Nubian Community of Kenya v Republic of Kenya

Parties (including notable third parties)

Nubian Community of Kenya (represented by Open Society Justice Initiative and Institute for Human Rights and Development in Africa) (Complainants); Republic of Kenya (Respondent); Allard K. Lowenstein International Human Rights Clinic, Yale School of Law (Third Party Intervention)

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Summary of Facts

The Nubian community in Kenya are descendants of Sudanese soldiers conscripted by the British colonial administration and have lived in Kenya for over a century.  Despite their long-standing presence, they were not granted citizenship at independence in 1963 and have since faced systemic discrimination, particularly in obtaining Kenyan nationality and identity documents.  The community has been treated as ‘aliens,’ denied passports and national ID cards, and excluded from political and social development.  Many Nubians live in the slums of Kibera, Nairobi, often in poverty and without legal protection, education, or access to basic services.  The complaint alleges that the Nubians are de facto stateless and have been denied property rights and subjected to forced evictions.

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Legal Arguments

Legal Arguments by the Complainants

On admissibility and the requirement to exhaust domestic. Remedies, the Complainants asserted they pursued domestic remedies without success, rendering local remedies unduly prolonged and ineffective.

The Complainants alleged that the Respondent’s conduct amounted to a violation of Article 2 of the Charter (non-discrimination. and Article 3 of the Charter (right to equality and equal protection before the law).

The Complainants alleged that they could not get identity documents because of their ethnicity and religion. There was a lengthy, humiliating, and expensive and discriminatory vetting process. They we required to provide additional documents in support of their claim to Kenyan nationality, such as grandparents’ ID, which other Kenyans don’t need; were  questioned by the ‘vetting committee’ – unlike other Kenyans; and were required to visit the magistrates’ court to swear an affidavit in support of their claim (including paying a fee), unlike other Kenyans

The Complainants alleged this process results in severe delays, denial of ID cards and a tenuous legal status, contributing to their de facto statelessness.

The Complainants further argued the Respondent violated Article 5 of the Charter (the right ro inherent dignity andrecognition of legal status). They argued that the restrictions imposed on Kenyan Nubians — including a burdensome and discriminatory vetting process, excessive delays, and numerous procedural obstacles in securing national identity cards — constituted an arbitrary deprivation of the right to effective nationality.  They contended that these practices prevent the recognition of Nubians’ legal status as Kenyan citizens, leaving many members of the community effectively stateless.  As a result, Nubians were denied the dignity and legal protection to which they are entitled. The Complainants relied on the Nottebohm case to argue that the arbitrary deprivation of effective nationality they experienced failed to recognize their genuine and effective link to Kenya.

The Complainants also asserted that the Nubian community’s right to property under Article 14 of the Charter had been systematically violated by the Kenyan government’s refusal to recognise their collective property rights over Kibera, the area where they have lived for over a century. They argued that, despite their long-standing occupation and deep cultural ties to Kibera, the Government had treated the land as state property, denied Nubians security of tenure, and subjected them to routine forced evictions without adequate notice, compensation, or provision of alternative housing. The Complainants maintained that these actions are not justified by any legitimate public interest and left the Nubian community in a state of perpetual insecurity, threatening their cultural survival and violating Article 14 of the Charter.

Legal Arguments by the Respondent

On admissibility,the Respondent contended local remedies were not exhausted, with a High Court case remains pending, an also pointing out that the Plaintiffs did not pursue judicial review to compel issuance of national ID cards and passports.

In respect of the claim of discriminatory treatment, the Respondents argued that the Kenyan Constitution only provides for citizenship to individuals, not to communities, tribes, clans or groups. Any claim to citizenship must therefore be examined on a case by case basis. Further, they argued that Section 84 of the Constitution did notprohibit discrimination between citizens and non-citizens. They also pointed out the other non-indigenous Kenyan communities that were subjected to the same vetting process as those of the Nubian community.

Although the Respondent did not make detailed or specific submissions addressing the complainants’ arguments regarding the alleged violations of Article 5, they denied that Nubians are arbitrarily deprived of nationality or legal status.

The Government asserted that the Kenyan Constitution provides for the protection of dignity and prohibits discrimination and maintained that Nubians who have successfully applied for and obtained citizenship enjoy the same rights as other Kenyan citizens.  The Respondent further noted that legal and administrative safeguards exist to protect the dignity of all individuals in Kenya.

On the claim with respect to property, the Respondent contended that the right to property is protected under the Kenyan Constitution, which prohibits deprivation of property except in accordance with the law and with compensation where property is compulsorily acquired for public purposes.  The Government maintains that some Nubians possess land titles and enjoy security of tenure, and that the law applies equally to all individuals in Kenya.  However, the Respondent did not specifically address the complainants’ allegations regarding the lack of recognition of collective property rights in Kibera, the absence of compensation, or the manner in which evictions have been carried out.

Outcome

On Admissibility

The African Commission found that, although local remedies were theoretically available in Kenya, they were not effective in practice for the Nubian community. Therefore, the claim was admissible.

On the Rights to Equality and Non-Discrimination

The African Commission found that the Kenyan Government’s treatment of the Nubian community in the acquisition of identity documents constituted a violation of the rights to equality and non-discrimination under Articles 2 and 3 of the African Charter.

The Commission noted that Nubians were subjected to a lengthy, burdensome, and costly vetting process to obtain national identity cards, which serve as proof of citizenship and are essential for accessing a wide range of rights and services.  Unlike other Kenyans, Nubians were required to provide additional documentation, such as their grandparents’ identification papers, appear before a vetting committee, swear affidavits in court, and pay associated fees.  These requirements were not imposed on most other ethnic groups in Kenya.  The Commission observed:

‘Without IDs, [Nubians] are unable to enjoy a broad range of rights guaranteed in the Charter… the lack of IDs cards also effectively renders many Nubians stateless and liable at any point in time to expulsion or arrest.  This certainly is an affront to their dignity as human beings deserving of equality with other Kenyans and equal protection of the laws governing Kenyan citizenship.’ (paragraph 132)

The Commission found that the only reason for this differential treatment was the Nubians’ ethnic and religious identity.  The Government’s justification—that a blanket qualification for citizenship would precipitate an influx of Nubians and other groups from neighboring countries—was not accepted as a legitimate or proportionate reason for imposing such burdens.

The Commission held that this differential treatment amounted to unfair discrimination and a denial of equality before the law and equal protection of the law, in violation of Articles 2 and 3 of the Charter.  The Commission also referenced the findings of the Kenya National Commission on Human Rights, which confirmed that the registration system applied stricter rules to Nubians, Kenyan Somalis, and Kenyan Arabs, and that this approach ‘offends the tenets of equal treatment and has no place in a pluralistic and democratic society.’ (paragraph 134)

The Commission found that the Kenyan Government’s practices in the issuance of identity documents to Nubians were discriminatory, unjustified, and violated the community’s rights to equality and non-discrimination under the African Charter.

On the Right to Dignity and Recognition of Legal Status

The African Commission found that the Kenyan government’s actions and administrative practices violated the Nubian community’s right to dignity and recognition of legal status under Article 5 of the African Charter.

On the Arbitrary Deprivation of Nationality and Legal Status

The Commission accepted the complainants’ argument that the burdensome and discriminatory vetting process, excessive delays, and procedural obstacles in securing national identity cards amounted to an arbitrary deprivation of the right to effective nationality.  These practices prevented many Nubians from being recognized as Kenyan citizens, leaving them effectively stateless and without the legal protection and dignity to which they are entitled.  The Commission stated:

‘Nationality is intricately linked to an individual’s juridical personality… denial of access to identity documents which entitles an individual to enjoy rights associated with citizenship violates an individual’s right to the recognition of his juridical personality.’ (paragraph 140)

On the Impact on Dignity and Human Rights

The Commission emphasised that the right to recognition of legal status is an indispensable requirement for the enjoyment of all other rights enshrined in the Charter.  The denial of identity documents not only excluded Nubians from the state’s juridical system but also denied them the dignity inherent in being recognised as a subject of rights.  The Commission cited international and regional human rights instruments, as well as comparative jurisprudence, to reinforce the principle that nationality is a prerequisite for recognition of juridical personality and dignity.

On the State’s Failure to Prevent Statelessness and Discrimination

The Commission found that Kenya had failed to fulfill its obligation to prevent statelessness and to ensure fair, non-discriminatory processes for the acquisition of identity documents.  The Commission noted:

‘By failing to take measures to prevent members of the Nubian Community from becoming stateless and by failing to put in place fair processes, devoid of discrimination and arbitrariness for the acquisition of identity documents, the Commission considers that Kenya has failed to recognize the legal status of Nubians, in violation of Article 5 of the Charter.’ (paragraph 151)

On the Right to Property

The African Commission found that the Kenyan government’s actions violated the Nubian community’s right to property under Article 14 of the African Charter.

Commission accepted the Complainants’ argument that, despite the Nubians’ long-standing occupation and deep cultural ties to Kibera, the Government refused to recognise their collective property rights. The state treated Kibera as government land, denied Nubians security of tenure, and failed to provide legal recognition or registration of their communal property.

The Commission also found that the Nubians were subjected to routine forced evictions from Kibera, often without adequate notice, compensation, or provision of alternative housing. The government did not demonstrate that these evictions were justified by any legitimate public interest or carried out in accordance with appropriate laws. The Commission emphasized:

‘To be constantly faced with the prospects of forced evictions, as is the case with the Nubians of Kibera, is one of the worst forms of injustices that individuals, families and communities can be exposed to.’ (paragraph 163)

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	African Charter on Human and Peoples’ Rights	Articles 1, 2, 3, 5, 12(1) and (2), 13,14,15,17(1), 18, 19, 22, 24
Domestic	Kenyan Constitution	Section 84

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

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 253

• This article summarises the case and observes that there was not much implementation of the Commission’s decision. It notes that, in 2017, Nubians still faced overtly discriminatory hurdles in obtaining birth certificates.

Elvis Fokala, ‘Do Not Forget the Nubians: Kenya’s Compliance with the Decisions of African Regional Treaty Bodies on the Plight and Rights of Nubians’ (2021) De Jure Law Journal 476.

• Fokala discusses the case and the social and political context around it. The author shares Songa’s concern about Kenya’s lack of compliance with the decision.