By Isaboke M. Wilmah[1]

This paper maintains that the Nubians are nationals of Kenya despite their contested position. By critically examining their legal position under the Laws of Kenya, this paper shall illustrates that indeed they are, have been and can be citizens of Kenya either under the former constitution or the current constitution and that the governments failure to recognize them has led not only to their discrimination but also, achieve those binding obligation stipulated in the Constitution, Regional and International treaties to which it’s a signatory.

Introduction

Urban settings in the Republic of Kenya such as Nairobi(kibera slum), Kisumu, Mumias, kisii, Isiolo, kapsabet, Migori, Meru and Eldama Ravine have become hosts to many Nubian families over the years. Though their definite numbers in Kenya cannot be ascertained [1], the surge of these persons into these settings can be traced back to the reign of the British colonialists in Kenya in the 1900’s. Originally from the Nuba mountains present day central Sudan, many have been born and continue to live in Kenya for decades by virtue of being descendants of the Sudanese men conscripted into the British colonial military , the King’s African Rifles (then called Askaris).[2]

The British ambitions of building a strong empire that comprised of power and richness, saw it desirable to expand their business in their colonies .As it is common knowledge that behind every strong economy lies efficient infrastructures, the British in their quest therefore, enlisted the prowess of the Indians by bringing them into Kenya and other parts of their colonies to build the railway lines and roads. [3] It is interesting to note that despite this two groups contributing differently in their empire creation, the Indians were recognized as British citizens whilst the Nubians were retained as British subjects with no compensation at all. [4] These protections were derived from the British Nationality Act of 1948, [5] and can be supported by opinions of scholars to date.[6]. This off course was a differential treatment whose adverse impact is being felt by the Nubians to date.

Kenya gaining of independence in 1963 did not recognize them as citizens even for those Nubians born and raised in Kenya despite there being provisions in the law that made them eligible for citizenship in Kenya either automatically or by way of application. Due to this negligence of a lack of recognition or a legal framework to protect them, what followed were acts of discrimination levied against the group such as deprivation of their land and access to various services entitled to a citizen. [7] In order to survive, Nubians dispersed into various urban settings of Kenya where they have been leaving like foreigners rather squatters thus far. One would claim that probably if they had been allowed to repatriate back to Sudan in 1939 they would not be in this current predicament.

Having a bite at the National Cake

It’s evident from the forgoing that without recognition as citizens the Nubians were left at a very compromising situation especially in a State like Kenya where proof of citizenship is imperative in accessing services and sharing in the national cake. According to the laws of Kenya specifically the Registration of persons Act[8]requires that every person who has attained the age of 18 and meets the criteria of citizenship under the Constitution (shall be discussed later in the paper) to register with the National Registration Bureau of which they shall be issued with a national identity card as proof of their Kenyan citizenship.

The Kenya national identity card and passports have a lot of consequential benefits for it is only through them that a person can be able to participate in the political, socio economic and cultural life in Kenya. [9] To vote or be elected to a political position is dependant on proof of citizenship which is dependant on the national identity card or passport.[10] Therefore lack of these means there is no involvement in the decision making process for the Nubians on issues affecting them.

Therefore, denied leave to repatriate to Sudan, denied citizenship, displaced but still human and determined to live, the Nubians had to find tactics to survive within Kenya. The methods they have employed so far have or include: a) Dispersing to other areas within the Kenyan territory, marrying and intermarrying and continuing to live their lives. [11], b) Petitioning the Courts of law in Kenya, through the unprecedented case of Yunis Ali and 100,000 others –vs- Principal Registrar of Persons, Principal Immigration Officer and the Attorney General,[12] c) through the Support of Non-governmental organisations such who have not only been instrumental in advocating for their recognition publicly but are behind the communication currently under determination at the African commission on Human and Peoples Rights, communication, 317/06, [13] and finally d) International concerns, these can be indirectly understood from the recommendations made to the Kenyan government by UN bodies to address the issues of indigenous and minorities in its territory.

Its perturbing to say that despite all these efforts by the nubians and in support of the nubians, the government of Kenya has not shown any effectual concern for the nubians in terms of implementing the recommendations and subsequently relieving the nubians of their plight. However neither is the nubians struggle for recognition at a close nor the objective of this paper because of the pending communication at the African Commission as well as the coming into effect of the new constitution of Kenya on the 27th of August 2010 which by way of reference maintains that certain sections of the former constitution related to citizenship still applies and therefore as asserted earlier which ever law is looked at the nubians are, have been and can be citizens of Kenya.Below is the analysis of this assertions.

Nubians as Nationals In Kenya

According to Kohn[14] he claims that, “citizenship for many of us only matters when we want to travel abroad or to vote in the national elections. However for others it’s always a daily present issue because recognition of ones nationality brings consequential rights and benefits such as healthcare, right to work, education, to vote and equality before the law.”[15] Therefore the lack of it is a great injustice to those so denied. Under International Human rights Law, States are obliged to respect and promote the right to nationality which is derived from Article 15 of the universal declaration of human rights. It provides inter alia that, “Everyone has the right to nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”[16]However as Kohn puts it, States have a wide discretion under international law when defining and determining eligibility for nationality in their respective jurisdictions.[17]

Consequently bearing in mind that International law recognizes the right to nationality, the answer to the question whether the Nubians qualify as nationals and whether the enjoyment of the rights they seek hinge on citizenship has to be sought from the citizenship laws of Kenya.

a) Do they qualify as nationals under the Laws of Kenya?

Citizenship in Kenya is governed by Chapter three of the new constitution[18] and parliamentary legislations such as the Registration of Persons Act[19] and the Kenyan Citizenship Act proscribing for registration of persons in Kenya.[20] It can either be through birth, registration, descent and naturalization.

Under the Constitutions of the Republic Of Kenya.

Be it as it may, the Nubians are entitled to Kenyan nationality whether under the repealed or the new constitution of Kenya by virtue of birth and being descendants of the conscripted Sudanese soldiers who were considered to be British colonialists protected persons. Equally if it is historically challenged that they are aliens, this notion can be counterbalanced with the reasoning that the constitution of Kenya allows naturalization and registration of persons who have lived in Kenya for a period of more than seven years. Hence whatever discriminatory claims offered to deprive the Nubians their right to nationality, the certainty at all times shall be that Nubians are Kenyan nationals.

(i). The former constitution

1. By Birth.

The Former Constitution stipulates that a person shall become a citizen of Kenya by birth and depending on the descriptions under Section 87. Therefore, the Nubians being British protected persons would be eligible for citizenship if born in a family where one of the parents is or was a Kenyan citizen. Article 87 (1) states that:

Every person who, having been born in Kenya, is on 11th December 1963 a citizen of the United Kingdom and colonies or a British protected person shall become a citizen of Kenya on 12th December 1963; Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents was born in Kenya.

Every person who, having been born outside Kenya, is on 11th December 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death, have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December 1963.”[21]

Together with the above section, Nubians citizenship should consequentially and systematically be derived from Section 89 especially for those born after 11th December 1963 without being subjected through highly scrutinized procedures of getting national identifications and services. The Section is to the effect that:

Every person born in Kenya after 1lth December 1963 shall become a citizen of Kenya if at the date of his birth one of his parents is a citizen of Kenya; except that a person shall not become a citizen of Kenya by virtue of this section if at the date of his birth –

a) his father possesses immunity from suit and legal process as is according to the envoy of a foreign state accredited to Kenya; or

b) His father is a citizen of a country with which Kenya is at war and the birth occurs in a place then under occupation by that country.[22]

It is evident from the preceding that under the former constitution, Nubians in Kenya born from families where one of the parents is or was a Kenyan citizen is/was entitled to be recognized as a Kenyan national.

2. By Registration.

Registration of Persons was regulated under Section 92 of the former Constitution[23] and the Current Kenyan citizenship Act. The relevant provisions therein addresses aliens in Kenya who would voluntarily want to acquire Kenyan citizenship by stipulating that they may do so by applying for registration as long as they fulfill certain conditions prescribed by law, one such condition being that they should have resided in Kenya for at least more than ten years .Meaning therefore, those Nubians in Kenya whose parents are not Kenyan citizens are equally eligible to apply for registration, which according to my assertion, Nubians are eligible considering the number of years they have resided in Kenya.

The Kenyan citizenship Act in its preamble makes reference to certain cases that maybe considered for registration, these cases may include the Nubians born before 12th December 1963 and are willing to register and become Kenyan nationals as long as they fulfill the criteria laid out in Section 3.[24] They may as well stand a chance of naturalization. It is imperative to note entitlements that are due to a Kenyan citizen by birth shall also be similar to a person registered as provided by the constitution and section 5 of this Act.

(ii) The New Constitution.

Having examined their nationality status under the former constitution, due consideration has to be given to the current constitution. Rationale for this is grounded on the following two facts; first, it refers to the former constitution sections relating to citizenship providing that those sections on citizenship are not repealed and[25], and second it’s the current binding legal instrument which may perchance extricate them from their identity crisis.

  • By Birth

Currently, citizenship in Kenya is governed by chapter three, sections 12- 18 and the Sixth schedule (Transitional and Consequential provisions)under Article 262, section 30 which refers to the applicability of citizenship provisions of the former constitution that have been discussed earlier.[26] From this point therefore it’s apparent that there is no need to continue with the discourse for it’s already established from above that the Nubians are Kenyan citizens. Section 12 precisely states that for a person to be eligible to the entitlements of citizenship[27], he or she must have either been born in Kenya. Section 14 provides that the person must either be born to a family where one of the parents is a Kenyan citizen.[28]

Therefore under birth, it is apparent that the new constitution refers to the circumstances of acquiring citizenship under the former constitution in the sixth schedule where it has been shown that the Nubians under its auspices would be entitled to Kenyan nationality.

  • By Registration.

It is either by birth or registration as the constitution stipulates. By way of registration the new constitution unlike the former stipulates a person can be eligible for registration so long as he or she has resided in Kenya for seven years and satisfies the requirements under section 15 which from my stand point the Nubians have already established. This section is wide to the effect that it provides for non-national citizens such as children adopted by citizens as being eligible for registration, resulting in their becoming Kenyan nationals. It’s my belief that there are Nubian children adopted in the country and would definitely fall under this category.[29]

The sections over are as crystal clear in so far as the nationality status of the Nubians is concerned. Under registration it presents a chance for the Nubians who have lived in Kenya for at least a period of seven years or married to a citizen for the same period as eligible to be registered as a Kenyan citizen. Further in reference to the Act of Parliament the sixth Schedule under Section 7 provides that all existing laws shall continue to be in place and shall be construed as such with necessary modifications and alterations to be in conformity with the Constitution. Hitherto, the Kenyan Citizenship Act is still applicable with necessary modifications, implying thus, that the Nubians are eligible for acquiring Kenyan citizenship under its auspices.

In Sum, I believe that by looking at both the old and the new constitution it has come to light that Nubians have no identity crisis for they are, and can indeed be Kenyan nationals either by birth or through registration.

Towards their Identification

Keeping to the argument above and the struggles of the Nubians in Kenya to acquire identity, identity which through the discussion I believe I have been able to assert satisfactorily that they are a national ethnic minority under the laws, its disconcerting to state that the government of Kenya despite being signatory to the regional and international treaties and providing those rights in the Constitution has failed to address the Nubian issues proficiently. In the case of Association of Victims of Post Electoral Violence & Interights v. Cameroon , the African commission provided that:

“Article 1 of the African Charter imposes on the States Parties the obligation of using the necessary diligence to implement the provisions prescribed by the Charter since the said diligence has to be followed by practical action on the ground in order to produce concrete results[30]

Conclusion & Recommendations

It is clear enough that the Nubians have suffered injustice from the colonial times to date and despite all that they are endeavoring to fight for their recognition and preserving their identity. Much has been written on their plight and perhaps this paper will not be the last to lament more on their quandaries However, the objective of this paper was to assert that they are Kenyan nationals and even if otherwise they are eligible to be under the laws of Kenya, all that is needed is for them to be given unbiased opportunities to pursue them. The former and current constitution position on their identity would not change and all depends on the political will and democratic position of Kenya.

There is a way out for the government to rid itself of the stinking position it has put itself in by using the current constitution and recognize the Nubians as nationals.

[1] Ms. Isaboke Moraa Wilmah is currently a Post Graduate Student at Central European University Budapest Hungary, undertaking LLM in Human Rights at the Legal department. She is an enrolled Advocate of the High Court in Uganda and has worked at Refugee Law Project Faculty of Law Makerere University – Kampala, Uganda, providing Legal Aid Services to Forced Migrants.

References

[1]See: UNHCR Global Report 2008, at p. 65. Available at: http://www.unhcr.org/4a2d286d2.html; Exhibit 76: Kenya National Commission on Human Rights, An Identity Crisis: A Study on the Issuance of National Identity Cards, at p. 10 (2007). Available at: www.knchr.org/dmdocuments/Final IDsReport.pdf (“Kenya National Commission on Human Rights – An Identity Crisis – 2007”) (indicating that “[t]today over 100,000 Nubians live in Kenya and are scattered in several places in the country with the largest numbers found in Kibera (Nairobi).”); U.S. Department of State, 2008 Human Rights Report: Kenya. Available at.: http://www.state.gov/g/drl/rls/hrrpt/2008/af/119007.htm

[2] Makoloo. M, “Kenya: Minorities, Indigenous peoples and ethnic diversity,” report by Minority Rights Group International , 2005 pg 17

[3] The Nubians Community in Kenya .V. The State of Kenya communication 317/06 before the African Human Rights commission.

[4] Adam.H, “Kenyan Nubians: Standing up to Statelessness”, Forced Migration review Issue 32, April 2009.pg. 19 http://www.fmreview.org/FMRpdfs/FMR32/FMR32.pdf

[5] Adam.H, “Kenyan Nubians: Standing up to Statelessness”, Forced Migration review Issue 39, April 2009. http://www.fmreview.org/FMRpdfs/FMR32/FMR32.pdf ( 29/11/2010)

[6] Ojwang. J.B, “Constitutional and development in Kenya: Institutional and Adaptational change”, acts press, African center for technology studies. 1990

[7] Southwick & Lynch, “Kenya: National Registration Processes leave Minorities on the edge of Statelessness”, Refugees International Bulletin. May 23rd 2008. http:/www. refugeesinternational.org/sites/default/files/Kenya.pdf

[8] Southwick & Lynch, “Kenya: National Registration Processes leave Minorities on the edge of Statelessness”, Refugees International Bulletin .May 23rd 2008.http:/www.refugeesinternational.org/sites/default/files/Kenya.pdf. See also Cap 107 Laws of Kenya. Refer to Section 2, 6 and 10.

[9] Southwick & Lynch, “Kenya: National Registration Processes leave Minorities on the edge of Statelessness”, Refugees International Bulletin. May 23rd 2008. http:/www. refugeesinternational.org/sites/default/files/Kenya.pdf

[10] Aljazeera, “Kenyan Nubians fight for Rights”, reported August 12, 2007. http://english.aljazeera.net/news/africa/2007/08/200852517380140544.html( 29/11/2010

[11] Adam.H, “Kenyan Nubians: Standing up to Statelessness”, Forced Migration review Issue 32, April 2009.pg. 19 http://www.fmreview.org/FMRpdfs/FMR32/FMR32.pdf

[12]Yunis Ali & 100,000 others. V. Principal Registrar of Persons, Principal Immigration Officer & the attorney General HCCC Misc. Case No. 467 of 2003.

[13]. The Nubians Community in Kenya .V. The State of Kenya communication 317/06 before the African Human Rights commission. (29/11/2010)

[14] Kohn .S. et’ al, “Statelessness: What it is and Why it Matters”, in Herson. M. et’al, “Forced Migration review”, issue 32, Refugees Studies Center, Oxford 2009.

[15] Kohn .S. et’ al, “Statelessness: What it is and Why it Matters”, in Herson. M. et’al, “Forced Migration review”, issue 32, Refugees Studies Center, Oxford 2009.

[16] Universal declaration of Human rights 1948.

[17] Kohn .S. et’ al, “Statelessness: What it is and Why it Matters”, in Herson. M. et’al, “Forced Migration review”, issue 32, Refugees Studies Center, Oxford 2009.

[18] The Constitution Act of Kenya 2010

[19] The Registration of persons Act of Kenya cap 107.

[20] The Kenyan citizenship Act Cap 170.

[21] The Constitution Act of Kenya 2004(repealed).

[22] The Constitution Act of Kenya 2004(repealed).

[23] The Former Constitution Act of Kenya Section 92: “(1) A person who, being a Commonwealth citizen or a citizen of a country in Africa to which this subsection applies, has been ordinarily resident in Kenya for such period (whether commencing before, on or after 12th December, 1963) and under such authority as may be prescribed by or under an Act of Parliament shall be eligible, upon making application in such manner as may be so prescribed, to be registered as a citizen of Kenya, and the Minister may cause any such person who so applies to be so registered. (2) A person shall be eligible, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya if, at the date of his application, one of his parents is a citizen of Kenya, and the Minister may cause any such person who so applies to be so registered: Provided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not himself make an application under this subsection, but an application may be made on his behalf by his parent or guardian. (3) The countries in Africa to which subsection (1) of this section applies (other than the countries to which section 95 applies) are countries which are for the time being declared by the Minister, by notice published in the Kenya Gazette, to be countries which permit citizens of Kenya to become citizens of those countries by registration.”

[24] The Kenya Constitution Act of 2010. Section must be person of full age, of African descent either born, and one of his parents was born, in a country to which this section applies, he/she has been resident for a period of not less than ten years in a country to which this section applies and he is not a citizen of an independent state on the Continent of Africa; that he is ordinarily resident in Kenya and has been so resident for a period of five years; that he/she has an adequate knowledge of the Swahili the English language or such language as the Minister may prescribe; that he/she is of good character and he/she would be a suitable citizen of Kenya.”

[25] The Sixth Schedule, Transitional and Consequential Provisions, article 262, Section 30 which states that; “A Kenyan citizen is a citizen by birth if that citizen—(1) acquired citizenship under Article 87 or 88 (1) of the former Constitution; or(2) would have acquired citizenship if Article 87 (2) read as follows: “Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father or mother becomes, or would but for his or her death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.”

[26] The Sixth Schedule, Transitional and Consequential Provisions, article 262, Section 30 which states that; “A Kenyan citizen is a citizen by birth if that citizen—(1) acquired citizenship under Article 87 or 88 (1) of the former Constitution; or(2) would have acquired citizenship if Article 87 (2) read as follows: “Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father or mother becomes, or would but for his or her death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.”

[27] Section 12. (1) Every citizen is entitled to––(a) the rights, privileges and benefits of citizenship, subject to the limits provided or permitted by this Constitution; and (b) a Kenyan passport and any document of registration or identification issued by the State to citizens. (2) A passport or other document referred to in clause (1) (b) may be denied, suspended or confiscated only in accordance with an Act of Parliament that satisfies the criteria mentioned in Article 24.

[28] The Kenya Constitution Act of 2010. Section 14 : “(1) A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.(2) Clause (1) applies equally to a person born before the effective date, whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen.”

[29] The Constitution Act of Kenya 2010, Section 15 : “(1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen.(2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen.(3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen.”

[30] Association of Victims of Post Electoral Violence & INTERIGHTS v. Cameroon, African Comm. Decision 11-25 November 2009, Communication No. 272/2003, at para. 110 http://www.achpr.org/english/activity_reports/27_acitivity.pdf