Nubian Minors v. Kenya (2019)

Court: African Committee of Experts on the Rights and Welfare of the Child

Date: March 22, 2011

Citation: Communication No. 002/Com/002/2009

Background

The Nubian population within the territory of Kenya has a long and complicated history, which began well before the period of independence. They were brought to this part of the world by the British colonialists. Despite being a citizen with a significant history in the country, especially in Kenya, history has shown that Nubians have suffered all forms of discrimination and marginalization especially on issues to do with citizenship. This community, which is originally from Sudan, was settled in Kenya during the British colonial rule but none of them was given the right to nationality. As a result, they have been treated like stateless persons, existing without recognition in the law and without the ability to access basic services. After Kenya attained independence in the year nineteen sixty-three, the Nubians were further protected by being considered Encroachers all of which had a negative bearing on their rights and opportunities. Policies implemented by the Kenyan government have excluded Nubians from full engagement in the society leading to general economic deprivation and lack of access to education, health care and other essential services. The complaint arose when the Institute for Human Rights and Development in Africa (IHRDA) and the Open Society Justice Initiative represented the case of Nubian minors by filing a communication with the African Committee of Experts on the Rights and Welfare of the Child. It detailed allegations of breaches of the provisions of the African Charter on the Rights and Welfare of the Child with certain parts of the complaint concentrating on issues emanating from citizenship, discrimination and other basic rights.

Facts of the Case

The Nubians have inhabited Kenya for many years but because of their ancestry, they have been denied citizenship rights. This has therefore created structural constraints on the availability of even the most basic services.

1. Birth Registration Issues: Most Nubian mothers and fathers were not able to register their children at birth because they did not have identification documents themselves. Whenever registration took place, certificates of birth issued did not grant citizenship status. Birth registration process limitation not only at risked legal status of Nubian children but also limited their capacity to be educated or receive health services.
2. Vetting Process for Citizenship: The Kenyan government inflicted heavy scrutiny on Nubians who sought identification papers and made it clear that other ethnicities were not expected to go through such. In this process questions pertaining to one’s roots and residence were asked in detail which made the seeking of citizenship frustrating and especially time-consuming. Many of the Nubians went through demeaning processes that made them to justify their citizenship.
3. Consequences of Statelessness: These practises resulted in localized deprivation of many Nubian children of their right to healthcare and education, thus entrenching poverty and marginalization. These children, considered stateless and without nationality were also unable to register in schools or receive good health services, thus worsening their socio-economic status.
4. Discrimination Against Nubians: The campaign of intolerance directed to the Nubian community inflicted not only on citizenship issues but also on the perceptions held by the society. They were regarded as immigrants or second-class people within the Kenyan context – a reason for segregation and stigma.
5. Legal Action Initiated: It is considering these circumstances where injustice prevailed that IHRDA and the Open Society Justice Initiative

Court Decision

In the current case, the African Court of Justice on the Rights and Welfare of the Child (ACERWC) State Parties has identified several contraventions of the African Charter on the Rights and Welfare of the Child by the Kenyan state:

1. Article 6(2): The right to be registered at birth and to acquire a nationality at birth without any encumbrances.
2. Article 3: Protection from arbitrary discrimination based on ethnicity.
3. Articles 11(3) and 14: Right to access education and health services without discrimination.

The Committee also found that because Nubian children were not able to get their births registered, they were rendered stateless, or at risk of being stateless, which was against the provision of the Charter. In addition, the vetting process which was used was discriminatory and therefore was not in line with the tenets of equality.

Recommendations

The ACERWC, in its decision, undertook measures aimed at mitigating violations as follows:

1. Birth Registration at Once: The Committee called the Kenyan government, including Mombasa County, to avoid discrimination, particularly in registering all Nubian infants at birth. This is an essential step towards recognizing them legally as constituents.
2. National Identity Documentation: The Committee sought to ease the process of acquiring citizenship documentation for Nubians so that citizenship is not a cause for statelessness. This encompasses changing old statutes that are unnecessarily restrictive to minority groups in the application for citizenship.
3. Legislative Reforms: The ACERWC urged Kenya to eliminate and fine-tune certain provisions of the Law which are marginalized towards the minority communities. This is aimed at recognizing every child born in Kenya as a citizen by birth.
4. Awareness Campaigns: The Committee proposed that awareness campaigns should be carried out in the Kenyan public towards the negative stereotypes aimed at the Nubian community, to promote inclusion instead of exclusion.

Conclusion

The dispute concerning Nubian Minors v. Kenya is of pressing importance in the quest for universal human rights and social equity especially in the ethnic minority groups in Kenya at the much wider context. It familiarizes one with the entwined concepts of citizenship, discrimination, and children’s rights and how such concepts can be used as a basis for understanding the cycle of historic injustice and its modern-day effects. The suffering of the Nubians, while of national proportions, demonstrates the negative effects of statelessness, which does not only inconvenience the persons concerned but rather destroys the nation as whole.

This ruling of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) A very important ruling which provides changing principles in as far as citizenship issues and discrimination of minority groups is concerned. In upholding the right of the Nubian children to be registered at birth and issued with a nationality, the Committee did not only address the issue at hand but also provided a basis for addressing the issue in subsequent cases concerning disadvantaged groups. This case demonstrates the potential of regional human rights systems in the protection of all communities in particular the disadvantaged and in enforcing the states’ responsibilities under international law.

Also, the suggestions of AKERWC are not just legal suggestions but serve as an intervention for the Kenyan State to take appropriate steps to reform the situation that has persistent inequalities. This is indeed a positive way to ensure that Nubian children exercise their rights, without being subjected to unnecessary red tapes or other forms of discrimination, that, focused on the need for birth registration as a priority and the need for citizenship to be simplified. Furthermore, however, the emphasis on legislative changes to eliminate discrimination practices includes an understanding of the need for such changes to go hand in hand with acceptance of everybody within the policies and practices of the state that promote equity. This case also underscores how prevailing attitudes create or prevent certain experiences among communities considered as minorities. What is more, eliminating such stereotypes and promoting inclusion are necessary for ensuring social peace and harmony. Educational programs on the rights of minorities, addressed not just to officials but also to ordinary citizens, can also be useful in this respect as they can help eliminate biases and build understanding instead.

Moreover, this case emphasizes the interdependence of rights, as in how one’s ability to access a nationality determines how well one can get education, health, and other services. Citizenship is important, legally, but it is more important for the development and future of the child. In so doing, Kenya will seek to achieve its national and international obligations relating to human rights, as concerns the provision of these services to all children without discrimination to any of them. Nubian Minors v. Kenya is not just a simple litigation, but it is replete with stories about aspirations, conflicts, achievements, and a sense of belonging in an environment where all forms of discrimination are prevalent. It calls out to all—governmental agencies, non-state actors, and global organizations—imploring them to make efforts towards realizing a world where every child’s rights are upheld. In this regard, as Kenya begins to put the Committee’s proposals into practice, it has a very good chance of demonstrating to the international community, the regard it has for human rights, and a good example of how such respect for human rights can be extended to the intra state, citizenship, and minority issues that afflict some countries. The issue of justice and redress in relation to the Nubian child is in itself an issue that seeks to restore one’s worth and equality which knows no bounds in that every child should enjoy the right to be within any society they choose and be treated with respect together with all other rights that should be enjoyed and actively operational.

References

1. Institute for Human Rights and Development in Africa (IHRDA) & Open Society Justice Initiative v. Government of Kenya [2011] ACERWC Communication No. 002/Com/002/2009.
2. Kubrak Journal of Law and Ethics, “Update on Kenya’s implementation of the decision in the Nubian minors’ case,” DOI: 10.58216/kjle.v6i1.205.https://journals.kabarak.ac.ke/index.php/kjle/article/view/205
3. Child Rights International Network (CRIN), “Nubian children and the struggle for citizenship.”
4. Open Society Justice Initiative, “Nubian Community in Kenya v. Kenya.”
5. African Committee of Experts on the Rights and Welfare of the Child (ACERWC), “General Comment No 5 on Article 6 (Right to Birth Registration).”