Kenyan Nubians have historically been regarded as “aliens” and still have a tenuous citizenship status, preventing them from enjoying many of their rights. This particularly affects Nubian children, who are not registered as Kenyans at birth. 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 healthcare. The African Committee of Experts on the Rights and Welfare of the Child found that such discrimination leading to statelessness violates African human rights standards.
Although the Nubians have lived in Kenya for over 100 years, they were always regarded as “aliens” and continue to have an uncertain citizenship status. Children in Kenya do not have their nationality recognized at birth. While most Kenyan children have a legitimate expectation that their Kenyan citizenship will be recognized, Nubian children have no such expectation.
On reaching the age of 18, all Kenyan children apply for the ID cards that are 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 will never receive ID cards. Some will get them only after a long delay. Nubians are the only non-border people to be treated in this way. This situation has been described by the Kenyan National Commission on Human Rights as “institutionalized discrimination.”
The failure to recognize nationality or what has been called the “right to have rights,” means that the government does not recognize the property rights of the Nubians and treats them as squatters on their own land. For example, the Kenyan government systematically refuses to pave roads or provide clean drinking water, sanitation, or health care to residents of Nairobi’s Kibera neighborhood, where Nubians are the majority of residents. Schools and health clinics are fewer and of lower quality here, as the state argues that it is not obligated to deliver services to squatters. At the same time the government has displaced Nubians from specific areas of Kibera, which are then developed with public utilities and sold.
The Justice Initiative together with the Institute for Human Rights and Development in Africa (IHRDA) brought a complaint to the African Committee of Experts on the Rights and Welfare of the Child arguing that the rights of the Nubian children in Kenya have been violated, in a case entitled Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v. the Government of Kenya.
Violation of the Right to Acquire a Nationality at Birth. The extended denial of secure nationality status to Nubian children violates the child’s right to acquire a nationality at birth, protected by Article 6 of the Charter, and also to have that nationality registered. Without a clear nationality at birth, Nubian children grow up effectively stateless and vulnerable, with an uncertain future.
Unlawful Discrimination against Nubian Children. Nubian children are treated differently from other children in Kenya because of their ethnic and religious origins, for which there is no legitimate justification, in violation of the prohibition of discrimination in Article 3 of the Charter.
Consequential Violations. As a result of their historical treatment as foreigners, their continued uncertain citizenship status, the failure to recognize their nationality at birth, and the discrimination against them, Nubian children are consigned to live without secure property rights in enclaves such as Kibera, the only ancestral homeland that they have. This violates their rights of equal access to services such as education and health care.
April 15, 2009. Justice Initiative and IHRDA file a letter of introduction to the Committee.
November 11, 2009. Submissions on admissibility are filed with the Committee.
June 3, 2010. Submissions on the merits are filed with the Committee.
March 22, 2011. Committee announces its decision, finding in favor of the applicants.
September 30, 2011. Committee publishes written decision presenting reasoning and detailed recommendations to the government of Kenya.
February 2014. Nubian Rights Forum, Namati, Open Society Initiative for East Africa and Open Society Justice Initiative submit a briefing paper to the Committee on the status of implementation, based on evidence from a community-based paralegal project designed to track implementation.
May 2017. The Committee reviews implementation of the decision at its 29th session.
The Committee found 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 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 healthcare 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 a dedicated Committee member to monitor implementation.
In February 2013, Namati, the Open Society Justice Initiative, and Nubian Rights Forum (NRF) began a pilot community-based paralegal project in Kibera. Nubian paralegals have been engaged to assist members of their community with obtaining birth certificates, national ID cards, death certificates, and passports in accordance with legal procedures. The paralegals’ case records track application processes for each form of documentation, developing a vital source of information on the implementation of the decision. Over 900 clients came to the NRF office for assistance in the first year of operation. The Nubians continue to suffer discrimination in access to proof of their Kenyan nationality, as evidenced through the records maintained by the NRF offices. Some issues that persist include the practice of “vetting,” burdensome document requests, and backlog in the civil registration process and applications for national ID cards in general. In order to fully implement the Committee’s decision, Kenya must address the discretion exercised by registration authorities in processing identity documents and end the “vetting” process.
On May 4, 2017, the Committee led a review of implementation of the decision at its 29th ordinary session in Maseru, Lesotho, with participation from both a Kenyan government delegation and Nubian community representatives. Open Society Justice Initiative, NRF and Namati prepared a further briefing paper using paralegal case data, making detailed recommendations to the government and the Committee on how implementation of the decision can be achieved. Based on the exchanges during the session, the Committee members urged the Kenyan government to develop a roadmap for implementation that was tailored to address the specific practices underlying the Charter violations found in the case. The community and its representatives proposed that the Committee, the African Commission on Human and Peoples’ Rights and the United Nations Committee on the Rights of the Child—three international bodies that have criticized Kenya’s vetting practices—should engage in further coordinated dialogue with the Kenyan government to press for elimination of this discriminatory practice and the inauguration of real safeguards to protect the right to nationality for all, including national minority groups like the Kenyan Nubians.