Nubian Community in Kenya v. Kenya
Without Papers, Who Are You?
The Nubians were brought to Kenya over 100 years ago by the British, and have been treated as foreigners ever since. Because of their ethnic and religious origins, they are forced to go through a lengthy and humiliating vetting process in order to obtain the ID cards that are essential for everyday life. This lack of effective access to citizenship leaves them with a second class status, condemned to live in poverty. The African Commission on Human and Peoples’ Rights found that Kenya’s arbitrary procedures that restrict access to identity documents based on an individuals’ religious or ethnic identity violated the African Charter on Human and Peoples’ Rights.
Facts
The Nubian community of Kenya is composed of up to 100,000 descendants of people originally from the territory of the Sudan, who were brought to Kenya over 100 years ago to serve in the East African Rifles, a regiment of the British colonial armed forces. On demobilization, the colonial authorities refused to allow Nubians to return to Sudan, instead settling them in Kibera, near Nairobi, and other parts of Kenya, where they still live today. However, the colonial authorities considered Nubians to be “aliens,” and after independence consecutive governments perpetuated this treatment by refusing to acknowledge the Nubians as citizens. Today, the citizenship of Kenyan Nubians is still not assured.
Nubians are discriminated against in that they are required to go through a long and complex vetting procedure to obtain the ID card that is necessary for recognition of their citizenship and essential for everyday life. To qualify for an ID, Nubians must: obtain the identification cards of their parents and grandparents, which may be impossible to find; appear before a committee of elders; and swear an oath and pay a fee before a Magistrate. Many face substantial delays in obtaining their ID card, or never succeed in doing so, and are left essentially stateless. Without an ID card they cannot vote, travel, attend university, get married, obtain official employment, enter government buildings, purchase property, or carry out many other essential everyday tasks.
The Kenyan Government has never accepted the property rights of Nubians in their ancestral homeland of Kibera, insisting that they are squatters on government land. Instead, the government is forcibly evicting Nubians. The government further discriminates against the community by refusing to provide any utilities or public services to Kibera, arguing that the Nubians are “squatters.” This leaves the Kenyan Nubians in an enclave of poverty, marginalized from the rest of society and with few life prospects. While other groups living in Kibera have the option of returning to their homeland, the Nubians have only one ancestral homeland in Kenya—Kibera.
Open Society Justice Initiative Involvement
The Justice Initiative worked with local partners—the Institute for Human Rights and Development in Africa (IHRDA) and the Centre for Minority Rights Development (CEMIRIDE)—to gather evidence, prepare, and file an application to the African Commission on Human and Peoples' Rights challenging various violations of the African Charter on Human and Peoples' Rights on behalf of Kenyan Nubians.
Arguments
Discrimination in Access to Nationality. Kenyan public authorities treat Nubians differently from other Kenyans without justification. Nubians are the only non-border ethnic group required to go through a complex and humiliating vetting process to secure the ID card that is essential to obtain recognition of their Kenyan citizenship, contrary to Articles 2, 3, and 19 of the African Charter.
Arbitrary Deprivation of Nationality. The vetting process leaves Kenyan Nubians with a tenuous citizenship status by which they are deprived of effective access to their Kenyan citizenship and left in an uncertain state as to whether they will be granted citizenship at all, contrary to Article 5 of the African Charter and international law.
The Prohibition of Statelessness. Those Kenyan Nubians who are unable to obtain the ID card which is essential to obtain recognition of their Kenyan citizenship are left stateless, a situation which is prohibited in international law.
Breach of Respect for Property Rights. As a result of the historical failure to recognize Nubians as citizens and their ongoing tenuous citizenship status, Kenyan Nubians have never been given legal protection for their ancestral homeland of Kibera, contrary to Article 14 of the African Charter.
Consequential Violations. The long history of discrimination with regard to Kenyan Nubians’ citizenship and property rights has led to their marginalization, which is perpetuated by the government’s failure to provide equal access to education, health care, work, movement, and political participation, leading to further violations of the African Charter.
Degrading Treatment. The discriminatory deprivation of nationality and marginalization of the Kenyan Nubians violates their right to dignity and amounts to degrading treatment, contrary to Article 5 of the African Charter.
The African Commission on Human and Peoples’ Rights found that procedures for granting access to documentation of citizenship cannot be based on the applicants’ religious or ethnic background. The decision clarified the state’s affirmative obligation to prevent statelessness under the African Charter. Kenya must dismantle its “vetting” system, a cluster of arbitrary administrative processes that apply only to certain minority groups seeking national identity cards. The Commission also found that discrimination in access to national identity cards hampered the Nubians’ individual and collective autonomy. The Commission then made several specific recommendations to the government of Kenya:
- “Establish objective, transparent and non-discriminatory criteria and procedures for determining Kenyan citizenship”
- Recognize Nubian land rights over Kibera by granting them “security of tenure”
- Address the problem of discriminatory and arbitrary evictions of Nubians by ensuring that all actions follow international human rights standards.
Nubian Rights Forum challenges the introduction of a digital identification system (Huduma Namba) in Kenya, arguing that the Kenyan government has failed to address the discrimination that Nubians and other communities face in accessing documentation proving their identity and right to a nationality. Justice Initiative lawyers support the case, which was filed in Nairobi’s High Court as a constitutional petition
Open Society Justice Initiative files briefing on the status of implementation, pursuant to Rule 112 of the Commission’s Rules of Procedure.
Decision of the African Commission that Kenya violated the African Charter on Human and Peoples’ Rights.
The Justice Initiative, IHRDA, and CEMIRIDE submit their arguments on the merits of the case to the African Commission.
The African Commission at its 46th Session declares the case admissible.
Hearing on admissibility held at the 41st session of the Commission. The government of Kenya submits a lengthy brief including both admissibility arguments and arguments on the merits.
Justice Initiative, IHRDA, and CEMIRIDE file complaint with the African Commission including a memorandum on admissibility.
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