What are the rights of a child born to a Kenyan and a refugee?

UNHCR data reveals that there were 550,827 refugees in Kenya as of April this year. According to the agency, almost half of the refugees in Kenya (43 per cent) reside in Dadaab, 41 per cent in Kakuma, and 16 per cent in urban areas, mainly Nairobi. Data also indicates that there are at least 18,500 stateless persons living in the country.

Out of the many who have crossed into Kenya and sought asylum in Kenya, there are those who have found love, married Kenyans and bore children. However, there is only one problem; the Government does not recognize children born in the country between Kenyans and refugees as her citizens. Is the minor a Kenyan or a refugee? This is the question that the court is being asked to answer.

Mahat Maulid, a father of 11, faces this dilemma. Maulid, a polygamous man, has a part of his family and children living the Kenyan dream while his other is at a refugee camp at Hagadera Refugee Camp. In his case filed before the High Court, he narrates that in his first marriage, he has seven children while in his second marriage he has four. The children from the second marriage are at the heart of the dispute between Maulid and Haki na Sheria Initiative against Interior and coordination of government Cabinet Secretary Kithure Kindiki, Director of General Citizenship and Immigration Services, Principal Registrar of births and deaths and Attorney General Justin Muturi.

The son, however, is the poster boy of the dilemma Kenyans who have children with refugees face. According to his case filed by Bashir and Noor Company advocates, his son codenamed AMM is known by the Government as a refugee despite having a Kenyan father. The boy was born on October 23, 2017, at Hagadera Refugee Camp in Dadaab and has been living with his mother since his birth.

The papers filed before the Constitutional Court reads that upon the minor's birth, his parents were issued with a birth notification bearing the United Nations High Commission for Refugees (UNHCR) stamp. Later on, he was given a birth certificate indicating that he was a refugee. At the same time, his details were entered into the refugee database.

"The birth notification bearing the UNHCR stamp, the certificate of birth bearing the 'refugee'' stamp and entry of particulars in the refugee stamp and the entry of particulars in the refugee database designate him, his siblings, and all the other children in similar circumstances," the case filed Tuesday reads in part.

The minor, according to the court papers is now fully confined in the refugee camp, cannot school outside the camp and cannot visit his extended family as law enforcement officers cannot allow them to leave.

"AMM and his siblings and other children in similar circumstances as him are not able to move out of the refugee camp. On multiple occasions, AMM and his siblings have tried to go to Garissa town for medical treatment, school, and family visits but were denied due to the nature of the birth notifications and certificate of birth issued to them by the respondents.

At all times, when they reached the barrier points between Dadaab and Garissa, their identification documents were sought, and as soon as birth notification bearing the UNHCR stamp or birth certificate bearing the words 'refugee' were produced they were sent back to Hagadera Refugee Camp," court papers also read.

Maulid attributes the challenges to the lack of a Registrar of Persons at Dadaab sub-county. He states that UNHCR is left to do the registrar's work at the camps.

"The third respondent's closest office is located in Garissa town, more than 100km away from Dadaab. This makes accessibility of services of the third respondent more difficult for children like AMM. The services of the third respondent that is issuance of birth notifications and certificates of birth are in fact provided by the UNHCR on behalf of the respondents," he claims adding that there are more refugees with birth certificates in Dadaab than Kenyans.

He continues: " Although AMM and his four siblings and all children in circumstances similar to them are Kenyans, the third respondent issues them with birth notifications that bear the UNHCR stamp, the certificates of birth with ' refugee' stamp and enter their particulars in the refugees' database. They have no choice but to receive these documents in that nature because that is all that is being offered by the respondents at the camps.

According to Kenya law, a person is a citizen by birth if on the day of the person's birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. The man also claims that the Government does not allow the rectification of such crucial documents when it is notified.

"By designating the children arising out of the union between a refugee and a Kenyan citizen such as AMM as refugees, the respondents unilaterally stripped these children of their Kenyan citizenship at birth and exposed them to statelessness," Maulid argues.

According to him, the Government has discriminated against his son and his sibling who was born by a refugee mother as compared to their step-siblings who were from their Kenyan mother. At the same time, he is of the view that his children have been denied a right to move in their country despite being born in Kenyan soil and by a Kenyan.

"It is the petitioner's case that the actions of the respondents that alter the destiny of children AMM, his siblings and other children in similar circumstances as him and other children arising from the union between Kenyan citizens and refugees and result in violation or threat to violation of their fundamental rights and freedoms enumerated above contravenes the rights of a child and principle of the best interest of the child contrary to Article 53 of the Constitution," he says.