Abdulhaleem El-Busaidy is only one of millions of Kenyans who are discriminated against in access to Kenyan nationality—despite having a clear right to it under Kenyan law.
The main problem is discrimination in the issuance of national ID cards, the main proof of nationality for Kenyans. In 2010, El-Busaidy was refused an ID card because he failed to produce his grandfather’s birth certificate. He was told that because of his ethnic background, this was required by a secret government circular that reads: “For Asians and Arabs—parents’ and grandparents’ birth certificates are required proof of citizenship.” El-Busaidy, the son of a former Commissioner for the Kenyan National Commission on Human Rights, decided to challenge the constitutionality of this overtly discriminatory policy. He took his case to court in Mombasa.
The High Court in Mombasa responded. In January 2011, it first ordered a temporary suspension of the circular. And then, on February 18, the court made an important decision against discrimination in access to nationality: Judge Ojwang confirmed the suspension of the circular on the basis that ethnic and religious discrimination in access to national ID cards—and thus nationality—is unconstitutional under the new Constitution of Kenya. The case will now be heard on merits.
The government’s representative in the High Court case swore that the circular “has not been applied by any registration officer” and that “there is no discrimination whatsoever of any nature in issuance of identity cards.” But Kenyans who do not belong to so-called “indigenous tribes” know better: While the High Court case only concerns this particular circular, this form of discrimination is widespread across all of Kenya.
The origins of these policies are often murky. In October 2010, the Open Society Justice Initiative conducted interviews with Kenyan government officials involved in the issuance of ID cards. Many expressed unapologetic and discriminatory attitudes towards ethnic minorities. In Mombasa, one of the registrars had this to say:
You know, cases of indigenous Kenyans, like Mijikenda or Giriama, there is no way you will subject him or her to vetting… When you talk of Asians or Arabs, they are not indigenous Kenyans and that is why we ask them for extra birth certificates, like for their parents and grandparents.
“Non-indigenous people” like Kenyans of Somali, Arab, Nubian, Asian, Duruma, Digo, and a range of other ethnic backgrounds are systematically vetted before they acquire recognition of nationality simply because of their race. Vetting is a process by which certain individuals are brought before a committee charged with determining whether the person is Kenyan or not. A vetting committee member in Nairobi explained the process to the Justice Initiative:
There are people whom we feel we have to vet [for ID cards]…it’s sort of a policy of the Ministry of Immigration, whereby we have to verify that these people are Kenyan before we issue them with identity cards.
Similarly, the senior executive registrar in Nyanza Province said:
Vetting is applicable to anyone who is suspected of being an outsider…when you register an Arab who claims to be a Kenyan by birth, they must show the birth certificates of their fathers and grandfathers.
The vetting committees are known to require all sorts of documentation from individuals—including some that have no bearing on their status as nationals. Often, religious discrimination appears to be at the core of this problem. In another interview with the Justice Initiative, one of the Vetting Committee Members in Mumias Province stated:
When we vet Muslims and non-Muslims, non-Muslims get their documents like identity cards processed very fast but the Muslim applications have lots of questions and requirements and they would ask for your mother’s birth certificate…and they would even ask for your great grandparents’ identification.
The Justice Initiative’s interest in this issue comes from a long-standing engagement with one of the affected communities—the Kenyan Nubians. Many Nubians recall experiences very similar to El-Busaidy’s. In this short video Hussein Adam Umar describes the process he had to go through to obtain his national ID card.
In connection with the interviews with government officials, the Justice Initiative recently conducted a large study among Nubians in Kenya, which included a survey of almost 20,000 persons, and six focus groups in all the key places where Nubians live. The findings were astonishing.
To begin with, as many as 13 percent of Nubian adults in Kenya are currently stateless. Among minors, 37 percent have no documentation at all, and only 2 percent hold firm proof of Kenyan nationality in the form of a passport (national ID cards can only be obtained at majority). One issue that is quite peculiar, however, is that while we know that Nubians are required to undergo vetting in order to establish that they are nationals of Kenya, only 44 percent of those who have ID cards went through a vetting process to obtain them. This begs the question: How did the others acquire theirs?
While part of the answer is that many got their ID cards before vetting was introduced in the 1990s, it turns out that due to the often insurmountable obstacles to obtaining an ID card, a large number have got their IDs by claiming that they belong to another ethnic group and/or lying about their name. The importance of one’s name was confirmed by the senior executive registrar in Nyanza Province:
The Nubians are vetted even for a passport […] because of their names. They don’t have names of African origin because a name like Yusuf Ali you can get in America, but you cannot get Joseph Ochieng there. If you get [Yusuf Ali in Kenya], you will know where he has come from. So their names make them to be vetted.
Solution: Lie about your name and—hocus pocus—you get your card without having to produce a single document? No. For practical purposes such cards may give access to some services, but in the eyes of the government the holders are not actually considered as nationals. In other words, the number of Nubians who are stateless (that is, not considered as nationals by any state) is likely to be much larger than 13 percent.
This does not mean that these people do not have a right—at least in theory—to Kenyan nationality. In fact, 99 percent of Nubians reported that they were born in Kenya, and 97 percent reported that their parents were also born in Kenya. This multigenerational link to the country suggests that they should have acquired nationality by now—either by virtue of their ancestors being present in the country at the time of independence or by being born stateless in Kenya. (Kenya is obliged under the African Charter on the Rights and Welfare of the Child to grant its nationality to all children born on its territory who would otherwise be stateless—an obligation it does not live up to.)
What are the consequences of all this for Nubians in Kenya? Deep-rooted, multigenerational discrimination has certainly led to poverty in the community, and many live in physical and psychological isolation from the rest of Kenyan society. Research by the Justice Initiative shows that the average income of a Nubian household is only $4 per day. Just over 50 percent of the community lives in Nairobi’s infamous Kibera slum, and across Kenya between 70 and 80 percent of Nubians are unemployed, depending on location.
What is the link to the ID card issue, you may wonder? Well, an ID card is a requirement for employment in the formal sector—in particular the public sector. Without employment opportunities the community will remain at the margins of Kenyan society. With tenuous or no legal status, property rights are also limited, which further complicates the ability of Nubians to escape the poverty trap.
It will of course take some time to correct the poverty issue, but regularizing the legal status of Nubians and others and removing discriminatory obstacles to nationality is something the government could easily accomplish with a small dose of political will. The government will shortly be given a unique opportunity to change policies in this area as the High Court case in Mombasa moves to the merits phase. The government should take this opportunity to acknowledge that, with a new constitution in place, Kenya has turned the page and left ethnocentric politics on the dust-heap of history.