IHDRA and Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) v Kenya

Parties (including notable third parties)

Complainants: Institute for Human Rights and Development in Africa (on behalf of Children of Nubian Descent in Kenya) and Open Society Justice Initiative; Respondent: The Government of Kenya

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Summary of Facts

The Communication to the African Committee of Experts on the Rights and Welfare of the Child (‘Committee’) concerned children of Nubian descent in Kenya, whose ancestors were brought from the Nuba Mountains (now in Sudan) by British colonial authorities in the early 1900s. After being forcibly conscripted into British armed forces and fighting in both world wars, they were demobilised from the British army. Although they requested to return to Sudan, the Nubians were forced to remain in Kenya but were not granted British citizenship.

At Kenyan independence in 1963, their citizenship status was not addressed, and they were treated as ‘aliens’ by the Kenyan government, lacking recognition as nationals due to the absence of an ancestral homeland in Kenya.

A major difficulty for Nubian children was the inability of their parents, many of whom lacked valid identity documents, to register their births.  Even when birth certificates were issued, they explicitly stated that they are not proof of citizenship, leaving children in an ambiguous legal position without Kenyan nationality.  The process for Nubian children to acquire nationality upon turning 18 years of age was arduous, involving a discriminatory vetting process, and many were left stateless or faced long delays in obtaining national identity cards, which were essential for proving nationality.

The lack of recognised nationality and birth registration limited the children’s access to education and health care.

The Communication was commenced by the Institute for Human Rights and Development in Africa and the Open Society Justice Initiative after an earlier action commenced in the High Court of Kenya had failed to progress after more than six years, raising the issue of whether all local remedies had been exhausted

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Legal Arguments

Legal Arguments by the Complainants

The Complainants’ arguments canvassed both:

• the admissibility of the Communication, particularly whether all local remedies had been exhausted; and
• the merits of the Communication, being the submissions and evidence in support of the alleged contraventions of the African Charter on the Rights and Welfare of the Child.

The Respondent State (Kenya) did not respond to multiple requests for submissions.

Admissibility – exhaustion of local remedies

The Complainants made detailed submissions regarding the admissibility of the Communication, particularly in respect of the ‘exhaustion of local remedies’ rule.

The Complainants submitted that they had undertaken a number of efforts to exhaust local remedies for a period of seven years, having commenced an action in the High Court of Kenya in 2003 against the Kenyan Government.

The Complainants indicated that numerous procedural obstacles had been raised by the High Court, such that no bench had been constituted, and no date was fixed for a substantive hearing on the case, despite the action being commenced more than six years earlier.

The Complainants invoked jurisprudence from the African Commission and highlighted the provisions of the African Charter on the Rights and Welfare of the Child (‘African Children’s Charter’) and its Guidelines on the Consideration of Communications, to submit that such a delay was excessive, and should be seen as an exception to the exhaustion of local remedies rule.

The Complainants also argued that the pursuit of local remedies offered no prospect of success and children of Nubian descent living in Kenya could not be reasonably expected to benefit from those local remedies. As a result, the Complainants argued that the Communication should be declared admissible because it complied with the requirements of the Guidelines for the Consideration of Communications.

Merits of the Communication

In support of the merits of the Communication, the Complainants argued that the Kenyan Government’s practices violated several provisions of the African Children’s Charter, specifically:

• Article 6 (specifically sub-articles (2), (3) and (4)): the right to have a birth registration and to acquire a nationality at birth;
• Article 3: prohibition on unlawful/unfair discrimination; and
• as a result of the above two alleged ‘consequential violations’, including:
• Article 11(3): the right to equal access to education; and
• Article 14: the right to equal access to health care

They argued that the vetting process for Nubian children was discriminatory, requiring them to prove the nationality of their grandparents and obtain approval from Nubian elders and government officials, which was not required of other non-Nubian children in Kenya.

The Complainants also argued that because of the lack of recognised nationality and birth registration, Nubian children faced discrimination, including:

• limited or no access to education and health care;
• inability to obtain national identity cards, which were essential for accessing services and opportunities; and
• systemic underdevelopment and marginalisation of the Nubian community.

The Respondent State did not respond to the Committee’s requests to provide its written argument on the merits of the Communication.

Outcome

On Admissibility

The Committee reviewed the Communication and found it met all formal requirements: it was not anonymous, was written, concerned a State Party, was respectful, and was based on direct witness evidence, not solely media reports.

The main issue was whether local remedies had been exhausted. The Committee emphasised that only remedies that are available, effective, and sufficient must be exhausted, and noted that the Complainants had genuinely attempted to pursue domestic remedies but faced unreasonable and prolonged delays in the Kenyan courts.

The Committee highlighted that the best interests of the child required urgency and that leaving children in an uncertain legal situation for years was unacceptable. It concluded that the six-year delay in the Kenyan courts was excessive and justified an exception to the exhaustion of local remedies rule.

The Committee determined that the Communication was brought within a reasonable period after waiting to see if local remedies would work and therefore declared the case admissible for consideration on its merits.

On the Merits

The Committee found that Kenya’s actions violated Articles 3, 6(2), 6(3) and 6(4), 11(3), 14(2)(b), 14(2)(c) and 14(2)(g) of the African Children’s Charter. Specifically:

• The difficulty many parents faced in registering their child’s birth and obtaining a birth certificate violated Article 6(2), which entitles every child to immediate registration after birth.
• A purposive reading of Article 6(3) (the right of a child to acquire a nationality) suggests that, as much as possible, children should have a nationality beginning from birth. The Committee considered that its purposive reading was consistent with the best interest of the child set out in Article 4 of the African Children’s Charter.
• The Committee further found that the practice of making children wait until they were 18 years old to apply to acquire a nationality (and that such nationality was not guaranteed) was not in line with the spirit and purpose of Article 6, and did not promote the children’s best interests.
• The Committee also considered that the measures imposed did not fulfil the purpose of Article 6(4), which requires State Parties to take measures to prevent and reduce statelessness. While the Committee respected States Parties’ sovereignty in setting the rules for the acquisition of nationality, the Committee considered that the best interests of the child required States Parties to take steps to ensure that if a child is born on the territory of a State Party and is not granted nationality by another State, the State in whose territory the child is born should allow the child to acquire its nationality.  That is, States have an ‘obligation of result’ and they need to ensure that all necessary measures are taken to prevent children being stateless.

As for the ‘consequential violations’, the Committee found that:

• the measures imposed on children of Nubian descent applying for Kenyan nationality was discriminatory and deprived them of any legitimate expectation of nationality, effectively leaving them stateless, in violation of Article 3. The Committee found that the treatment of children of Nubian descent was not ‘strictly proportional with’ and not ‘absolutely necessary’ for any legitimate state interest that the measures could be said to protect.
• The affected children had less access to health services and educational facilities than comparable children without Nubian descent, violating Articles 11(3) and 14 of the African Children’s Charter.

Recommendations Made

The Committee made five recommendations in light of its findings, recommending that Kenya:

• implement all necessary legal, administrative and other measures to ensure children of Nubian descent in Kenya can acquire a Kenyan nationality;
• ensure that existing children of Nubian descent are systematically afforded the benefit of the above measures;
• implement its birth registration system in a non-discriminatory manner and ensure all children of Nubian descent are registered immediately after birth;
• adopt a short, medium and long term plan to ensure the fulfilment of the highest attainable standard of health and the right to education; and
• report on the implementation of the above recommendations within six months of the Committee’s decision.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)	Articles 6, 7(1) & 24
International	International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)	Article 24(3)
International	Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960)
International	Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975)
International	Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, UN Doc A/810 (10 December 1948)	Principle 3
International	International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 66- UNTS 195 (entered into force 4 January 1969)
International	Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)
International	International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003)
International	Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
Regional	African Charter on the Rights and Welfare of the Child (Organisation of African Unity (historical) OAU Doc CAB/LEG/24.9/49 (1990)	Articles 2, 3, 4, 6, 6(1), 6(2), 6(3), 6(4), 11(2)(h), 11(3), 11(3)(a), 14(2)(b), 14(2)(c), 14(2)(g), 14(2)(h), 20(2), 31, 44 & 46
Regional	African Committee of Experts on the Rights and Welfare of the Child, Guidelines on Consideration of Communications of the African Committee of Experts on the Rights and Welfare of the Child	Chapter II, Art 1
Regional	African Charter on Human and People’s Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986)	Articles 16 & 56(7)
Domestic	Constitution of Kenya, 1969	Chapter IV
Domestic	Constitution of Kenya, 2010	12(1)(b), 14(4)
Domestic	Kenya Citizenship Act, 2010, Cap 170

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Ebenezer Durojaye and Edmund Amarkwei Foley, ‘Making a first impression: An assessment of the decision of the Committee of Experts of the African Children’s Charter in the Nubian Children Communication’ (2012) 12(2) African Human Rights Law Journal 564

• This article examines the decision and discusses key aspects of the Committee’s approach to the issue of admissibility and substantive argument.
• It notes that the Committee adopted a ‘progressive, albeit purposive’ approach to article 56(5) of the African Charter, which requires complainants to have exhausted local remedies before referring cases to the Committee (page 570). The Committee considered that the best interests of the child principle (enshrined in article 4 of the African Children’s Charter) served as an exception to article 56(5), largely due to the fact that the Nubian community had filed a case before the High Court in Kenya which had been pending for six years with no substantive progress having been made.
• The article cautions against relaxing the exhaustion of local remedies rule too much so as to defeat its purpose and recommends the Committee’s approach be based on the ‘peculiarity of a case’ rather than becoming a general rule. Reinforces the importance of first exhausting local remedies to ensure regional bodies and courts do not become courts of first instance and to respect the primacy of the State.
• The article also asserts that the decision failed to adopt a gender-sensitive approach in its judgment, noting that the consequences of statelessness for Nubian girls is far greater than for boys, given the limitations on access to healthcare and education.

Bright Theu, 'Human Rights Litigation Using International Human Rights Law: The IHRDA Experience' (2013) 17 Law, Democracy and Development 504

• The author discusses IHDRA’s use of strategic litigation to seek the application of international human rights standards in domestic courts and taking cases to supra-national mechanisms where domestic efforts do not succeed.
• IHRDA and the Open Society Justice Initiative launched the Communication seeking to end the statelessness and the consequent discrimination and marginalisation of Nubian-Kenyan children.
• The article notes that the recommendations made by the Committee were ‘broadly, restatements of the obligations which the respondent state is already aware or should be deemed so’ and that, as at the time of writing in 2013, the respondent state had not provided the recommended report. (page 509)
• The author states that the case was ground-breaking as the first decision laying down the jurisprudence of the Committee and helped to expose the systematic marginalisation of Nubian-Kenyan children.

Andrew Songa, ‘Addressing statelessness in Kenya through a confluence of litigation, transitional justice, and community activism: reflecting on the cases of the Nubian, Makonde and Shona communities’ (2021) 5 African Human Rights Yearbook (AHRY) 253

• This article discusses the use of strategic litigation as a tool to promote and protect the rights and freedoms of stateless persons.
• It discusses Communication 317/2006: The Nubian Community in Kenya v Kenya, which was a case filed before the African Commission on Human and Peoples’ Eights in 2006 by the Open Society Justice Initiative and the IDHRA on behalf of the Nubian community as complainants.
• It notes that a lack of political will to implement the recommendations of the Commission and the Committee means as at the date of the article, many Nubians were still stateless.

Elvis Fokala, ‘Do not forget the Nubians: Kenya’s compliance with the decisions of African regional treaty bosies on the plight and rights of Nubians’ (2021) 5 De Jure Law Journal 476

• The author highlights that the Kenyan government’s implementation of the Committee’s recommendations has been slow and incomplete, with discriminatory hurdles in accessing identity documents and birth certificates persisting.
• This article identifies ongoing challenges to overcoming the statelessness of the Nubian community, including children, despite some progress having been made (such as the establishment of a National Taskforce) and the granting of citizenship to other stateless communities (Makonde, Shona).
• It notes that the Nubian community still face administrative discrimination and reiterates view that community-led activism and NGO support remain crucial in pushing for the full implementation of the Committee’s and Commission’s recommendations.