New law does not gift fraudsters citizenship, only protects children

Bobby Mkangi

There has been some debate around the citizenship chapter on Article 14 (4), which states that:

"A child found in Kenya who is or appears to be less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth".

Certain quarters argue that this clause is open to all sorts of mischief including increased trafficking of children into Kenya or that it may be used as a means of entry by foreigners who wish to settle in Kenya. However, these fears are not justified as it is important to note that this article must be read together with Article 17 (2), which states as follows:

"The citizenship of a person who was presumed be a citizen by birth, as contemplated in Article 14 (4), may be revoked if –

(a) the citizenship was acquired by fraud, false representation or concealment of any material fact by any person;

(b) the nationality or parentage of the person becomes known, and reveals that the person was a citizen of another country; or the age of the person becomes known, and reveals that the person was older than eight years when found in Kenya."

In other words, if a person was to think of gaining citizenship by sending their children to masquerade as orphan Kenyans, or the child is lying, then this discovery will render any advantages including citizenship inactive and useless. Non-Kenyans of any age may not benefit from this clause. This article is meant to protect foundlings that is, orphans, abandoned children, children living and working in streets, and lost and found children. Many of such children cannot trace their roots or remaining family if any. Even though there are programmes to assist these children, when they turn 18 years, it becomes impossible for them to get an ID because they have no birth certificates or known proof of parenthood.

As one might imagine, life without an ID in Kenya is impossible since one can neither secure a job, a bank account nor gain access to some bare necessities. As a result, many of these orphans are doomed to life in oblivion.

This problem was brought to the urgent attention of the Committee of Experts, and hence the provision in 14(2). The rider in 17(2) is to ensure it is these children who suffer so much, and who are Kenyans, who benefit and not other children who may be foreigners and seeking fraudulent means to become Kenyans. Kenyans of goodwill agree that these children in need of care and protection, should not be damned to statelessness as many of them currently now are.

It is important to note Uganda and Ghana have similar provisions in their constitutions, and that even within the Kenyan Children’s Act, one of the particular rights of children is the right to a name and nationality, which facilitate their enjoyment of other rights. It needs to be pointed out that the clause was also present in the Wako draft, the Bomas draft and the Ghai draft where it was included on the basis of concerns of Children Rights groups in Kenya.

The writer is a member of the Committee of Experts