The Pemba Minority Stateless in Kenya

Author: Hiba Zene, GHRD

"Statelessness is the world’s “most forgotten human-rights problem" as to be stateless, to not have a nationality, means that "you are not able to send children to school or go to a health center, to be able to work legally or to have property".

-António Guterres, UN High Commissioner for Refugees, 2011

Although, Kenya has ratified and signed various international and regional human rights law instruments, such as the CERD, ICCPR, CRC, CEDAW and the ACHPR. All containing provisions regulating the substance of the right to a nationality and that protect against statelessness. Safeguarding the right to nationality and protecting against statelessness remains to be a challenge for the government of Kenya. As marginalized groups such as the Pemba community continue to be deprived of nationality and continue to be discriminated against in Kenya. 

Although, Kenya has ratified and signed various international and regional human rights law instruments, such as the CERD^[1], ICCPR^[2], CRC^[3], CEDAW^[4] and the ACHPR^[5]. All containing provisions regulating the substance of the right to a nationality and that protect against statelessness. Safeguarding the right to nationality and protecting against statelessness remains to be a challenge for the government of Kenya. As marginalized groups such as the Pemba community continue to be deprived of nationality and continue to be discriminated against in Kenya.

Kenya is home to an estimated 18,500 stateless persons that belong to or are members of a marginalized ethnic group, such as the Pemba minority. It is home to an estimated 4000 members of the Pemba minority, who are earning their living through fishing and subsistence farming. 

The Pemba minority originated from the Tanzanian island of the same name, arrived in two major waves of migration to the southern coast of Kenya. The first group arrived between 1935 and 1940 in search of better livelihood opportunities. While the second group arrived in Kenya between 1963 and 1970, also seeking a better livelihood, but most fleeing the violence resulting from the 1964 Zanzibar Revolution. 

©UNHCR[6]
                                               

Unfortunately in 1963, the members of the Pemba community failed to register with the post-colonial government. Leaving them without any state connection, national identity, and any basic legal identification documents, such as an ID card or a birth certificate. Members of the Pemba community describe that the discrimination they are facing has extensive consequences, as they cannot access genuine employment, health services, education, open a bank account or get a loan and cannot purchase land or property.

In an interview the Human Rights TV Channel of GHRD, Mwalimu Mkhasha a member of the stateless Pemba community stated;

"The discrimination that stateless people feel is in all those areas that require identification. For example, they feel discriminated against because they cannot access genuine employment. They cannot own land, move freely, go for higher education or health insurance funds and therefore, they continue to feel discriminated against." - Mwalimu Mkhasha

Kenyan authorities do not recognize members of the Pemba minority as Kenyan nationals even though these individuals have been living in Kenya throughout their whole lives. From a legal perspective, this means that these stateless individuals are viewed as being simply "non-existent" by government officials, and for that reason, no state protection is granted. Depriving them of nationality and impeding their basic fundamental human rights. Preventing them from accessing their right to healthcare, right to education, right to meaningful employment, right to own property, and their right to free movement.

“When it comes to employment it is very difficult for stateless persons to access employment. Most of the time they can only secure manual labor and even in those cases they are treated differently and discriminated against. As they prefer to employ other Kenyans or any other person rather than a stateless person. They kind of view them as a lesser person, who is less deserving, and therefore stateless persons get paid less. This practice is discriminatory as they would rather employ Kenyans or other persons, but not stateless individuals. And in cases where stateless persons have secured a job, payment is not equal, as Kenyans are paid better than stateless persons.” -Phelix Lore

The Pemba minority is not registered accurately in Kenya and is therefore not equipped with basic documentation, such as an ID card or a birth certificate. They are treated differently and often discriminated against when compared to other Kenyans. And, are excluded from accessing legal or sustainable employment, obtaining loans and licenses, and denied the ability to own their own property, which would allow them to make a decent living. Making them vulnerable and placing them at a disadvantage when compared to other Kenyan citizens. For example, when an environmental catastrophe occurs, the donations are made for identifiable persons only and hence not them.  

"The government has been providing financial support to poor families during the COVID-19 lockdown. Each week, each family is provided with at least one thousand Kenyan shillings by the government. However, only those who have identification receive it. This means that we don’t receive anything from the government and are left out." - Mwalimu Mkhasha

"We have been dealing with cases where the government is giving out food and aid to its citizens and taking care of them. While simultaneously, the Pemba and other stateless communities were given nothing and left out, because they could not produce any ID cards. As, for the government, the identity card is the number one accounting document, and without it, no government officer would give out any food or other aid to stateless persons." - Phelix Lore

©UNHCR[8]

Although, Sections 15, 16, and 17 of the Kenyan Citizenship and Immigration Act of 2011, contain provisions addressing the issue of statelessness, stateless children, and the registration of stateless persons. The effective implementation of these provisions remains to be challenging and incomplete due to the lack of procedural guidelines. 

 "Section 15, provides that stateless persons living in Kenya for a continuous period since December 12, 1963, may be considered for citizenship upon fulfilling set criteria[8]. This definition of statelessness in the Kenyan Citizenship and Immigration Act of 2011 contains a time limit, as it at all times refers to “since 1963”. This is very limiting as it seems to only recognize people who have been in the country before or during independence. Excluding, all other individuals who became stateless within the boundaries of the country or who came to the country after independence."- Amos Mwatata

Another cause of statelessness is related to practice in Kenya. The lack of adequate administrative procedures regulating the registration of stateless persons in Kenya. That continues to allow government authorities to have a lot of power and discretion when examining and reviewing citizenship applications. For example, registration offices maintaining discretion to request from applicants documentary evidence before issuing any documents, such as birth certificates or other various additional documentation that require repeated trips to countless different government buildings causing additional travel expenses and delaying the proceedings. These administrative practices contribute to the issue of statelessness in Kenya, as these offices can also decide to cancel their registration and even revoke ID cards. 

 ©UNHCR[9]

"On paper, it is impossible for stateless persons, migrants, and descendants of stateless persons to register for citizenship. As there is no administrative procedure that regulates the registration of stateless persons in Kenya."- Amos Mwatata

State authorities continue to subject stateless individuals despite being legally recognized by the government as a tribe or community to very difficult “vetting” procedures. When applying for nationality documents it subjects members of minority groups to long and scrutinizing procedures to prove their eligibility for citizenship. For example, when applying for nationality documents, minority groups are often requested to provide for additional documentation, such as land titles, screening cards, and grandparents' IDs, which are difficult to produce or obtain^[10]. It places an unnecessary burden on these minority groups and directly discriminates against them.

"We cannot benefit from many areas that others have access to because we lack documentation. We cannot open a bank account, own property, businesses, or own land. We don't have access to basic healthcare insurance funds, education and we are not free to move or travel. There are even certain buildings we cannot get into or access, as they require identification which we don't have." -Mwalimu Mkhasha

The Constitution of the Republic of Kenya[11], the Kenyan Citizenship and Immigration Act of 2011[12], the Security Law Amendment Act of 2014[13], and the Children Act of 2001[14], all contain provisions concerning the acquisition, restoration, retention, and loss of nationality. And, yet Kenya does not provide for any adequate or effective protection against statelessness. Kenya fails to particularly provide for citizenship by birth for children born in Kenya to stateless parents or who would otherwise be stateless if citizenship is not granted.

"Statelessness in Kenya is generational or inherited. Mainly because our laws don’t contain procedures or measures that safeguard children who otherwise would be stateless." -Amos Mwatata 

In 2018, the United Nations Commissioner for Refugees and the Kenya Human Rights Commission, and other non-governmental organizations including the Haki Centre have intervened and urged the government of Kenya to act and address the issue of statelessness. Their intervention was successful and the government made some major efforts to improve the issue of birth registration. Since 2018, children from stateless communities, who are born in a hospital are provided with birth notification cards that permit the parents to get official birth certificates later on. A significant improvement except for the fact that the Kenyan government excluded all children who were born before this measure was adopted and those without a birth notification card. 

"In order for our children to continue with their educations, members of the Pemba and the community has been forced to register their children as members of the Digo community." - Mwalimu Mkhasha

The denial of legal identity, the right to a nationality can deprive a child of fundamental human rights, which in turn “have longstanding consequences on children’s social, economic, and personal development”. Discriminatory policies requiring a citizen status or documentation to access state services often imply the total exclusion of children from education, basic healthcare services, and social benefits. Preventing them eventually from obtaining official educational certificates or legal employment and depriving them of their basic human rights.

According to the UNHCR, the best interests of the child principle is to be understood as “that children are not be left stateless for an extended period”^[15]. UN institutions and various other Human Rights bodies have strongly emphasized the importance of the principle of the best interest of the child. More specifically, that this principle demands that children be protected from statelessness, as statelessness can impede a child’s development and even survival by obstructing their access to healthcare and education, for instance[16]. Kenya repeatedly fails to take into consideration the importance of the child’s best interests in all state actions, as argued in the case of Nubian Minors v. Kenya^[17].

The Nubian Minors v. Kenya case illustrates how stateless children have been negatively affected and denied access to education in Kenya. The petitioners, in this case, argued that Kenya had violated their rights to equal access to education. By placing significant burdens and difficulties on them in the process of acquiring legal documentation such as ID cards required for school enrollment. In this case, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), found that Kenya's vetting system "unlawfully discriminated" against Nubian Children in violation of Art. 3 of the ACRWC, leaving them stateless or at risk of statelessness, with no legitimate hope of gaining recognition of their citizenship. As a result, Nubian Children lack access to education and adequate healthcare, which violates Kenya's obligations under Art, 14(2)(a) - (c), (g), and Art. 11. (3). 

The Convention on the Rights of the Child, which applies to every child within the state’s jurisdiction, without discrimination[18].  Provides that every child has the right to acquire a nationality and to be registered immediately after birth. Meaning, states such as Kenya, must ensure that children enjoy these rights in practice and where a child is denied his or her identity, State Parties must provide “appropriate assistance and protection”[19]. This means that Kenya is obliged to adopt and implement measures that grant every child the right to a nationality. Especially, where the child would otherwise be left stateless. This is where the government officials of Kenya fail to provide for adequate protection.

[1] Acceded to the Convention on the Elimination of All Forms of Racial Discrimination on October 13, 2001.

[2] Acceded to the International Covenant on Civil and Political Rights on March 23, 1976.

[3] Acceded to the Convention on the Rights of the Child on September 2, 1990.

[4] Acceded to the African Charter on Human and Ratified the Convention on the Elimination of All Forms of Discrimination Against Women on April 8, 1984.

[5] Acceded to the African Charter on Human and Peoples’ Rights on January 23, 1992.

[6] Kenya. Pemba minority hoping to escape statelessness – UNHCR Kenya, 2017. Available at:  https://www.unhcr.org/ke/12661-unhcr-report-exposes-discrimination-pervading-life-stateless-minorities-worldwide.html/kenya-pemba-minority-hoping-to-escape-statelessness

[7] Kenya. Pemba minority hoping to escape statelessness – UNHCR Kenya, 2017. Available at:  https://www.unhcr.org/ke/12661-unhcr-report-exposes-discrimination-pervading-life-stateless-minorities-worldwide.html/kenya-pemba-minority-hoping-to-escape-statelessness

[8] Kenya: s.15 of the Kenya Citizenship and Immigration Act, 2011, Act No. 11 of 2011, 30 August 2011, available at https://www.refworld.org/docid/4fd9a3082.html   

[9] Kenya. Pemba minority hoping to escape statelessness – UNHCR Kenya, 2017. Available at:  https://www.unhcr.org/ke/12661-unhcr-report-exposes-discrimination-pervading-life-stateless-minorities-worldwide.html/kenya-pemba-minority-hoping-to-escape-statelessness

[10] UNHCR video titled “Stateless minorities: The Pemba of Kenya https://www.youtube.com/watch?v=FSG7nzqJnDg    

[11]  The Constitution of Kenya [Kenya], 27 August 2010: See note 190

_[12] Kenya: The Kenya Citizenship and Immigration Act, 2011 [Kenya], Act No. 11 of 2011, 30 August 2011, available at http://www.refworld.org/docid/4fd9a3082.html  

_[13] Kenya: The Security Laws (Amendment) Act, 2014: See note 205.

_[14] The Children Act, 2001 [Kenya], No. 8 of 2001, 31 December 2001, available at http://www.refworld.org/docid/47975f332.html    

[15] UNHCR, Guidelines on Statelessness No. 4, Ensuring Every Child’s Right to Acquire a Nationality through Articles 1–4 of the 1961 Convention on the Reduction of Statelessness, HCR/GS/12/04, 2012, para 11, http://www.refworld.org/docid/50d460c72.html

[16] UNHCR and Plan International, Under the radar and under-protected. The urgent need to address stateless children’s rights, 2012.

[17] African Committee of Experts on the Rights and Welfare of the Child, Nubian Minors v. Kenya, 22

[18] Plan SA (2012: 11): See note 3.

[19] The Convention on the Rights of the Child, Article 7: See note 34.