Publié : 7/Avr/2016
Source: CRAI Blog
By Phelix Lore, Executive Director for Haki Centre, a human rights organization working in the coastal region of Kenya. Mr. Lore has been involved in research, advocacy and awareness raising on issues of statelessness and citizenship for the past five years. Can be reached through email@example.com
Heywood (1994) defined a “citizen” as a member of a political community that is constituted by both rights and obligations. T.H Marshall (1950) viewed citizenship as a full membership of a community. Citizenship is the relationship that occurs between an individual and a state, where the two are bound together by reciprocal rights and obligations. Thus, citizenship is a legal status and identity. In this relationship between a state and an individual, the state is regarded as a duty bearer while the individual (citizen) is a right holder. The state is supposed to invest specific rights and obligations to its citizens (objective dimension). In return, the citizen must have a sense of loyalty and belonging (subjective dimension).
A newborn baby can acquire citizenship based on either the principle of “jus soli” or the principle “jus sanguinis.” Jus soli refers to the law of the soil, and jus sanguinis refers to right of blood (Dora K., 2008). Under the concept of jus soli, citizenship is determined by the place of birth (birthright citizenship). On the other hand, under the concept of jus sanguinis, the right to citizenship is through the parents or ancestors (blood). The United States of America (US) practices jus soli, while Kenya practices jus sanguinis. What this means is that whoever is born in the US and is subject to US jurisdiction is automatically granted US citizenship. Conversely, whoever is born in Kenya is not automatically granted Kenyan citizenship unless either of his/her parents is a Kenyan.
In the Kenyan Constitution 2010, the conditions for citizenship are provided for in Chapter Three; Article 13 (2) states that “citizenship may be acquired by birth or registration”. Articles 14 and 15 further elaborate on citizenship by birth and by registration respectively. A Kenyan citizen by birth cannot lose his/her citizenship by acquiring citizenship of another county (that is, Kenya allows dual citizenship). Kenyan citizens by birth who had/have lost their citizenship are also entitled to regain the same upon application. Articles 14 and 16 tend to give more weight to citizenship by birth as compared to citizenship by registration.
The Kenyan constitution also allows certain categories of people to acquire citizenship through registration, including: a person who is married to a citizen for a period of at least seven years; a person who has been lawfully residing in Kenya for a continuous period of at least seven years; and a child who is not a citizen but is adopted by a citizen.
Despite the constitution of Kenya 2010 giving more weight to citizen by birth as compared to citizenship by registration, the Kenyan registration systems operate to the contrary. Kenyan citizens by registration are given a registration certificate upon successful application, which they can produce as proof of citizenship. On the other hand, Kenyan citizens by birth have no single document to show as proof of citizenship; they are forced to prove their citizenship over and over. Citizens by birth who are perceived to come from outside the “42 tribes” considered to be essentially Kenyan have continued to face discriminatory practices whenever they apply for nationality documents.
Article 7 of Convention on the Rights of the Child 1989 guarantees every child a right to legal name and nationality. However, Kenyan laws are not fully aligned with this article. Birth registration in Kenya is yet to be automated/electronic. Currently the system is manual and paper based. Most importantly, the birth certificates issued do not guarantee nationality to the child. Discussions on having a separate birth certificates for nationals and non-nationals is ongoing, but might not come to a conclusion very soon. Children of stateless communities can only get a birth certificate within a period of six month after birth (current birth registration). They are not able to benefit from late birth registration because the law requires additional documentations which they don’t have. Despite this, Kenya is still regarded as one of the best amongst her peers on matters of birth registration.
Amongst the most important nationality documents are birth certificates, national identity (ID) cards, passports, marriage certificates, death certificates, and a number of membership cards (National Hospital Insurance Fund (NHIF), National Social Security Fund (NSSF), political party registration card etc.). Of these documents, the national ID card is regarded as primary. It is the only document which is recognized by many in the country. While citizens by registration will only need to produce their registration certificate to acquire ID, citizens by birth are required to produce a number of documents including; birth certificate, baptismal card, copy of parents ID, school leaving certificate and any other document that the register of persons might deem fit.
Citizen by birth coming from border counties/districts and/or whose ethnicity are in question must undergo through a vetting process where they are asked a set of questions to determine if they qualify for registration. Cases where people are asked to go back to their “home” district, i.e. the place from which their parents originated are not new. Despite being born, and growing up in a town centre, many people have found themselves in a situation where they are told to go back to the village from which their father originated. Interestingly, they are usually better known by the government administrators within the town as compared to the administrator in the village. A number of people have become de facto stateless after several unsuccessful attempts to apply for national ID cards.
Fragmentation of registration process in Kenya is the main cause of the discrimination for the citizen by birth. In its current form, registration in Kenya is done by different departments with insufficient coordination. The much talked about Integrated Population Registration System (IPRS) in Kenya will go a long way in addressing discrimination in the issuance of nationality documents to citizens by birth.
- Convention on the Rights of the Child 1989
- Heywood, Andrew. 1994. Political Ideas and Concepts. An Introduction. New York: St. Martin’s Press.
- The Constitution of Kenya 2010
- Kostakopoulou, Dora (2008). The Future Governance of Citizenship. Cambridge University Press.
- Vink, Maarten Peter; de Groot, Gerard-René (November 2010). « Birthright Citizenship: Trends and Regulations in Europe ». Florence: European University Institute.