The African Committee held that States the Party’s practice of making children wait until they turned 18 years of age to apply to acquire a nationality could not be seen as an effort on the part of the State Party to comply with its children’s rights obligations. Therefore, the seemingly routine practice (which was applied more of as rule than in highly exceptional instances) of the State Party that left children of Nubian descent without acquiring a nationality for a very long period of 18 years was neither in line with the spirit and purpose of art 6, nor promoted children’s best interests, and therefore constituted a violation of the African Children’s Charter.
The African Committee further held that while complex issues of parentage, race, ethnicity, place of birth, and politics all played a role in determining an individual's nationality, the root causes of statelessness were complex and multifaceted including state succession, decolonization, conflicting laws between States, domestic changes to nationality laws, and discrimination. Whatever the root cause(s), stateless children often inherited an uncertain future. For instance, they might fail to benefit from protections and constitutional rights granted by the State. Those include difficulty to travel freely, difficulty in accessing justice procedures when necessary, as well as the challenge of finding oneself in a legal limbo vulnerable to expulsion from their home country. Statelessness was particularly devastating to children in the realisation of their socioeconomic rights such as access to health care, and access to education. In sum, being stateless as a child was generally antithesis to the best interests of children.
Children; Nubian; discrimination on the basis of ethnicity; birth certificates; African Committee of Experts on the Rights and Welfare of the Child; ACERWC; ACERWC Communication requirements; nationality; statelessness; stateless de jure; socioeconomic rights
The complainants, Nubians in Kenya descended from the Nubia mountains found in what was current day central Sudan, argued that the citizenship status of the Nubians was not directly addressed, and they were consistently treated by the government of Kenya as “aliens” since according to the Government, they did not have any ancestral homeland within Kenya, and as a result could not be granted Kenyan nationality.
The complainants alleged violation of the right to have a birth registration, to acquire a nationality at birth, prohibition on unlawful/unfair discrimination and as a result of those two alleged violations, a list of consequential violations including (art 11(3)) equal access to education and (art 14) equal access to health care. In addition, the complainants alleged that the treatment of children of Nubian descent violated their right to be registered at the time of their birth, because some parents had difficulty having their children registered, especially since many public hospital officials refused to issue birth certificates to children of Nubian descent. The complainants further alleged that a vetting process that was applicable to children of Nubian decent was extremely arduous, unreasonable, and de facto discriminatory.
The Committee made a recommendation for the Government of Kenya to:
- take all necessary legislative, administrative, and other measures in order to ensure that children of Nubian decent in Kenya, that were otherwise stateless, could acquire a Kenyan nationality and the proof of such a nationality at birth;
- take measures to ensure that existing children of Nubian descent whose Kenyan nationality was not recognised were systematically afforded the benefit of those new measures as a matter of priority;
- implement its birth registration system in a non-discriminatory manner, and take all necessary legislative, administrative, and other measures to ensure that children of Nubian descent were registered immediately after birth;
- adopt a short term, medium term and long term plan, including legislative, administrative, and other measures to ensure the fulfilment of the right to the highest attainable standard of health and of the right to education, preferably in consultation with the affected beneficiary communities; and
- to report on the implementation of those recommendations within six months from the date of notification of the instant decision. In accordance with its Rules of Procedure, the Committee would appoint one of its members to follow up on the implementation of the instant decision.
The legal rules applied in determination of the case were the best interests of a child principle and the indivisibility of rights in human rights law.