Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v. The Government of Kenya
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC)
22 March 2011
Other International Provisions:
African Charter on the Rights and Welfare of the Child (“African Children’s Charter”): Preamble; Articles 3 (prohibition on unlawful/unfair discrimination); 4 (best interests of the child); 6(2), (3) and (4) (right to have a birth registration, and to acquire a nationality at birth); 11(3) (equal access to education); 14 (equal access to health care); 31 (responsibility of the child); 44 (communications); 46 (sources of inspiration); 11(2)(h), 14(2)(h) and 20(2) (participation of the community)
African Charter on Human and Peoples’ Rights, Article 56(7)
Constitutive Act of the African Union
Charter of the Organization of African Unity
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights, Article 24(3)
International Convention on the Elimination of All Forms of Racial Discrimination
Convention to Eliminate All Forms of Discrimination Against Women
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
Convention on the Rights of Persons with Disabilities
Convention relating to the Status of Stateless Persons
Convention on the Reduction of Statelessness
UN Declaration on the Rights of the Child
Children’s Act 2001
Constitution of Kenya 2010, Articles 12(1)(b), 14(4)
Kenya Citizenship Act, Cap 170 of the Laws of Kenya
Constitution of Kenya 1963, Chapter IV
The Nubians in Kenya originated from Sudan and were brought to and settled in Kenya by the British during the colonial period. They were granted neither British citizenship, nor Kenyan citizenship following Kenya’s independence in 1963, and for a long period of time were consistently treated by the Kenyan government as “aliens” as they did not have any ancestral homeland within Kenya. Because many Nubians who were parents often did not have valid identification documents, their children could not be registered at birth. Even when the children were registered, their birth registration certificates were not proof of citizenship. This led to the statelessness of many children of Nubian origin. This complaint brought on behalf of Nubian children alleged violations of several articles of the African Children’s Charter (“Charter”), including the right to have a birth registration and to acquire a nationality at birth, prohibition on unlawful discrimination, equal access to education, and equal access to health care.
Issue and resolution:
The right of the child to birth registration and to acquire nationality; statelessness; discrimination; access to health care and education. The Committee found that the Kenyan government’s failure to register Nubian children’s births and its differing treatment of Nubian children violated the Charter. It also found consequential violations of the children’s rights to equal access to health care and education.
The Committee held that the Kenyan government’s practice of failing to register Nubian children violated article 6(2) of the Charter, which imposes a duty to register children immediately after birth. The Committee concluded that, although not all Nubian children are stateless, a significant number of them were rendered stateless due to the failure to register their births. This resulted in violations of articles 6(3) and (4) of the Charter, under which Kenya must allow a child to acquire Kenyan nationality if they are born in Kenya and have not been granted nationality elsewhere. The Committee also concluded that the different treatment of Nubian children by the Kenyan government constituted unjustified discrimination contrary to article 3 of the Charter. As a result of the non-recognition of Nubian children’s nationality, the Committee also found that these children were denied equal access to health and educational services, in violation of articles 14 and 11(3) of the Charter respectively.
The Committee recommended that the Kenyan government:
- ensure that Nubian children in Kenya who are stateless can acquire Kenyan nationality and proof of such nationality at birth;
- implement its birth registration system in a non-discriminatory manner, and ensure that Nubian children are registered immediately after birth; and
- ensure the fulfilment of the right to the highest attainable standard of health and the right to education.
Excerpts citing CRC and other relevant human rights instruments:
25. At the outset, it should be mentioned that the African Children’s Charter explicitly mandates the African Committee, in Article 46 of the Charter, to:
… draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples' Rights, the Charter of the Organization of African Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights, and from African values and traditions.
It is based on this explicit legislative mandate that the African Committee makes reference to laws, and jurisprudence from other countries or treaty bodies in Africa and elsewhere.
40. Both the African Committee (2009) and the CRC Committee (2007) have already recommended through their concluding observations to the Government of Kenya that there is some gap in the State Party’s birth registration practice, partly reflected in the number and categories (such as children born out of wedlock, children of minority groups, and children of refugee, asylum-seeking or migrant families) of births that go unregistered. Unregistered children are not issued birth certificates and thus rendered stateless, as they cannot prove their nationality, where they were born, or to whom.
42. In this respect, the African Committee is of the view that there is a strong and direct link between birth registration and nationality. This link is further reinforced by the fact that both rights are provided for in the same Article under the African Children’s Charter (as well as the UN Convention on the Rights of the Child). The African Committee notes that Article 6(3) does not explicitly read, unlike the right to a name in Article 6(1), that “every child has the right from his birth to acquire a nationality”. It only says that “every child has the right to acquire a nationality”. Nonetheless, a purposive reading and interpretation of the relevant provision strongly suggests that, as much as possible, children should have a nationality beginning from birth. This interpretation is also in tandem with Article 4 of the African Children’s Charter that requires that “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. Moreover, this interpretation is further supported by the UN Human Rights Committee that indicated: “States are required to adopt every appropriate measure, both internally and in cooperation with other States, toensure that every child has a nationality when he is born” (African Committee’s emphasis).
47. At the global level, a range of instruments recognise the right to acquire a nationality, albeit with varying formulations. (FN15. These instruments include the Universal Declaration of Human Rights (UDHR); International Covenant on Civil and Political Rights (ICCPR); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention on the Rights of the Child (CRC); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW); and the Convention on the Rights of Persons with Disabilities (CRPD).) Here, it is worth mentioning that, as Doek rightly explains, international human rights law has shifted from the position that “the child shall be entitled from his birth (...) to a nationality” (FN16. Principle 3 of the UN Declaration on the Rights of the Child of 1959), to one mandating that the child “shall acquire a nationality” (Article 7(1) of CRC, Article 24(3) of ICCPR). The same wording and position is transparent under Article 6 of the African Children’s Charter. The reason for such a shift is because it is felt that “a State could not accept an unqualified obligation to accord its nationality to every child born on its territory regardless the circumstances”.
48. Therefore, under general international law, States set the rules for acquisition, change and loss of nationality as part of their sovereign power. However, although states maintain the sovereign right to regulate nationality, in the African Committee’s view, state discretion must be and is indeed limited by international human rights standards, in this particular case the African Children’s Charter, as well as customary international law and general principles of law that protect individuals against arbitrary state actions. In particular, states are limited in their discretion to grant nationality by their obligations to guarantee equal protection and to prevent, avoid, and reduce statelessness. (FN19. In this regard, the African Committee is of the view that African States, including Kenya, need to be encouraged and supported to ratify and implement fully the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.)
62. The affected children had less access to health services than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available health care resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer facilities and a disproportionately lower share of available resources as their claims to permanence in the country have resulted in health care services in the communities in which they live being systematically overlooked over an extended period of time. (FN26. This can also be said to affect their right to development under the African Charter on Humans and Peoples’ Rights, to which the Republic of Kenya is also a States Party. See, too the right to survival and development provided for on Article 6 of the UN Convention on the Rights of the Child, as well as Article 24 dealing with the right to health.)
65. The affected children had less access to educational facilities for the fulfilment of their right to free and compulsory primary education than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available educational services and resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer schools and a disproportionately lower share of available resources in the sphere of education, as the de facto discriminatory system of resource distribution in education has resulted in their educational needs being systematically overlooked over an extended period of time. (FN28. This can also be said to affect their right to development under the African Charter on Human’s and Peoples’ rights, to which the republic of Kenya is also a states party. See, too the right to survival and development provided for on article 6 of the UN Convention on the Rights of the Child [sic], as well as article 24 dealing with the right to health.)
CRIN believes this decision is consistent with the CRC. Article 7 of the CRC protects a child’s right to be registered immediately after birth and to acquire a nationality, and requires states to ensure implementation of these rights, in particular where the child would otherwise be stateless. Furthermore, Article 2 prohibits discrimination of any kind, irrespective of the child’s or their parent’s birth or other status. The CRC also protects children’s access to health care and educational services under Articles 24 and 28 respectively.
Communication: No. Com/002/2009
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.