Mozambique in the 1930s to work on the sugar and sisal farms at the Kenyan coast. This was before either Kenya or Mozambique became independent. When the two countries did gain independence, the Makonde remained without citizenship of either country.

For more than half a century, the Makonde have been unable to access public services such as healthcare and higher education. They have additionally been incapable of taking up opportunities for work or take part in society, as they have had to live clandestinely. Furthermore, they have had to pass on their statelessness to their children. Kenya does not allow for the acquisition of citizenship simply by being born in the country. One of the child’s parents must be a Kenyan national for the child to acquire Kenyan Citizenship. These difficulties have forced the Makonde to live on the fringes of the Kenyan economy, politics and society.

Under the Kenya Citizenship and Immigration Act, 2011 (the Act), there are two ways of becoming a Kenyan citizen. The first, as mentioned above, is by blood, where at least one parent is Kenyan and passes on their citizenship to their child. The second is by registration. Through the latter avenue, the Makonde were able to gain citizenship. By virtue of section 15 of the Act, stateless persons who were born in Kenya before December 12, 1963 can apply to be registered as Kenyan citizens within 5 years of the passing of the Act.

Under section 17, their descendants are also eligible to apply for citizenship. For stateless persons or their descendants to be considered for registration under sections 15 and 17, they should know Kiswahili or a local dialect, not have been convicted of a crime and should intend to continue to stay in Kenya. To add, regulation 10 of the Kenya Citizenship and Immigration Regulations, 2012, until recently required applications to be accompanied by a non-refundable prescribed fee (Sh2000), supported by evidence such as birth certificates or national identity cards. Further, it was a requirement that a magistrate or commissioner for oaths witnesses the application.

The fee was too high a price to pay for accessing human rights for the stateless, who have no alternative means to enforce their rights. Similarly, the requirement for supporting documentation mocked stateless applicants. It is as though the law were asking, “give me documentary proof of your citizenship status and I shall give you citizenship”. On the other hand, stateless applicants respond, “It is precisely because I do not possess any documentation to vouchsafe my citizenship status that I am applying for citizenship”.

Applying for citizenship by registration baffles even those who have all the papers to back their provenance due to the sheer amount of paperwork to be produced and the waiting time between the application date and acquisition of citizenship. For the Makonde, it took the whole citizenship section of the Department of Immigration Services shutting office and going to Kwale County, where the Makonde live, in order to collect all the required information.

It thus came as a relief when the Cabinet Secretary for Interior and Co-ordination of National Government amended the Regulations with respect to Stateless persons, migrants and their descendants. Through Legal Notice number 208 dated December 30, 2016, he introduced an exemption from paying the application fees and producing evidence to support the application.

The acquisition of Citizenship to the Makonde rode on the back of an enabling legal environment, tireless lobbying by those interested and the political will to push the agenda through. Nevertheless, two major issues remain unresolved.

Concerns of rule of law and discrimination persist. Kenya is home to some members of the Shona from Zimbabwe and Pemba from Tanzania among other communities. Many of these people are still stateless. There is no legal justification for treating the various stateless persons differently especially when their circumstances are similar. One could argue that the Department of Immigration Services only grants citizenship to those who apply and the still stateless persons are yet to apply. However, in the interests of the public, the Government should look into assisting them to apply and overcome any hurdles that may exist.

Another challenge lies in the fact that Sections 15 and 17 have a sunset clause. Applicants can only benefit from the provisions within 5 years of the coming into force of the Act or for an extended period of three years as gazetted by the Cabinet Secretary. The five-year period lapsed on August 30, 2016 but was extended by legal notice number 178 of 2016 with effect from August 31, 2016 for three more years. However, it is unlikely that the rest of the stateless persons in Kenya will be granted citizenship within the remaining two years if the last six years have been anything to go by.

This article recommends amendment to Sections 15 and 17 of the Act to the effect that there will be no deadline within which Stateless persons ought to apply for citizenship. Although the government has taken legal measures, which have somewhat, alleviated the plight of Kenya’s stateless, only a more proactive approach in legislation and action, in line with the rule of law and bill of rights will deal a definitive blow to statelessness.

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