On being stateless

The number of stateless persons in Kenya is sometimes estimated at about 100,000 people. This is undoubtedly a gross underestimate. Whole communities are declared stateless—one authority estimated that the Nubians alone amount to over 100,000. The “stateless communities” include the Nubians, the Galjeel Somali, Pemba, Waata, the Makonde and Wapemba. Their origins lie in our neighbouring countries, brought over here largely to serve the cause of imperialists and their farmers. They have been treated here atrociously. Our president and his deputy acclaim their partnerships with other African states and marshals them when it suits them—but their government shows callous disregard of them, denying them their basic rights.

Unlike the CKRC draft, the current constitution does not acknowledge, much less address, the rights of the stateless people. Nor has Kenya ratified the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on Reduction of Statelessness. However the African Committee of Experts on the Rights and Welfare of the Child has adopted the international norm that statelessness is to be avoided in the interests of the Child. Moreover, the UN High Commission for Refugees has on occasions pressed the government to register its stateless people.

However, the Kenya Citizenship and Immigration Act of 2011 would have enabled most stateless persons to apply to become Kenya citizens. But they had to apply within five years of the law coming into force, with a discretion in the cabinet secretary to extend the period by another three years. This effectively means that unless the extension has been made, no one can now apply for citizenship. In any case there was no right to citizenship, only eligibility, the matter resting in the discretion of the cabinet secretary. There is little evidence that the government did anything to inform the “stateless” communities of these provisions. It is likely that relatively few applied.

A futile promise?

But last week about 300 hundred Makonde had walked from the Coast to meet the President to claim what they thought was their right to citizenship; whether they were or not would depend whether they had filed their applications in good time. The President apologised to them for the breach of their rights and directed the relevant government departments to issue all eligible Makonde with national identity cards by December. He apologised to them on behalf of other Kenyans “because Kenya has taken too long to consider you as our brothers and sisters”. He assured the community that Thursday would be the last day that anyone would say the Makonde were not part of the Kenyan nation. He should of course have apologised only on his own behalf and his government for they, and not the people, have treated them as stateless, when the law made them eligible for citizenship. It is now doubtful if has the power to ensure that they get citizenship—the usual executive mess.

Let us hope that the government officials will be in a position to grant citizenship to our newly discovered “brothers and sisters”. And that this policy will now extend to our other “brothers and sisters” who have suffered humiliations, suffering of various kinds, and feelings of rejection by the government. The Attorney-General needs to advise the government how the obstacles I have mentioned can lawfully be overcome. After all the President was careful in his promise to refer to only those who were qualified to be citizens.

State of the stateless

Those who live in Kenya but are not its citizens, or citizens of an other state, lead a life of great deprivation and hardship. Statelessness and lack of recognition of nationality have a devastating effect on respect for other rights. Without proof that a person is a national of the country where they live – or of any other country – a person may be unable to work, to access health care and education, to hold secure rights to land and other property, or to enforce any of these claims in court. Perhaps the largest of these communities is Kenyan Nubians; their plight, described below is typical of other communities.

This account of the Nubians is taken from a short essay by one of its members, Adam Hussein Adam. For me and for the many other friends of Adam, the change of government policy (if it is genuine) comes at a very poignant moment. For he died early this month (?). Some time ago he wrote an essay about the hardships his community faces, making clear that other stateless communities do little better. Hussein, unusually for Nubians a law graduate, described not long ago the hardships he and other Nubians (and “other brothers and sisters”) faced daily, and how their lives were rendered meaningless, vulnerable. Adam said that Kenyan Nubians have been defined as stateless people because their identity is questioned. “They are without doubt one of the country’s most invisible and under-represented communities – economically, socially, politically and culturally. This is because they have been silent victims of discrimination, exclusion and violations of human rights and fundamental freedoms for as long as they have been in Kenya—more likely their parents, for most members of these of communities were born in Kenya. He wrote that his story and those of other Nubians were “characterised by the need to survive through challenges that are never explained to you. It is a story characterised by limited interactions with state officials who always remind you it is your privilege to be served by them. It is a story characterised by assuming false identities in order to belong. Before I encountered these challenges in my own life and found out that many of my Nubian colleagues gave up hope of productive careers because of delayed or denied identity cards, I had accused most of them of being lazy. Today I understand that Kenyan Nubians, whether citizens or not, do not belong….

Under the assumption that citizenship is the only vehicle for having a civic and political voice and that therefore stateless people lack any political identity, stateless people become less than fully human and are reduced to mere targets of humanitarian assistance. All energies are thus focused on how to acquire citizenship for stateless people as fast and as easily as possible…… For Kenyan Nubians the lack of a link to the state, lack of integration and lack of social acceptance have been part of our existence. We are neither Sudanese nor accepted as Kenyans.”

A member of another stateless community was quoted in a newspaper recently, “Our people have been frustrated for more than 50 years,” he said. “They are able to work, but who will employ them?…Unfortunately, some have resorted to drowning their problems in alcohol since they cannot save the money they earn’, said a member of another community deemed to be stateless’.

Mockery of the Constitution

The whole approach to the question of statelessness was poorly handled by the Committee of Experts, and then by the Attorney-General. Apart from incompetence about the procedure, there was little recognition of the values of the Constitution—human dignity, social justice, protection of the marginalized, and solicitous about children and minorities and marginalized groups. That no one in government seems to have thought of the implications of the Constitution or the citizenship law is a sad commentary on their callousness or lack of ability to understand the Constitution and the Act.

Yash Pal Ghai

The author is a director of the Katiba Institute.