Foreigners at Home: The Dilemma of Citizenship in Northern Kenya

Published: 1/Jun/2009

Report by the Kenya Human Rights Commission (an NGO distinct from the Kenya National Commission on Human Rights) on discrimination against members of certain ethnic groups in the acquisition of Kenyan citizenship and national identity cards.

Summary

Once a neglected issue in political discourse, citizenship has now emerged as a central concern. It has become a highly contested conceptual territory as individuals are less defined as members of social class and more as citizens. As the prominence of dialogue on citizenship increases, so have its challenges. Decades of associating citizenship with human rights may have elevated its profile, but has not liberated citizenship from politics and violations.

Centuries of debate and practice have not clarified the definition of citizenship. While citizenship conjures the notion of civic duties, unwavering loyalty and a legal link to a polity, and equal access to state institutions, its limits span across a social and spatial divide. For centuries citizenship rights have been inflicted by exclusive tendencies. Ancient Greece for instance excluded slaves and women from participating in processes ordinarily reserved for citizens. Just as in the past, equality in accessing state institutions and public participation in decision making remain key challenges to citizenship and its discourse. Since 1990, different African countries have witnessed denationalisation resulting in intra-national conflicts. Kenya, however, only experienced tacit contest on citizenship. Discourse on citizenship in Kenya has been mostly confined to the affected groups and among the Civil Society Organizations (CSO) with minimal reference to mainstream society. This study explores Northern Kenya as a case study of the manner in which skewed allocation of resources and politics of exclusion together affect citizenship rights.

Formal citizenship in Kenya has its genesis in colonialism. In theory, colonial Kenya had equal citizens. However, in practice the State enforced a system of ‘unequal citizenship’. White settlers enjoyed all citizenship rights while the natives were invariably considered ‘subjects’. It is arguable that after independence, Kenya retained this ‘dualism’ in its definition and approach to its citizens.

The basis of citizenship acquisition in Kenya has remained limited to birth, marriage and residency. While birth may be considered a foundation for acquisition of citizenship all over the world, the interplay between two concepts – jus sanguinis (blood relationship) and jus soli (territorial relationships) – holds precedence in Kenya so that descent takes supremacy over birth as proof of citizenship. Rather than use lineage to determine the identity of Kenyans born out of Kenyan jurisdictions, lineage is used to determine the identity of those born within Kenyan borders leading to exclusion. This is further nuanced by ethnicity, regionalism and gender. For instance, women do not as a right confer citizenship to their foreign spouses and while members of certain ethnic groups are considered bonafide citizens, others have to qualify.

Furthermore, the concept of citizenship is reduced to possession of National Identity Cards (ID cards) without which one misses out on countless opportunities and freedoms. The acquisition of an ID card is viewed not as a right but a State prerogative. In practice however, the propagation of ‘insider’ and ‘outsider’ ideologies has led to the repudiation of these opportunities and freedoms for even those with ID cards. Moreover, Government procedures for the issuance of ID cards are not equal for all Kenyans

Applicants for Kenya’s citizenship in the Northern region often undergo stringent vetting – at least compared to other peoples in other parts of Kenya. Being female, Muslim or belonging to the Somali ethnic group further complicates the application procedures for obtaining a passport or ID card. Women from the region for instance are without automatic citizenship and must be linked to men (husbands or fathers). The result of this has been the chronic delay and outright denial of this valuable document to many people in the region.

This institutionalized discrimination has continued in violation of the Constitution of Kenya which expressly prohibits discrimination. Kenya is also a signatory to a number of international human rights instruments stipulating equality for all and prohibiting discrimination on all grounds. Historical marginalisation has worsened the exclusion of Northern Kenya. The region has been neglected in resource allocation, infrastructural development, political voice and representation causing its residents to dangerously sit on the edge of statelessness. Thus, Northern Kenya residents may not count on their citizenship let alone their nationality.

While welcoming the National Registration Bureau’s nationwide directive in 2006 given to administrative personnel to cease requesting for grandparents’ documentation as proof of citizenship, addressing citizenship rights will need more careful consideration. This study calls for the elimination of arbitrary citizenship denials, citizenship-based discrimination and protection against statelessness. Calls have also been made for the restructuring of the ID cards management system and the creation of a centralized database of birth registration information to help limit the practice of discriminatory identification procedures in adulthood.

The Kenya Government and international organisations such the United Nations High Commission for Refugees (UNHCR) are also urged to work towards protecting minorities from becoming stateless.

The reassessment of the relationship between the Central Government and the people in the provinces is more salient than ever in the wake of the xenophobic violence that followed the 2007 general elections. Promoting equal citizenship and equal access to citizenship as a basis for national integration is crucial if Kenya is to recover from decades of neglect, ethnicity, structural marginalization and other historical injustices. Redefining identity and cultural belonging in Northern Kenya and the country as a whole will call for honest national dialogue and constitutional reforms on, amongst others, citizenship.

Policy makers must now consider new legislation to enhance citizenship rights of minority and vulnerable groups (for instance, women, children, and refugees). In addition, public knowledge on citizenship needs to be prioritised. This study therefore calls for legal, policy, institutional and administrative changes to address institutional discrimination, exclusion and marginalisation.

Download from KHRC website:

PDF:  KHRC Foreigners at Home

Themes: Discrimination, Ethnic/Racial/Religious, Identity Documents, Birth Registration, ID Documents and Passports, Statelessness
Regions: Kenya
Year: 2009