they do not confer a nationality. They allege that children of Nubian descent are often left to
wait until they turn 18 to apply to acquire a nationality.
42. In this respect, the African Committee is of the view that there is a strong and direct
link between birth registration and nationality. This link is further reinforced by the fact
that both rights are provided for in the same Article under the African Children’s Charter (as
well as the UN Convention on the Rights of the Child). The African Committee notes that
Article 6(3) does not explicitly read, unlike the right to a name in Article 6(1), that “every
child has the right from his birth to acquire a nationality”. It only says that “every child has
the right to acquire a nationality”. Nonetheless, a purposive reading and interpretation of
the relevant provision strongly suggests that, as much as possible, children should have a
nationality beginning from birth. This interpretation is also in tandem with Article 4 of the
African Children’s Charter that requires that “in all actions concerning the child undertaken
by any person or authority the best interests of the child shall be the primary
consideration”. Moreover, this interpretation is further supported by the UN Human Rights
Committee that indicated: “States are required to adopt every appropriate measure, both
internally and in cooperation with other States, to ensure that every child has a nationality
when he is born” (African Committee’s emphasis).13Moreover, by definition, a child is a
person below the age of 18 (Article 2 of the African Children’s Charter), and the practice of
making children wait until they turn 18 years of age to apply to acquire a nationality cannot
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 is applied more of as rule than
in highly exceptional instances) of the State Party that leaves children of Nubian descent
without acquiring a nationality for a very long period of 18 years is neither in line with the
spirit and purpose of Article 6, nor promotes children’s best interests, and therefore
constitutes a violation of the African Children’s Charter.
43. The Complainants allege that birth registration certificate in Kenya explicitly indicates
that it is not proof of nationality thereby leaving even registered children stateless.
Furthermore, the Communication further alleges that while children in Kenya have no proof
of their nationality, they have legitimate expectation that they will be recognised as
nationals when they reach the age of 18. However, for children of Nubian descent in Kenya,
since many persons of Nubian descent are not granted the ID cards that are essential to
prove nationality, or only get them after a long delay, this uncertainty means that the future
prospects of children of Nubian descent are severely limited, and often leaves them
stateless. The Complainants further allege that a vetting process that is applicable to
children of Nubian decent is extremely arduous, unreasonable, and de facto discriminatory.
44. Therefore, central to the present Communication is the issue of statelessness. One of
the main purposes of Article 6, in particular Article 6(4) of the African Children’s Charter, is
to prevent and/or reduce statelessness. A “stateless person”, according to the 1954 UN
Convention relating to the Status of Stateless Persons, means “a person who is not
considered as a national by any State under the operation of its law”. There is evidence that
this universal definition of a “stateless person” is accepted as part of customary
international law. Therefore, a “stateless child” is a child who is not considered as a national
by any State under the operation of its laws.
45.
13
While complex issues of parentage, race, ethnicity, place of birth, and politics all play a
Human Rights Committee, General Comment No. 17, “Article 24: Rights of the Child”, (1989), para. 8.
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