Case Watch: An African Victory in the Struggle against Statelessness

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

A decision by an African regional children’s rights committee delivered on behalf of tens of thousands of children in Kenya who grow up without citizenship rights has set a new standard for tribunals  both in Africa and around the world in the battle against statelessness.

The African Committee of Experts on the Rights and Welfare of the Child  (ACERWC) said in a decision released on September 30 that Kenya’s laws and practices related to acquisition and proof of citizenship discriminate against children from its Nubian minority,  based on their ethnicity, leaving Nubian children stateless or vulnerable to statelessness.

The Committee, set up to monitor the African Charter on the Rights and Welfare of the Child in 2001, was responding to a complaint filed by the Gambia-based Institute for Human Rights and Development in Africa and the Open Society Justice Initiative. This was the Committee’s very first decision on an individual complaint.

Although Nubians have lived in Kenya for over 100 years, the Kenyan government has historically regarded them as “aliens,” preventing them from acquiring Kenyan citizenship, and consequently from enjoying many of their basic rights.  Kenyan birth certificates specifically state that they do not convey nationality. At age 18, Nubians, on the sole basis of their ethnicity, must be vetted before receiving identity cards, which some never receive.  Nubian children grow up in enclaves of poverty with no legitimate expectation that their Kenyan nationality will ever be recognized.

Article 6 of the Charter protects children’s right to nationality. The Committee’s decision makes clear that to comply with this article, “States Parties need to make sure that all necessary measures are taken to prevent the child from having no nationality.” The Committee specifically called on Kenya to ensure that children born in Kenya who would otherwise be stateless acquire Kenyan nationality by birth.

It 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, expressing its view that, in fact, positive measures should be taken “to facilitate procedures for the acquisition of a nationality for children who would otherwise be stateless.”

The Committee also emphasized that basic economic and social rights such as healthcare and education are “essential elements of human rights in Africa,” and concluded that by failing to grant citizenship rights Kenya violates the rights of Nubian children to enjoy the “highest attainable standard of health and the right to education.”

The situation of Nubians in Kenya illustrates in particular how citizenship laws in Africa following independence have resulted in statelessness or the risk of statelessness. As the Committee observed, “the root causes of statelessness are complex and multifaceted including state succession, decolonization, conflicting laws between States, domestic changes to nationality laws, and discrimination.”

The decision spells out five detailed recommendations to the government of Kenya in order to bring its practices in line with its obligations under the Charter. The recommendations are targeted and specific and they echo the recent recommendations made by the Committee on the Elimination of all Forms of Discrimination (CERD) in its Concluding Observations on Kenya, which called on Kenya to “make the necessary amendments to its legislation and administrative procedures” to ensure that all citizens are treated equally with respect to obtaining documentary proof of nationality.

Unfortunately, in late August 2011, Kenya passed a new citizenship law that fails to recognize the most fundamental protection against statelessness: granting nationality to children born on Kenyan soil who would otherwise be stateless. This action runs contrary to the very crux of the Committee’s decision.

Kenya must act immediately to fulfill all of the Committee’s recommendations. As the Committee itself made clear: “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.”

Beyond Kenya, the Committee’s ruling represents an equally compelling achievement for children’s rights advocates generally, as the Committee clearly views itself as a vehicle for progressive development and defense of human rights for children.

The ACERWC was established by the Organization of African Unity after the Children’s Charter came into force in November, 1999. It is currently the only children’s rights treaty body with a mandate to adjudicate individual cases and the decision marks a promising first step, both for its steady interpretive focus on the best interests of the child principle and for its sophisticated and wide-ranging legal analysis, displaying expertise across different regional and international human rights mechanisms and intersecting fields of human rights practice.

The decision is also an important development in the global campaign against statelessness, particularly in light of the Committee’s inclusive interpretation of Article 6 of the Children’s Rights Charter, clarifying that a child’s right to nationality requires that every child has a nationality when he or she is born. This includes an obligation on States Parties to grant nationality to children born on their territories who would otherwise be stateless—an obligation that, if recognized by all states, would significantly reduce the number of people around the globe trapped in the limbo of statelessness.