F ACTSHEET
African Commission Calls on Kenya to
Address Discrimination in Access to
National Identity Cards and Recognize
Land Rights of Nubian Community
Summary
Procedures for granting access to documentation of citizenship cannot be different based on the applicants’ ethnic or religious background, according to the African Commission on Human and Peoples’ Rights’ decision in The Nubian Community of Kenya v. Kenya. The decision reaffirms that the right to nationality is protected under the African Charter on Human and Peoples’ Rights, including an affirmative obligation to prevent statelessness. To meet these commitments, Kenya must dismantle its “vetting” system: a cluster of arbitrary administrative processes applicable only to certain minority groups before they can acquire national identity cards. "[By] failing to put in place fair processes, devoid of discrimination and
arbitrariness for the acquisition of identity documents, the Commission considers
that Kenya has failed to recognize the legal status of Nubians, in violation of
Article 5 of the Charter" — African Commission on Human and Peoples Rights
According to the Commission, discrimination in access to national identity cards hampers Nubians’ individual and collective autonomy: they may not be able to undertake a host of “transactions that are necessary to a dignified life.” A major consequence has been insecurity in land and housing rights. The Commission directed Kenya to recognize the Nubian community’s land rights in Kibera, a large informal settlement in Nairobi where Kenyan Nubians have lived for generations without security of tenure. In making this recommendation, the Commission stressed that no state can be excused from its obligations to respect land rights under the African Charter on account of the complexities of land policy and administration. The Commission has emerged as a powerful force in protecting the right to nationality in 1
Africa. The Nubian decision is an important contribution to these efforts: all Kenyans must enjoy their rights on equal footing, beginning with recognition of their citizenship. 224 West 57th Street, New York, New York, 10019, United States | TEL +1-212-548-0600 | FAX +1-212-548-4662 | [email protected]
FACTSHEET
Who Are Kenyan Nubians?
Nubians came to Kenya prior to independence as recruits into British Colonial Administration in East Africa. There are approximately 20,000-­‐30,000 Kenyan Nubians, with over half of the total population living in Nairobi. In a 2010 survey supported by the Justice Initiative, 99 percent of Kenyan Nubians interviewed described themselves as Kenyan citizens. 99 percent also said that their parents were Kenyan, and 99 percent were born in Kenya. They are correct: under Kenyan law, they are citizens. But Kenyan Nubians have long been treated as foreigners in their own country. Discriminatory Vetting Must End
Vetting is the government policy most obviously and directly responsible for perpetuating the misperception that Nubians are not fully citizens of Kenya. Vetting is actually a cluster of steps that Nubians and certain other ethnic and religious minorities must follow in order to receive a national identity card, including appearing before committees comprised of community elders, registration and security personnel and presentation of multiple forms of documentary proof such as religious certificates and grandparents’ identity cards. In addition to the African Commission’s decision in the Nubian case, in 2011 the African Committee of Experts on the Rights and Welfare of the Child also found vetting discriminatory, with profoundly negative consequences for children’s rights in Kenya. Still, discriminatory vetting of Nubians continues unabated. Kenya’s 1978 Registration of Persons Act, still in force today, grants wide discretion to Kenyan registration authorities in determining whether an applicant should be registered and issued documentation. Vetting is an outmoded, thoroughly opaque creature of this unchecked discretion that is harming Kenyan citizens and Kenyan national cohesion. In its decision, the Commission calls on Kenya to “establish objective, transparent and non-­‐
discriminatory criteria and procedures” for granting national identity cards. Kenya is currently reforming its registration law to bring it in line with the inclusive vision of 2
citizenship embraced in the 2010 Constitution. The opportunity to end discriminatory vetting is here: it is up to Kenyans to seize on it. Kenya Must Recognize Security of Tenure
Discrimination in the administration of vital documents—though profound in its exclusionary effects—may never be felt as acutely as the vulnerability associated with insecure land rights that has been experienced by Nubians in Kenya for generations. The Commission’s decision commands a fair and just end to that struggle. Kenya’s land tenure policy is also undergoing reforms. The Nubian decision requires that the new law provides a solution for communities like the Nubians in Kibera, to ensure secure rights to live and thrive on community land, even in a densely populated urban capital like Nairobi. 2 3 FACTSHEET
CONTACT INFO
Gaye Sowe [email protected] Laura Bingham [email protected] The Open Society Justice Initiative uses law to protect and empower people around the world.
Through litigation, advocacy, research, and technical assistance, the Justice Initiative promotes
human rights and builds legal capacity for open societies. Our staff is based in Abuja, Amsterdam,
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The Institute for Human Rights and Development in Africa (IHRDA) is a pan–African nongovernmental organization working to promote awareness of human rights in Africa and improve
the effectiveness of the African human rights system. The IHRDA’s key goal is an African continent
where all have access to justice via national, African and international human rights mechanisms.
The IHRDA’s work encompasses defending, through human rights litigation and implementation of
decisions; educating, including capacity building for legal professionals and civil society actors;
and informing, through publicizing and analyzing case law decisions at the national and regional
level.
1
See African Commission on Human and Peoples' Rights, 234: Resolution on the Right to Nationality, 23 April 2013, available at: http://www.refworld.org/docid/51adbcd24.html; African Commission on Human on Peoples' Rights -­‐ The Right to Nationality in Africa, May 2014, available at: http://www.refworld.org/docid/54cb3c8f4.html. 2
The 2010 Constitution eliminated gender discrimination and relaxed restrictions on dual nationality and, in Article 12, expressly guarantees the right to any document of registration. In 2011, Kenya adopted a new Citizenship Act, which also contains important protections against statelessness, including an avenue for stateless people to apply for Kenyan nationality by registration (Section 15).