On the Agenda in Algiers: African Children's Rights and Nationality
By Laura Bingham
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) will meet for its 18th Session in Algiers next week (November 27 – December 1, 2011), providing an important occasion for states, civil society organizations, international human and children’s rights organizations and other stakeholders to come together to deliberate on the status of children’s rights in Africa.
The upcoming session follows shortly upon the publication of the Committee’s first ever decision on a Communication filed under its complaints procedure, relating to discrimination in access to nationality for Nubian children in Kenya. The decision’s significance extends well beyond Kenya, however, as it solidifies important principles about children’s right to nationality and their entitlement to equal access to economic and social rights, as guaranteed by the African Children’s Charter, which the Committee monitors. The Committee’s dedication and commendable engagement on these issues deserves recognition from the human rights community in Africa and globally.
Since starting work in 2002, the Committee has withstood perpetual underfunding and logistical limitations that have to some extent prevented it from functioning as efficiently and effectively as it could. Nevertheless, the groundbreaking Nubian children decision should alert actors throughout the world to its ability to serve as a powerful tool to advance the rights of children. It is a strong counterpart to other African rights protection mechanisms, such as the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, as well as international treaty monitoring such as the UN Committee on the Rights of the Child and the UN Committee on the Elimination of All Forms of Discrimination.
In its well-reasoned analysis, which drew on an impressive variety of international and regional jurisprudence, the ACERWC affirms important principles which are crucial to eradicating statelessness and minimizing discrimination against vulnerable minorities.
Specifically, it upheld the vital norm that the child should acquire the nationality of the State in which she is born, if she or he would otherwise be stateless; and further affirmed that States must proactively take all necessary measures to prevent a child from being or becoming stateless.
Kenyan Nubians have historically been regarded as “aliens” and still have a tenuous citizenship status, preventing them from enjoying many of their rights. This particularly affects Nubian children, who are not registered as Kenyans at birth. They grow up with few life prospects, uncertain as to whether they will be recognized as citizens. Most Nubians live in enclaves of poverty, with no public utilities and limited access to education and healthcare. The ACERWC found that such discrimination leading to statelessness violates African human rights standards.
The case was found to be admissible because national proceedings had effectively stalled, making the case an exception to the requirement to exhaust domestic remedies before turning to the Committee. The Committee noted that “the implementation and realization of children’s rights in Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.”
On the merits, the Committee found Kenya’s actions violated Article 6, the Charter’s provision protecting children’s right to nationality, observing that statelessness is the antithesis of the best interests of the child (protected under Article 4). It clarified that the child’s right to acquire a nationality means “children should have a nationality beginning from birth.” The Committee also found Kenya’s citizenship confirmation procedures unlawfully discriminate against Nubian children in violation of Article 3, leaving them stateless or at risk of statelessness with no legitimate hope of gaining recognition of their citizenship. As a result, Nubian children lack access to adequate healthcare and education, in violation of Kenya’s obligations to provide the highest attainable standard of health and education to all children (Articles 14(2)(a)-(c), (g) and Article 11(3), respectively).
It also made five key recommendations:
1. That the Government of Kenya should take all necessary legislative, administrative, and other measures in order to ensure that children of Nubian decent in Kenya, that are otherwise stateless, can acquire a Kenyan nationality and the proof of such a nationality at birth.
2. That the Government of Kenya should take measures to ensure that existing children of Nubian descent whose Kenyan nationality is not recognized are systematically afforded the benefit of these new measures as a matter of priority.
3. That the Government of Kenya should implement its birth registration system in a non-discriminatory manner, and take all necessary legislative, administrative, and other measures to ensure that children of Nubian descent are registered immediately after birth.
4. That the Government of Kenya to adopt a short term, medium term and long term plan, including legislative, administrative, and other measures to ensure the fulfillment of the right to the highest attainable standard of health and of the right to education, preferably in consultation with the affected beneficiary communities.
5. That the Government of Kenya report on the implementation of these recommendations within six months from the date of notification of this decision, and the Committee will appoint one of its members to follow up on the implementation of this decision.
During its 18th Session, the Committee is scheduled to consider state reports by Cameroon, Niger and Senegal. It will also deliberate on another Communication during a private hearing, and hear a report on child mutilation and trafficking body parts in Southern Africa, presented by the group HumanAfrica. A civil society forum will take place immediately before the Session opens.