By Dr. Julie Lugulu, LL.D
Statelessness, the lack of a nationality between an individual and any country, is a global issue affecting millions of persons around the world. It remains a pressing human rights concern across Africa and in Kenya, affects both adults and children. Statelessness results from discrimination, forced migration, colonialism and inadequate safeguards within citizenship laws. Statelessness among children is of importance because without nationality, children are denied access to their rights, predisposing them to exploitation and perpetuating intergenerational statelessness.
Two contexts of childhood statelessness
Childhood statelessness in Kenya emerges in two main contexts.
In non-migratory contexts, it affects ethnic minorities and non-indigenous communities. Groups such as the Nubians, Waata, Shirazi, Coastal Arabs, Kenyan Somalis, Galjeels and persons of Burundian, Rwandan and Congolese descent frequently face challenges when seeking national identity documents.
In the migratory context, Somali children born in Kenya, to refugee parents in protracted refugee situations face limited prospects of acquiring Kenyan citizenship through naturalization. This is compounded by their parent’s lack of proof of a legal bond with their country of origin, due to the protracted refugee status.
Legal foundations and persistent gaps
Kenya has normative foundations that could prevent and remedy statelessness. The Constitution 2010, the Citizenship Act 2011 and the Children Act 2022 provide important protection. Recent administrative reforms and Kenya’s transition from physical identity to digital identity show commitment to align with SDG target 16.9 that aspires to provide legal identity for everyone, including children.
However, significant gaps in law and practice undermine full compliance with international human rights obligations. Consequently, various challenges impede Kenya’s full implementation of the children’s right to a nationality. First, the adoption of a foundling provision that is intended to provide nationality to children whose parents are unknown lacks sufficient safeguards to fully protect children from statelessness. Secondly, the introduction of a verification procedure for minorities and non-indigenous communities when applying for identification documents risks excluding these communities if applied in a discriminatory manner. Thirdly, the implementation of a digital identification without conducting a Data Protection Impact Assessment (DPIA) has the potential of violating the right to privacy for both adults and children. Lastly, the securitization of Somali refugees existing in protracted situations puts their children born in exile at the risk of becoming stateless refugees.
A child rights-based approach
This research proposes for a child rights-based approach to address the challenges hindering Kenya’s full compliance with its international human rights law obligations. This approach is centered on four normative principles: the best interests of the child, non-discrimination, the right to life survival and development and participation. Moreover, the African Charter on the Rights and Welfare of the Child provides the added value aimed at promoting and protecting nationality rights by emphasizing protection tailored to the lived realities of African children.
Priority reforms
In order to comply with its international human rights law obligations, Kenya must pursue several reforms. First, it should amend constitutional and legislative citizenship provisions to allow all foundlings to acquire Kenyan citizenship without an age limit, prevent revocation of citizenship that would render a person stateless unless another nationality is proven, and grant citizenship to children born in Kenya to stateless parents. Second, Kenya should also amend the Children Act 2022 to restore the state's responsibility to assist children whose nationality has been illegally deprived. Third, safeguarding digital identity reform requires human rights and data protection impact assessments before implementation and child specific protections for biometric data in the Births and Deaths Registration (Amendment) Act. Finally, Kenya should operationalize sections 15–17 of the Citizenship Act 2011 to allow stateless persons, stateless migrants, and their descendants to apply for citizenship, consider accession to the 1954 and 1961 statelessness conventions (including a statelessness determination procedure), and consider ratifying the African Union Protocol on the Right to a Nationality and the Eradication of Statelessness.
Implementation and institutional collaboration
Law reform must be matched by coherent administrative practice and judicial oversight. The executive legislature and judiciary must coordinate to remove bottlenecks that stifle the rights of stateless children. Continuous training for parliamentarians’, administrative officers and magistrates on the children’s right to a nationality will foster consistent interpretation and child sensitive procedures.
Data driven responses are key. The State Department for Immigration, the Kenya National Bureau of Statistics and UNHCR should collaborate on a census and targeted survey of at risk communities including Nubians, Waata, Shirazi Coastal Arabs, Kenyan Somalis, Galje els and persons of Burundian Rwandan and Congolese descent as well as Somali refugees. Accurate data will reveal the scale and drivers of statelessness and enable targeted remedies.
Regional and civil society roles
African human rights bodies including the African Commission on Human and Peoples Rights and the African Committee of Experts on the Rights and Welfare of the Child should promote the justiciability of the right to nationality and develop jurisprudence and general comments clarifying state obligations toward stateless children.
Civil society, national human rights institutions, the media and academia play critical roles. Strategic litigation, advocacy, monitoring, public awareness campaigns and empirical research will support reform momentum and ensure that policy is informed by lived experience.
Conclusion
Childhood statelessness in Kenya results in the denial of children’s rights and predisposes them to trafficking, early marriages and other vices. If it is unresolved it would result in intergenerational statelessness. Strengthening legal protections, introducing safeguards for digital identity, operationalising citizenship provisions and engaging regionally will enable Kenya to fulfill its international obligations and secure the right to a nationality for every child.