Nubians in Kenya- New Case on Birth Registration

Nubian family, ca. 1940, via Nubians in Kenya

There has recently been a very interesting case to come out of Africa that deals with the persistent refusal of the Kenyan government to recognize the nationality of a minority group that has been present in the country for almost a century. The case, Nubian Minors v. Kenya, was brought to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) by the Institute for  Human Rights and Development in Africa along with the Open Society Justice Initiative. The ACERWC is an institution that deals with interpreting and deciding on issues related the OAU's African Charter on the Rights and Welfare of the Child, Africa's answer to the Convention on the Rights of the Child.

Like the CRC, the African Charter provides explicit nationality and legal personality rights for children. Article 6 requires that every child is entitled to a name, a nationality, and birth registration. Further, children who would otherwise be stateless are entitled to the nationality of the country in which they are born. The Nubian Minors case was brought under these provisions, along with the non-discrimination clause and several other collateral clauses.

Nubians from KAR

The Facts

The story of the Nubians of Kenya is old and interesting. Apparently, this group came from the Nuba mountains in present-day Sudan, and were forcibly conscripted by the British in the 19th century into the King's African Rifles. After service, they requested to be sent back to Sudan, but were instead allocated land in Kenya, namely, Kibera, right outside of present-day Nairobi. Next best thing, right? Wrong.

Now here is the tricky part: having been moved to Kenya, most of these people held no Kenyan citizenship. The British also refused to grant citizenship. At the time of Kenyan independence, in 1963, nothing about the Nubians was settled- they were still considered aliens by the government, who also refused to recognize Nubian title to the Kibera settlement. To make matters worse, these status problems were passed by the Nubian Kenyans down to their children. It is allegedly difficult in Kenya to register children in the absence of the parent's identity documents (which as we know, many people of Nubian descent do not possess.) And other human rights organizations have noted discriminatory practices in birth registration, such as refusing to issue a birth certificate. Further, children in Kenya do not receive proof of citizenship until the age of 18, at which point many children of Nubian descent find the fairly straight-forward procedure to verfiy their nationality complicated by discriminatory procedural barriers and delays. The result? Generations of legally invisible and de facto stateless people.

The Case

After considerable efforts to obtain remedies at the state level (see section 15-22 of the Decision) the applicants were able to have the case heard on the merits. The first issue the Court considered is whether the ACRWC grants citizenship from birth. While the reading of art. 6(1) doesn't provide a right from birth, taking into consideration the best interests of the child principle, this is a logical reading. Further, statelessness is particularly devastating for children.

Whatever the root cause(s), the African Committee cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherits an uncertain future. For instance, 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 in a legal limbo vulnerable to expulsion from their home country. Statelessness is particularly devastating to children in the realisation of their socio-economic rights such as access to health care, and access to education. In sum, being stateless as a child is generally antithesis to the best interests of children. (at 46)

 Having said that, the Committee considered several possible arguments by Kenya. First, the fact that some Kenyans of Nubian descent had acquired citizenship through the normal legal procedure. The Committee considered that this did not destroy the central argument, that a significant portion had not, which would be enough to violate their obligation. Second, Kenya could have argued that the Nubian children may be entitled to Sudanese citizenship. In this case, the Committee responded, the government could have tried to cooperate with Sudan to facilitate such granting of nationality, but there was no evidence that they had done so (at 51). In sum, they had violated their obligation to provide children with nationality, birth registration, and to help them avoid statelessness, all in violation of the key provisions of Article 6.

As to the discrimination claim under ACRWC art. 3, the Court found prima facie discrimination. The government's absence made it impossible for them to meet the burden of proof with evidence that the discrimination served a legitimate end, however the Court looked for explanations, and in the end relied on findings by the Kenyan National Commission on Human Rights, 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” (at 56)

 In the subsequent paragraphs the Court found that these violations also deprived the Kenyan children on Nubian descent of their right to health and their right to education. In other words, positive findings on all fronts for the applicants.

Follow Up

Of course, it remains to be seen what the impact of the case will actually be on affected communities. Kenya was instructed to come up with an implementation plan, which would have to include some legal mechanisms to register extant stateless minor  Nubians as Kenyan, as well as a method of birth registration and subsequent acquiring of citizenship that is non-discriminatory and functioning.

In the meantime, lawyers have some excellent new case-law. This case speaks to, specifically:

• the fact that statelessness is not "in the best interests of the child"
• the link between birth registration and preventing statelessness
• the impact of statelessness and legal invisibility on the ability of a child to access his health and education rights
• additional barriers to birth registration and citizenship on the basis of ethnicity/ origin of parents can constitute discrimination.

All in all a big win, and a situation that lawyers interested in statelessness and legal invisibility will definitely want to keep an eye on.

You can read more on the case here: Open Society Justice Initiatives- Nubian Minors v. Kenya

And for a cool multi-media website on Kenya's Nubians, check out this online exhibit by Greg Constantine: Kenya's Nubians- Then and Now

Statelessness versus Legal Invisibility under International Law

International law identifies two types of stateless people, de facto and de jure. International standards such as the Statelessness Convention are primarily designed to protect de jure stateless persons, ie, those who are legally without citizenship from any country. However, it has long been acknowledged that this definition accounts for only a portion of the individuals who are not receiving the protection of a nation state.

“De facto stateless persons” has been used in the past to refer to those individuals who do not meet the definition of the Statelessness convention, but other than being defined in the negative this term is not widely agreed  upon. A group of UNHCR experts recently defined de facto stateless persons as “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.” The “valid” reasons for its ineffectiveness generally connect to the reasons for one becoming a refugee under international instruments. For instance, being unwilling to avail oneself of government protection due to persecution on the basis of race, religion, political views, or membership in a particular social group. Escape from genocide or conflict are likely other valid reasons. 

 

The Equal Rights Trust has adopted a more expansive definition. In their “Draft Guidelines on the Detention of Stateless Persons” they write that “a person who has a legal nationality which is not effective- for example, a person who does not benefit from consular protection from his or her country of evident nationality- is considered de facto stateless.” The difference between the two definitions is that one indicates that the de facto stateless person is always at least a refugee, while the other one acknowledges that many individuals lack state protection in a way that falls short of outright persecution.

Regardless of which definition is accepted, it is doubtful that states are legally bound by the Stateless Convention to protect de facto stateless persons. However, many have argued that they should receive the same level of protection, since they are largely facing the same risks. UNHCR has on occasion argued that both categories should receive state protection and a 2010 UNHCR report on the topic argues that de facto stateless persons fall under UNCHR’s mandate, so long as they are outside of their country and unable to receive protection from their home country.

  

Legally Invisible Persons

If de facto stateless persons receive limited protection in comparison to de jure, then even less protected are individuals that fall short of either definition. For example, individuals of indeterminate nationality, or unable to prove their nationality, or inside the country of their origin but unable to receive the protection connected to citizenship.

For the purposes of this blog, individuals barred from enjoying effective citizenship for any reason (short of voluntary disavowal) shall be referred to as  “legally invisible,” a term borrowed from Praxis, a Serbian NGO that works with many such cases. As Praxis points out, legally invisible persons “do not have the possibility to live their lives like other citizens… [they are] not recognized as legal subjects.”  Since the distinction between “legally invisible” and “stateless” may be hazy in some cases, the following list attempts to differentiate between the two groups.

Stateless Persons:

• Are not considered citizens by any state
• Cannot, without hardship, produce documents allowing them to easily gain or regain citizenship
• May have been deprived of citizenship by an act of state, or by the dissolution of the state
• Are in most cases outside their state of origin
• Are, in the case of de facto stateless, unable or unwilling to receive state protection because of recognized reasons, such as due to persecution

Legally Invisible Persons:

• Have a valid claim to citizenship
• Cannot prove this claim due to a number of reasons, such as lack of access to documents, complexity of registration process
• May have automatically acquired citizenship at birth or through other operation of law
• May be inside or outside their state of origin.

In sum, for a person to be stateless, they need to have no citizenship, ineffective or otherwise. Since a determination of this type requires, at the very least, information from both the records of the person and the records of the government, it is not immediately apparent whether a person seeking assistance is de facto or de jure stateless, or legally invisible. However, since the risks for both groups overlap heavily, it makes sense in my opinion to address the problems together, while keeping in mind that these concepts are different and are not totally agreed upon under international law.

COE Commish on Statelessness

Thomas Hammarberg, the Council of Europe's Commissioner for Human Rights, has an excellent record so far of bringing attention to Europe's bete noir's: the war on terror, Roma, migrants, and now, the problem of statelessness.

In a speech to the CoE during a conference on nationality, Hammarberg highlighted the problem of statelessness throughout Europe, but especially among the Roma.

A great number of stateless persons are Roma. The problem exists in many countries, but it is particularly acute in the Western Balkans, notably in the countries of ex-Yugoslavia. Several thousand persons, among them many Roma, became victims of the decision in Slovenia in 1992 to erase non-Slovene residents from the Register of Permanent Residents. Many had moved to Slovenia from other parts of Yugoslavia before the dissolution of the federation. It was only in 2010 that this unjust regulation was changed through amendments to the law.

In other states in the Balkans, there are Roma who are without citizenship or even basic identity papers. Those who have moved from the former Yugoslav Federation to other parts of Europe often lack personal documents and live in legal uncertainty. They are de facto stateless. Their newborn children are frequently not registered and risk losing their right to apply one day for citizenship as they cannot prove legal residence in the country

Two important things to note about this speech:
1) He mentions the Slovenian "erasure" problem, the subject of the Kuric case currently referred to the Grand Chamber. ( Kuric and others v. Slovenia App. no. 26828/06). Sounds like he endorses the ECtHR's finding of wrong-doing on the part of Slovenia. (Article 8. if you'll recall.)
2.) He brings up the problem of unregistered (or, "legally invisible") people, and their children who do not receive birth registration, and implicitly endorses them as de facto stateless. Interesting stance.

We'll definitely want to keep an eye on Hammarberg, and the CoE to see what steps they take, if any, to back up their stance on statelessness in Europe.