Barriers to citizenship for minority communities in Kenya

In my earlier post,I discussed the domestic and international legal provisions on voting and voter registration in Kenya. In this post, I delve deeper and look at the barriers facing minority communities in Kenya in evidencing their Kenyan citizenship. My focus is on the experiences of evidencing citizenship for Kenyan-Somalis and the Nubian Community in Kenya.

Kenya’s Somali Ethnic Group

Kenyans of Somali ethnic group make up approximately 2.3% of Kenya’s population. Most live in North-Eastern Province (NEP), formerly known as the Northern Frontier District (NFD). ¹ The marginalisation of Kenyan-Somalis started under the British Colonial Government which carried out a policy of isolating and excluding the area’s residents from the rest of the country, chronically underinvesting in public services, such as hospitals and schools.

The residents of the NEP decided that they should secede from Kenya to join Somalia and the Shift War started.  A state of emergency was declared. With the help of the former colonial power in the region, Britain, the secessionist movement was suppressed. The 2007 Kenyan National Commission on Human Rights (KNHCR) Report on IDs in Kenya describes the methods used as:

“indiscriminate killing of civilians and their livestock, rape of women and the razing down of numerous manyattas. Other tactics involved the forced collection of people and putting them in collective villages while their leaders were put in detention camps. […] The Indemnity Act was put in place to shield security officers “from prosecution for whatever actions they chose to commit.”

The policy of separation and isolation continued after Kenya’s independence including through underinvestment in areas considered to have low potential, such as the NEP.  There remains suspicion of Kenyan-Somalis. This is due to two factors. One, the longstanding exclusion and isolation of the NEP’s inhabitants from the rest of the country. And two, the geographical proximity of the region to Somalia, which results in a not-insignificant number of Somali refugees living in the area. Both contribute to the frequent refusal of Kenyan authorities to accept Kenyan-Somalis as citizens of Kenya.

The KNHCR Report highlights the difficulties Kenyan-Somalis face in obtaining evidence of their citizenship and the all-important ID card:

“This is mainly attributed to the question of Somali refugees i.e., “since it is almost impossible to differentiate between the two groups of people.  Further, applicants of Somali origin in Nairobi (especially Eastleigh which has a high concentration of Somalis) must present themselves to a vetting committee, a requirement that other ethnic groups living in the area are not subjected to.”

The Vetting Committee is made up elders from the community with local knowledge. For example, one District Registrar justified the vetting of applicants because of: “the difficulties of distinguishing a Kenyan-Somali from a Somali from Somalia”. The vetting committees often require extensive documentation which can be difficult or impossible to obtain, such as an applicant’s grandfather’s birth certification.

As Lochery says in her article on the Kenyan state and its Somali citizens:

“People are still asked about their clan and the districts of origin supposedly attached to those clans; people born or living outside these ‘districts of origin’ face difficulties” ²

The Nubian Community in Kenya

The other of the two minority communities in Kenya to find it difficult to obtain an ID Card is the Nubian Community. Members of the community originate from descendants of Sudanese Nubians brought over a 100 years ago by British Colonial forces. As many as 13% of Nubian adults in Kenya are currently stateless.  Among minors, 37% have no documentation at all, and only 2% hold firm proof of Kenyan nationality in the form of a passport (national ID cards can only be obtained at majority).  Like Kenyan-Somalis, they must go through a long and humiliating process to obtain recognition as citizens and be registered for an ID card.

Recently, however, the Nubian Community, numbering some 100,000, has made some headway in challenging the policies of the Kenyan Government. In the case The Nubian Community in Kenya v. Kenya brought before the African Commission, the African Commission found that Kenya had in fact violated the African Charter on Human and People’s Rights, and especially Articles 2, 3 and 5 of the Charter. ³ In relation to the Articles 2 and 3 violation, the Commission found unfair and discriminatory treatment which left members of the community vulnerable to further marginalisation. The vetting process required was irrational and unjustifiable. The Commission also acknowledged that the only other group subject to such differential treatment in obtaining an ID card was the Kenyan-Somalia group ⁴:

“Kenyan Nubians are treated differently from other Kenyans in the acquisition of ID cards. They have outlined significant additional burdens that are imposed on them when they seek to acquire ID cards. In addition to being required to provide supporting documents, such as their grand-parents ID documents, which is not required of other indigenous Kenyan ethnic groups; Nubians must be vetted and approved by a Committee; they must swear an affidavit in support of their claim to an ID card before a Magistrate’s Court and they are required to pay a fee to the Court.”

In relation to the Article 5 violation, the Commission does not specifically align the treatment of the Nubians in Kenya with the Kenyan-Somalis. However, based on their experiences, it is arguable that the discriminatory treatment of members of the Kenyan-Somali community is also a breach of Article 3 since the Commission found that:

“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.”

Lack of equal treatment for minority communities in Kenya 

The two minority communities in Kenya face additional burdens in obtaining legal status documents, such as an ID card, which are not imposed on other ethnic groups living in Kenya.  The barriers placed before these communities in obtaining identity documents and the subsequent difficulties they face in claiming benefits and rights which can only be evidenced by the production of an ID card amounts to discriminatory and unequal treatment on the basis of ethnicity.

The Kenyan government has a piecemeal approach to ID cards and registration when it comes to the minority communities in Kenya. It is clear that although the law provides for the registration of and the recognition of Kenyan citizenship, evidencing that citizenship and benefitting from the rights and freedoms attendant on that citizenship is not that simple.

The recent finding of the African Commission that the treatment faced by Kenya’s Nubian Community amounts to breaches of the African Human Rights Charter is some progress in the right direction. It is arguable that their treatment suffered by Kenyan-Somalis is also discriminatory and should be viewed through the prism of the African Commission’s ruling. Whether the findings of the Commission actually have an impact on the ground when it comes to either the Nubian Community or Kenyan-Somalis registering for an ID card is another matter.