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VAS

Nubians: Stateless or second-class citizens?

COMMENTARY
By Ben Karuga | August 24th 2015

NAIROBI: The international definition of a stateless person set out in Article 1 of the 1954 Convention relating to the Status of Stateless Persons. The article defines a stateless person as “a person who is not considered as a national by any State”. It is believed there are some 15 million stateless people.

According to United Nations High Commissioner for Refugees (UNHCR), one acquires nationality automatically at birth or you obtain one later on in life. Those who acquire nationality at birth are through birth in a territory (jus soli) or parents transmit their nationality to their children (jus sanguinis). Article 15 of the Universal Declaration of Human Rights establishes the right of every person to a nationality.

The 2009 National Census in Kenya gives recognition to tribes like Wafaza - with a population of 487, Wakatwa (172), Wakilifi (711), Wakilindini (699), Washaka (289), Watangana (644) - as part of the Swahili tribe. It recognises little-known Isaak at 3,160 and Leysan at 5,941. The Kenyan Americans feature at 2,422.

Sadly and shockingly, the Nubian community is not mentioned. They are lumped as ‘other Africans’ at 244,866. Ugandans, Tanzanians, Burundians and Rwandans are recognised but not those who named KIBRA (land of forest). This community has been discriminated against for generations.

The Nubians’ ancestors were Sudanese soldiers incorporated into the British Army and brought to Kenya in the 1900s. In 1912, the British government designated 4,197 acres of land for the Nubians in Kibera.

In total, there were 17 Nubian Garrisons in Bungoma, Kisii, Iten, Kisumu, Kibos, Mazeras, Kibirigo, Migori, Katumo, Meru, Isiolo, Mogotio and Mombasa. They were issued temporary land licences. Since independence, Kibera has been a contested land.

In 1971, a Bill to demarcate and title land parcels in Kibera was passed, yet never implemented. Nubian claims to title have never been recognised. Nubians living in Kibera are still considered squatters, though they settled there generations ago.

In Bungoma, they settled where the prisons is located. Their land was later confiscated without compensation. Majority moved to an informal settlement scheme called Mjini.

For over 100 years, the Nubian community has been denied recognition. In its battle for recognition, the community spearheaded by Yunus Ali and centre for the minority and development, moved to the High Court in 2003 seeking judicial interpretation regarding their right to citizenship.

The Government opposed the motion on grounds that the application was 40 years late. They insisted the Nubians’ right to apply for automatic citizenship ceased to exist on December 12, 1963 with Kenya’s independence. Nubians should have renounced citizenship from their country of origin.

Due to lack of recognition as a tribe and their claim to land being contested by successive governments, the Nubians have been unable to fully participate in society. They can’t access important documents; a right for every citizen. Lack of IDs implies non-existence. An ID confers a formal authority to claim the rights of a citizen.

Lack of which means denial of political rights such as right to vote, access to institutions of learning, right to register for mobile phone services, access proper healthcare, open a bank account, enter into formal employment or even get a death certificate and years yonder pray not to meet the police. This spells doom to Nubians.

Those with ID cards dare not lose them. Regarding passports, let’s not even go there. To acquire an ID, the Nubians undergo rigorous vetting. According to Mzee Nasoor Yusuf, the Secretary Bungoma Nuby community and coordinator of the Kenya Nubian Council of Elders in Bungoma, vetting requires the applicant’s birth certificate, elders’ affidavit, copy of elders’ ID cards, copy of parents’ ID cards, school leaving certificate. Majority of the applications are rejected without explanations from the registrar.

I can only contrast with my recent smooth operation at one of the Huduma Centres. Vetting is supposed to be done for the people at the country’s borders whose nationality is questionable. A Nubian in Kibera is not at the border. In 2009, the Minister for Immigration and Registration of Persons, the late Otieno Kajwang, admitted that vetting was discriminatory and needed to be revised.

The 2010 Constitution states that minority are to be considered in appointments. The Imam at Bungoma prisons and chair of the Nubian youth community, Yakub Talib, contends that the Nubians are Islams and use Islamic names. A distinction is never made between a Nubian and other Islamic Kenyan tribes. The appointment of a Muslim minority is considered good enough to placate the Nubians.

Article 6 of the Constitution states that any treaty or convention ratified by Kenya shall form part of Kenyan Law. The Government should thus uphold Article 15 of the Universal Declaration of Human Rights establishing the right of every person to a nationality. Article 13(2) on acquisition of citizenship by birth is a constitutional right, at worst it should be recognised that article 14(4) guarantees right to citizenship to a child who appears less than eight and whose nationality and parents are not known.

The Nubians are Kenyan citizens and ought, as per article 20(2), to enjoy the fundamental freedoms in the Bill of rights.

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