African Tribunal Reinforces Nationality Rights for Children

The African Union tribunal responsible for protecting children’s rights has urged Kenya to grant citizenship to children of its Nubian minority, in a ruling that marks a victory in the battle against statelessness across the continent and beyond.

The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child found Kenya in violation of Article 6 of the African children’s rights charter, which protects children’s right to nationality, in response to a complaint from the Open Society Justice Initiative and the Institute for Human Rights and Development in Africa (IHRDA).

Its decision, taken earlier this year but only recently made public, said the African Charter on the Rights and Welfare of the Child requires states “to make sure that all necessary measures are taken to prevent the child from having no nationality.” It specifically called on Kenya to ensure that children born on its territory who would otherwise be stateless acquire Kenyan nationality by birth.

James A. Goldston, executive director of the Open Society Justice Initiative, welcomed the ruling, saying: “This decision marks a major advance in legal protection for stateless persons.”

“In affirming that states must ensure that every child has a nationality when he or she is born, and underscoring the crucial role of a non-discriminatory system of birth registration in preventing statelessness, the African Committee has raised the bar for other courts in Africa and around the world.”

Although Nubians have lived in Kenya for generations, the Kenyan government continues to regard them as “aliens,” preventing them from acquiring Kenyan citizenship by birth and consequently denying them access to basic rights and social services.

Kenyan birth certificates specifically state that they do not convey nationality.

Nubian children grow up in enclaves of poverty with no legitimate expectation that their Kenyan nationality will ever be recognized.

The committee, in its first ever ruling, also concluded that Kenya’s actions amounted to unlawful discrimination against children of Nubian descent in Kenya, a violation of Article 3 of the Charter. It also concluded that Kenya had violated the rights of Nubian children to enjoy the “highest attainable standard of health and the right to education.”

The ruling comes as Kenya is engaged in a review of its nationality laws under its new 2010 Constitution. Both the Open Society Justice Initiative and the Open Society Institute for East Africa (OSIEA) are concerned that four draft nationality laws about to be tabled before the Kenyan Parliament contain inadequate provisions to eliminate statelessness and prevent discrimination on the basis of ethnicity.    

Binaifer Nowrojee, executive director of OSIEA, said: “Kenya should heed this call, and use the current review of laws to right this injustice. To miss this opportunity would be a tragedy for Kenya’s Nubian citizens, and for the country as a whole.”