22 MARCH 2011
Communication: No. Com/002/2009
AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD
INSTITUTE FOR HUMAN RIGHTS AND DEVELOPMENT IN AFRICA (IHRDA) AND OPEN
SOCIETY JUSTICE INITIATIVE ON BEHALF OF CHILDREN OF NUBIAN
DESCENTIN KENYA
v.
THE GOVERNMENT OF KENYA
DECISION: No 002/Com/002/2009
Summary of Alleged Facts
1.
On 20 April 2009, the Secretariat of the African Committee of Experts on the Rights
and Welfare of the Child (African Committee) received a Communication brought by the
Institute for Human Rights and Development in Africa based in the Gambia (and
organization with an observer status before the African Committee) and the Open Society
Initiative based in New York (the Complainants) on behalf of children of Nubian descent in
Kenya.
2.
The Complainants allege that the Nubians in Kenya descended from the Nuba
mountains found in what is current day central Sudan and were forcibly conscripted into
the colonial British army in the early 1900s when Sudan was under British rule. Upon
demobilisation, allegedly, although they requested to be returned to Sudan, the colonial
government at the time refused and forced them to remain in Kenya.
3.
The Complainants allege that the British colonial authorities allocated land for the
Nubians, including in the settlement known as Kibera, but did not grant them British
citizenship. At Kenyan independence (1963), the Complainants argue, the citizenship1
status of the Nubians was not directly addressed, and for a long period of time they were
consistently treated by the government of Kenya as “aliens” since they, according to the
Government, did not have any ancestral homeland within Kenya, and as a result could not
be granted Kenyan nationality. The Complainants allege that the refusal by the Kenyan
Government to recognise the Nubians’ claim to land is closely linked with the Government’s
denial of Nubians to Kenyan citizenship.
4.
A major difficulty in making the right to nationality effective for Nubian children is
the fact that many Nubian descents in Kenya who are parents have difficulty in registering
the birth of their children. For instance, the fact that many of these parents lack valid
identity documents further complicates their efforts to register their children’s births. It is
further alleged birth registration certificate in Kenya explicitly indicates that it is not proof
of citizenship, thereby leaving registered children in an ambiguous situation contrary to
Article 6 of the African Children’s Charter.
1
Although technically speaking “nationality” and “citizenship” do not mean the same thing, the African
Committee uses the two notions interchangeably in this decision as they are used in such a manner in the
Communication itself.
2