“To conclude, a year in the life of a child is almost six percent of his or her childhood…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”^[1]

Background

The struggle for nationality and the fight against statelessness define the lived realities of many marginalized communities across Africa since independence, due mainly to the continent’s colonial history, characterized by forced labour, conscription, unjustified relocations and unnecessary territorial demarcation and adjustments. This is the situation of the Nubian community in Kenya, who are descendants of ex-Sudanese forcefully relocated from the Nuba Mountains in Sudan and conscripted by the British colonial administration in the early 1900s to help conquer and police the British East African colonies, including the current-day Kenya. They were granted temporary settlement mainly in Kibera and other settlements, including Bondo, Kisumu, and other areas in Kenya. They were neither granted permanent land rights nor full citizenship. Many Nubians, having been born in Kenya, know no other home but Kenya, as their parents and grandparents were also born there.^[2]

At Kenya’s independence in 1963, the citizenship status of the Nubians was not directly addressed, and for a long period of time they were consistently treated as “aliens” since the government considered that they did not have any ancestral homeland within Kenya. The Nubians and their children were therefore refused registration as Kenyan citizens and consequently denied Kenyan passports, National Identity Cards, birth certificates, and the benefits enjoyed by other Kenyan citizens, including political participation, social development, education, basic services, and legal protection.^[3]These problems persisted for close to five decades.

In January 2006, the Institute for Human Rights and Development in Africa (IHRDA) and the Open Society Justice Initiative (OSJI) lodged a complaint on behalf of the Nubian community against Kenya before the African Commission on Human and Peoples’ Rights (the Commission). The complaint alleged that Kenya, by its conduct, violated the Nubians’ rights to nationality, non-discrimination, property, work and freedom of movement and residence, among others. It was not until 9 years later, in February 2015, that the Commission decided the matter on the merits, finding Kenya in multiple violation of the Nubians rights including their rights to equality, non-discrimination, dignity,  property, and other consequential rights and made necessary recommendations. It must be emphasized that the undue delay in the determination of communications generally before the Commission remains a greater justice concern to date. This is risking litigants becoming reluctant to approach the Commission for redress, except as a matter of last resort.  

In April 2009, almost three years since the case before the Commission was pending without reasonable headway, IHRDA and OSJI, concerned about the peculiar irreversible impact that the situation has had on Nubian children and the urgency that the matter deserved, lodged a similar complaint before the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) but with a focus on the violations suffered by the Nubian children in terms of the African Charter on the Rights and Welfare of the Child. On 22 March 2011, exactly 2 years from the date the complaint was lodged, the Committee commendably decided the matter on the merits and handed down a historic decision on children’s right to nationality – which is the focus of this case spotlight. That decision happened to be the Committee’s first ever merit decision.  It was while determining the issue of admissibility in the case, especially the exhaustion of local remedies requirement, that the Committee made its signature pronouncement – cited in the opening of this case spotlight- that became one of the most important precedents cited, in whole or part, in almost every subsequent decision of the Committee to make a case for an exception based on the best interest of the child in any case where the issue of exhaustion of local remedies is contested.

The Complaint 

IHRDA and OSJI alleged that Kenya had, by its treatment of Nubian children, violated their rights under Article 6(2), (3) and (4) of the African Children’s Charter which guarantee every African child the rights to be registered immediately after birth and to acquire a nationality. The provision also obligates States Parties to “ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws”.^[4] This allegation was premised on the fact that some Nubian parents had difficulty having their children registered at birth, as many public hospital officials refused to issue birth certificates to children of Nubian descent.^[5]

Even Nubian children who acquired birth certificates remained stateless, as it was expressly indicated in the birth registration certificate that it is not proof of nationality. They were therefore left to wait until they turned 18 to apply to acquire nationality through a de facto unreasonable and discriminatory vetting process. This formed the basis for alleging the consequential violation of the right to non-discrimination based on their race and ethnicity, the right to the highest attainable standard of health as this led to limited access to medical assistance and primary and therapeutic health resources, and the right to equal access to education as the Nubian community had been provided with fewer schools and a disproportionately lower share of available resources in the sphere of education.^[6]

The Committee’s Decision and Recommendations 

“It is rightly said that birth registration is the State’s first official acknowledgment of a child’s existence, and a child who is not registered at birth is in danger of being shut out of society”^[7]

The Committee held in favour of the Nubian children and found that Kenya violated their rights to be registered at birth, acquire nationality, and non-discrimination based on race and ethnicity. As a consequence of those violations and the ripple effect they have had on the Nubian children, Kenya was equally found in violation of their rights to the highest attainable state of physical and mental health and equal education.^[8]

The Committee acknowledged and commended the then new 2010 Constitution of Kenya adopted during the pendency of the matter, which ushered in several advancements to children’s rights including their right to acquire a nationality. The Committee specifically pointed to Article 14(4), which provides that a child under eight years of age whose parents are unknown is presumed a citizen by birth. However, the Committee considered this inadequate to address the statelessness of many Nubian children.^[9]

The Committee therefore recommended that Kenya take necessary legislative, administrative and other measures to ensure that the stateless Nubian children acquire Kenyan nationality and proof of such a nationality at birth. In addition, the Committee urged the government to ensure that existing Nubian children benefit from the proposed measures “as a matter of priority”. Most importantly, the Committee recommended that Kenya should “implement its birth registration system in a non-discriminatory manner” and take necessary steps to ensure that children of Nubian descent are registered immediately after birth. The Committee further required Kenya to ensure the fulfilment of the Nubian children’s rights to the highest attainable standard of health and the right to education by adopting short-term, medium-term, and long-term plans preferably in consultation with the Nubian community. To activate the implementation process, the Committee required Kenya to report on implementation of its recommendations within six months from the date it was notified of the decision.^[10]

Implementation Status – Sixteen Years Later

Tracking implementation of decisions of the African regional human rights mechanisms including the African Children’s Committee, is usually difficult, as states often do not honour their reporting obligations towards the mechanisms. In the Nubian children’s case, Kenya, like most states, failed to report to the Committee on the status of implementation of the decision within the initial six-month timeline given, or years thereafter. In 2014, OSJI, Namati and Nubian Rights Forum (NRF) submitted a joint report on the status of implementation of the decision to the Committee. They maintained that there was a lack of progress in the implementation of the decision by Kenya, based on the information they gathered and their experiences assisting the Nubian community through their citizenship paralegal project. In 2017, the Committee held an implementation hearing that revealed the substantial non-implementation of the decision in the Nubian children’s case. Consequently, the Committee further recommended that the government of Kenya “develop a roadmap for implementation that was tailored to address the specific practices underlying the charter violations found in the case”. [OSJI] 

A 2022 study on implementation of the decision in the Nubian children’s case by Julie Ingrid Lugulu^[11] revealed that the government of Kenya has, based on some highlighted measures, made efforts to improve birth registration and acquisition of birth certificates by children from stateless communities, including the Nubian children.^[12] The effectiveness of these measures and the extent to which they have addressed the Nubian children’s nationality concerns remain unclear. In addition, Lugulu stated that the exact effect that acquiring a birth certificate has on formalizing citizenship also remained unclear.  The author also maintained that the discriminatory vetting process remained in place, as of the time, and that access to education and health services remained difficult for the Nubian community.^[13]

Until the government of Kenya formally reports on the full implementation of the Committee’s decision in the Nubian children’s case, it is safe to state, based on the foregoing information, that sixteen years thereafter, the decision has only been partly implemented. That is not commendable. 

Key Takeaways

First, it is not out of place to restate  that the decision in the Nubian children’s case was the Committee’s first merit landmark decision and remains an important precedent on children’s right to nationality and the general fight against statelessness in Africa. 

Second, from a human rights litigator’s perspective, the case, given its two-year turnaround time, readily showcased that African regional human rights mechanisms can do better in ensuring timely determination of complaints. The Committee has largely been able to maintain this turnaround time to this day. The African Commission, in particular, needs to do better with its turnaround time, as nine years was certainly too much, if not unreasonable, time to determine the Nubian community case earlier referenced and other cases involving human rights violations. 

Third, the case also demonstrates the implementation concerns that have become a major impediment to the realization of the human rights promises made in African Children’s Charter, the African Charter on Human and Peoples’ Rights, and other human rights treaties. While the Committee must be commended for its implementation follow-up efforts, African states need to complement these efforts through constructive and well-intentioned engagements, feasible implementation plans and timelines that carry the urgency and attention that children-related complaints deserve and, most importantly, intermittent but timely implementation reports.

About the Author: Dr. Abdumalik Bello is a Legal Officer at IHRDA. Malik is a Solicitor and Advocate of the Supreme Court of Nigeria. He holds a PhD in Comparative Constitutional Law from the University of the Western Cape, an MSc in International  Human Rights Law from the University of Oxford and an LLM in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria. 

^[1] Decision of the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee)  in the Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v. Kenaya (Com/002/2009) para 38.

^[2] As above, paras 2 and 3.

^[3] As above, paras 3, 4, and 5.

^[4] Article 6(4) of the African Children’s Charter.

^[5] Para 38 of the decision.

^[6] Para 41, 43, 55, and 63 of the decision.

^[7] Para 38 of the decision (as above).

^[8] Para 69 of the decision (as above).

^[9] Para 53 of the decision (as above).

^[10] Para 69 (1)-(5) of the decision (as above).

^[11] Lugulu JI ‘Update on Kenya’s Implementation of the Decision in the Nubian Minors’ Case’ (2022)6 Kabarak Journal of Law and Ethics

^[12] Lugulu (as above) pg. 213.

^[13] As above, pg. 214 & 215.