By Nadrat Mazrui
Nubians in Kenya descended from the Nuba mountains, found in what is current day central Sudan, and were forcibly conscripted into the colonial British army in the early 1900s when Sudan was under British rule. Allegedly, upon demolishment of the army, although the Nubians requested to be returned to Sudan, the colonial government at the time refused and forced them to remain in Kenya.
Get exclusive access to the groundbreaking story of Ms. Faith Odhiambo’s historic presidency at LSK in our Latest Edition of Nairobi Law Monthly MagazineDownload Latest Edition Now For Ksh 150!
The British colonial authorities allocated land for the Nubians in the settlement known as Kibera or Kibra in Nairobi but did not grant them British citizenship. At Kenya’s independence, the citizenship status of the Nubians was not directly addressed and for a long period of time they were consistently treated as “aliens” since they, according to Government, did not have any ancestral homeland within Kenya and as a result could not be granted Kenyan nationality.
It is rightly said that birth registration is the State’s first official acknowledgement of a child’s existence, and a child who is not registered at birth is in danger of being shut out of society – denied the right to an official identity, a recognised name and a nationality. A major difficulty in making the right to nationality effective for Nubians is the fact that many Nubians in Kenya who are parents have difficulty in registering the birth of their children. The fact that many of these parents lack valid identity documents further complicates their efforts to register their children’s births.
Other parents have difficulty having their children registered since many public hospitals refuse to issue birth certificates to children of Nubian descent. Such a limitation is confirmed by the Kenya National Commission on Human Rights that identified and recorded practices indicating discrimination against certain population groups, including persons of Nubian descent, in the issuance of birth registration and identity documents.
The birth registration certificate in Kenya explicitly indicates that it is not proof of citizenship, thereby leaving unregistered children in an ambiguous situation contrary to Article 6 of the African Children’s Charter.
While children in Kenya have no proof of their nationality, they have legitimate expectation that they will be recognised as nationals when they reach the age of 18. Children of Nubian descent are expected to go through a lengthy and arduous process of vetting, including requiring them to demonstrate the nationality of their grandparents as well as the need to seek and gain the approval of Nubian elders and government officials. This is discriminatory, and deprives them of nationality, thus leaving them effectively stateless.
The vetting process that is applicable to children of Nubian decent when applying for IDs is extremely arduous, unreasonable and de facto discriminatory. Ahmed * (real names hidden)a Nubian from Kenya explains the discriminatory process he underwent when trying to get his ID. He was asked to produce his eldery mother for the vetting process. This was very inconveniencing and led him to miss out on a chance to go to Ghana for an exchange program seeing as his inability to obtain an identity card consequently affected his ability to acquire a Kenyan Passport.
Salima* a Nubian girl could not get vetted and had to wait for her father who was at that moment in South Africa so that they could both go for the process simultaneously.
It goes against if not their rights as people of Kenya then their internationally recognised rights found in the Declaration of Human Rights. After all they cannot claim the support of the Constitutional Bill of Rights as they are purportedly “not Kenyan”.
The practises applied to children of Nubian descent and in particular their subsequent effects are a violation of the recognition of the children’s juridical personality, and are a clear affront to their dignity and best interests. The Kenya National Commission on Human Rights has concluded that “the process of vetting…Nubians…is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society”.
There is a gap in the State’s birth registration practice, partly reflected in the number and categories of births that go unregistered as reported by the 100,000 applicants who complained to the Centre for Minority Rights Development (CEMIRIDE) such as children born out of wedlock, children of minority groups, and children of refugee, asylum-seeking or migrant families. Unregistered children are not issued birth certificates and are thus rendered stateless as they cannot prove their nationality, where they were born or to whom.
The Nubian right to have a birth registration and to acquire a nationality at birth is thus violated. Thus, together with the prohibition on unlawful/ unfair discrimination, and as a result of these two violations, a list of consequential violations, including equal access to education and healthcare, occurs.
The obligation of the State in relation to making sure that all children are registered immediately after birth is not only limited to passing laws and policies but also extends to addressing all de facto limitations and obstacles to birth registration.
It would not be reasonably defensible to argue that the authorities in Kenya do not know about this ongoing allegation of violations of human rights that has been occurring for such a long period of time. Even then, it cannot be in these children’s best interests (a principle domesticated by the Children’s Act of 2001) to leave them in a legal limbo in order to fulfil formalistic legal procedures. As an upper guardian of children, the State and its institutions should have proactively taken the necessary legislative, administrative and other appropriate measures to bring to an end the current situation Nubian children in Kenya find themselves in.
A stateless person, according to the 1954 UN Convention relating to the Status of Stateless Persons, means a person who is not considered as a national by any State under the operation of its laws.
While complex issues of parentage, race, ethnicity, place of birth, and politics all play a role in determining an individual’s nationality, the root causes of statelessness are complex and multifaceted, including state succession, decolonisation, conflicting laws between States, domestic changes to nationality laws and discrimination.
Whatever the root causes, one cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherit an uncertain future. They might fail to benefit from protections and constitutional rights granted by the State. These include difficulty to travel freely, difficulty in accessing justice procedures when necessary as well as the challenge of finding oneself vulnerable to expulsion from one’s home country.
Statelessness is particularly devastating to children in the realisation of their socio-economic rights. In sum, being stateless as a child is generally an antithesis to the best interests of children. Under general international law, States set the rules for acquisition, change and loss of nationality as part of their sovereign power. However, although states maintain the sovereign right to regulate nationality, state discretion must be and is limited by international human rights standards, as well as customary international law and general principles of law that protect individuals against arbitrary state actions.
States are limited in their discretion to grant nationality by their obligations to guarantee equal protection and to prevent, avoid and reduce statelessness. As a backdrop, there are four ways in Kenya through which a person may acquire Kenyan citizenship – by birth, descent, registration and naturalisation. Indeed some persons of the Nubian community in Kenya have acquired Kenyan nationality through any one of these ways.
It is not alleged that all people of Nubian descent in Kenya have been left stateless. However, the crux and truth of the matter is that even with the application of these ways, a significant number of their children have been left stateless in Kenya.
It is argued rather loosely that the Nubians in Kenya may be entitled to the nationality of the Sudan. The situation is now further complicated with the existence of Sudan and the new state of South Sudan. To which Sudan do the Nubians then belong? Such a line of argument would miss the fact that nothing has transpired that indicates that Government, if it holds such a view, has undertaken any efforts to ensure Nubians in Kenya acquire the nationality of any of the Sudanese states.
Kenya needs to make sure that all necessary measures are taken to prevent the child from having no nationality. Article 14 (4) of the 2010 Constitution provides that a child less than eight years of age whose parents are not known is presumed to be a citizen by birth. This provision is, however, not a sufficient guarantee against statelessness, and does not address the crux of the present problem, namely children born in Kenya of stateless parents, to acquire a nationality by birth.
It is alleged by Ahmed* that Nubian children are treated differently from other children in Kenya for which there is no legitimate justification amounting to unlawful discrimination and a violation of the African Children’s Charter. The discriminatory treatment of the children affected by the conduct of the Government based on their and their parents’ and legal guardians’ social origin has had long standing and far reaching effects on the enjoyment of their rights. In the African context, collective rights and economic and social rights are essential elements of human rights in African countries especially Kenya.
The Nubian community has been provided with fewer facilities (as reported to the African Committee Of Experts On The Rights And Welfare Of the Child(ACERWC) by the Submissions and Report of the Institute For Human Rights And Development In Africa and also by the Open Society Justice Initiative ) 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 where they live being systematically overlooked over an extended period of time. There is de facto inequality in their access to available health care resources, and can be attributed in practice to their lack of a confirmed status as nationals of the Kenyan Republic.
Irony of ‘national unity’
Further, their right to education has not been effectively recognised and adequately provided for even in the context of the resources available for this fulfilment. At this junction, it is highlighted that children of Nubians who have been born in Kenya are subject to the requirement of their serving the national community by placing their abilities at the service of the nation. How is national solidarity and the Kenyan spirit of unity to be achieved in an environment where Nubians feel denied of their rights?
The violations and eschewed discrimination are emblematic of the difficulties occasioned by the non-recognition of Kenyan nationality of the people and children of Nubian descent. The author does not wish to fault our Kenyan Government which is already labouring under difficult circumstances to improve the lives of the Kenyan people. Au contraire, as Kenyans we have made a number of significant progresses in implementing Human Rights. Sadly however, it is worth noting that the Nubian crisis has persisted like a sore wound at the spirit of Kenya unchecked for more than half a century. This is a long time awaiting, thereby prejudicing not just the current generation of Nubians but indeed generations after them. The implications of the multi-generational impact of the denial or the right to nationality of the Nubians are manifest and have far wider effects than may prima facie appear. At first brush, systematic underdevelopment of an entire community is the result.
A year in the life of a child is almost six per cent of his or her childhood. The child occupies a unique position in the African Society. The implementation and realisation of children’s rights in Kenya is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.