Photo-Kenyan birth certificate.October 13, 2011 By
In its landmark decision in Nubian Minors v. Kenya, the African Committee of Experts on the Rights and Welfare of the Child (Committee) for the first time found that the Government of Kenya had violated the African Charter on the Rights and Welfare of the Child (Children’s Charter) in its treatment of Kenyan children of Nubian descent. As an organization with a mandate to protect and promote rights and welfare of the child, the Committee oversees the implementation of Children’s Charter. Accordingly, following a Communication filed by the Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (OSJI), the Committee found that the Kenyan government has failed to ensure Nubian children the right to Kenyan citizenship at birth, which creates a myriad of obstacles throughout their development.
Though Article 14 of the 2010 Kenyan Constitution confers citizenship to persons born within the country with at least one parent also born in Kenya, Nubians have historically been considered aliens, deprived of the protection and benefits of citizenship despite meeting the legal requirements. Consequently, Nubian children grow up virtually stateless, without the citizenship status afforded to all other children born within Kenya’s borders. According to the Communication, inequality under law begins at the point of birth. Public hospitals in Kenya routinely deny Nubian parents birth certificates for their children, often providing the pretext that the parents—having faced discrimination themselves—lack valid identification. Without a birth certificate, Nubian children are thereafter denied essential government benefits, such as access to education and health care. By age 18, they must undergo a complex and lengthy vetting process to obtain an identification card that is proves their Kenyan citizenship. As adults without the proper identification, Nubians will not have the right to own property and they will face many obstacles when seeking employment. Taken together, these forms of state-sponsored discrimination create an environment for Nubian children characterized by collective poverty and limited opportunities for personal development.
As a State Party to the Children’s Charter, Kenya has an obligation to protect the rights of children. Pursuant to Article 44 of the Charter, the Committee has jurisdiction to review the Communication against Kenya. Specifically, IHDRA and OSJI alleged violations of Article 6(2), 6(3), and 6(4), which guarantee the right to nationality upon birth and the proper registration of such. The IHDRA and OSJI further alleged violations of Article 3, which prohibits unlawful discrimination inter alia based on ethnicity, and Articles 11(3) and 14(2), which grant equal access to education and health care, respectively.
In its decision, the Committee found that under Article 6(4), Kenya is required to take measures to ensure that children have nationality upon birth. The Committee also found that Kenya violated Article 3, because there exists a discriminatory practice in the country toward children protected under the Charter that does not serve a legitimate state interest, but rather renders Nubian children stateless. The Committee also held that limited access to education and healthcare stemmed from a preexisting violation of Articles 6(2) and 6(3). The Committee recommended that Kenya take legislative and administrative measures to ensure that Nubian children received citizenship, and to implement a non-discriminatory birth registration practices. The Committee also recommended that Kenya report on the implementation of such measures within six months.
The decision is a milestone in the fulfillment of a founding principle of the Charter, to ensure the rights of children regardless of race or ethnicity. The Committee’s decision is made publicly available, and Kenya is required to submit a report on measure implemented to comply with the decision. Accordingly, Kenya will need to institute mechanisms to ensure that hospitals allow Nubian parents to register their children at birth. The Committee will in turn appoint a member responsible for monitoring compliance. In the face of noncompliance, the Committee may consider bringing the case to the African Court on Human and Peoples’ Rights, should the Court determine that the Committee may bring cases under Article 5 of the Court’s founding Protocol.
Following the Committee’s finding, the Citizenship Rights in Africa Initiative has submitted a recommendation to the Task Force on Citizenship and Related Provisions of the Constitution, calling for a complete revision of the Citizenship Act to confer citizenship to individuals born to stateless parents in Kenya. Established by Kenya’s Minister of State for Immigration and Registration of Persons, the task force should act on the recommendation to supplement the citizenship provision of the constitution to comply with the recommendation of the Committee. With no supporting legal foundation, the Kenyan vetting process—which requires an additional proof of identity for Nubians and an interview before a vetting committee to obtain identification document—should also be revoked. Ultimately, Kenya ought to grant Nubian children citizenship to demonstrate its recognition of Nubians as Kenyans by birth, entitled to equal benefits and protection afford to all citizens in the country.
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