Nationality in Kenya is regulated by Chapter III of the Kenya Constitution 2010 and the 2011 Citizenship and Immigration Act. The Constitution removed gender discrimination in Kenyan citizenship law, and permitted dual citizenship for adults for the first time. The new constitution also states that every child has the right to a nationality from birth, and it provides for the first time that children of unknown parents shall be presumed to be Kenyan.
The act elaborates with more detail on the constitutional rules, and also provides temporary special procedures for stateless persons and others resident in Kenya since independence in 1963, and their descendants, to have the right to apply for citizenship in some circumstances, within a five year period of the adoption of the act.
These temporary procedures recall the provisions of Kenya’s independence constitution, which adopted the standard provisions of the Commonwealth countries on acquisition of citizenship: those born before the constitution came into force became citizens automatically if one parent was also born in Kenya; and those born or resident in Kenya without a parent born there could register as Kenyan citizens during a two year period after independence. Those born after independence became citizens automatically based on birth in Kenya. In 1985, however, the constitution was amended to remove rights based on birth in Kenya with retroactive effect to independence.
The Kenya Children Act 2001 provides for the right of children to a name and a nationality, but not to birth registration. The Citizenship and Immigration Control Act provides for a right to a birth certificate, but only for Kenyan citizens. Only an estimated 60% of births are registered, creating additional challenges to proving nationality.
An additional issue in Kenya has been the discriminatory treatment faced by members of certain ethnic groups in accessing national identity cards, required for all adults, which form proof of citizenship on a day-to-day basis. Members of ethnic groups resident in the border areas or otherwise viewed as un-Kenyan — including Nubians, Somalis, Maasai, Swahili, Teso and Borana — have been subjected to additional “vetting”. Members of these groups are often asked to produce additional documentation before an identity card is issued, sometimes including things like the birth certificates of grandparents, which are nearly impossible to produce; or face harassment and endless delays when trying to access passports, ID cards and other documentation (see “key resources”).