Nationality

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Communication 1 of 2015
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African Committee of Experts on the Rights and Welfare of the Child
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Nationality

DECISION ON THE COMMUNICATION SUBMITTED BY THE AFRICAN CENTRE
OF JUSTICE AND PEACE STUDIES (ACJPS) AND PEOPLE’S LEGAL AID
CENTRE (PLACE) AGAINST THE GOVERNMENT OF REPUBLIC OF SUDAN THE
AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE
CHILD (ACERWC)

COMMUNICATION No: 005/Com/001/2015
DECISION No: 002/2018

This document is originally written in English

1.        PROCEDURE OF CONSIDERATION OF THE COMMUNICATION

2.  The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a Communication dated 19 August 2015 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by the African Centre of Justice and Peace Studies (ACJPS) and People’s Legal Aid Centre (PLACE) (hereinafter “the Complainants”) against the Government of the Sudan. According to Section IX (2) (I) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communications Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party. Upon receipt of the Communication, the State Party submitted its response on 09 November 2015. In accordance with Section IX (2) (vi) of Revised Communications Guidelines, the Committee forwarded the responses of the Respondent State to the Complainants who also submitted additional clarifications within the time limit. Following the deliberation on the required elements on admissibility, the Committee ruled that the Communication is admissible and forwarded its ruling to the parties on 16 January 2017.

3.  The Committee, pursuant to Section XI of the Revised Guidelines on communications, deems it necessary to conduct a hearing on the Communication where the parties are invited to make oral submissions before it. Accordingly, the Committee conducted a hearing on the merits of the Communication on 11-12 December 2017 during its 30th Ordinary Session held in Khartoum, the Sudan, in the presence of the representatives of the Complainants and the Respondent State.

4.  During the hearing on 11 December 2017, the Respondent State submitted a request for the matter to be settled amicably pursuant to Section XIII of the Revised Guidelines on Consideration of Communication. The Committee notes that, pursuant to provisions of the Revised Communications Guidelines, any of the parties, preceding the clear consent from the other party in the communication, can propose for the matter be settled through an amicable settlement. Following the request by the Respondent State, the Committee, guided by the provisions of the Charter, the Revised Communications Guidelines and the principle of the best interests of the child, availed its good offices to facilitate discussion for settlement between the Parties.

5.  After consultations, the parties in the Communication informed the Committee that they could not reach an agreeable level of consensus which would help them settle the matter amicably. The Committee was specifically informed that the Complainants could not agree with the offers that the Respondent State has tabled for the amicable settlement. The offers that the Respondent State placed before the Complainants include fast-tracking the process through which Ms Iman Hassan Benjamin can get her ID [within two month time]; and finalising the already started comprehensive legal reform process with a view to amend various laws to make them compatible with treaties that the Republic of the Sudan is a party to.

5.  However; the Complainants were not satisfied with the offers that the Respondent State proposed. Particularly, the Complainants raised the following issues as a bone of contention:

i.        The Complainants are of the opinion that two months is too long to provide an ID for MS Iman since such process, under normal circumstances, should not take more than 3 days. Hence, the Complainants proposed this to be done within weeks, and not months, which was not agreed to by the Respondent state;

ii.        The Complainants have stated that Iman has paid school fees for 5 years because she did not hold Sudanese nationality, hence the Complainants have asked for the reimbursement of those fees, which the Respondent State did not agree with; and

iii.       Regarding the legal reform, the Complainants requested that the reforms should remove the impediments under the 1994 Nationality Act as amended in 2011 which prescribes for the automatic withdrawal of someone’s nationality. Though the Respondent State submits that it is undertaking general and comprehensive legal reforms, it is the view of the Complainants that the proposal on legal reform made by the Respondent State was vague.

6.  Considering the above, the Committee notes that no agreement has been reached between the parties. Therefore according to Section XIII (2) (4) (b) of the Revised Communication Guidelines, the Committee terminated its facilitation of an amicable settlement as no agreement was reached.

II. Summary of Alleged Facts

10 The Complainants allege that Ms. Iman Hassan Benjamin, who currently resides in Sudan was born on 5 September 1994 in Sudan to Ms. Hawa Ibrahim Abd al-Karim and Mr. Hassan Benjamin Daoud who were married on 5 April 1980. The marriage was conducted by the sharia ma’zoun [notary] of al-Hasaheesa town, Al-Jazeera state, Sudan.

11 The Complainants further allege that Ms. Iman’s mother, Ms. Hawa Ibrahim Abd al- Karim belongs to the Daju tribe, a tribe in Western Sudan. She was born on 1 January 1962, in the village of Wad Kaamil, east of al-Hasaheesa town, Al-Jazeera state, Sudan. According to the Complainants, the mother is a Sudanese national and holds a Sudanese Nationality certificate. She was also registered under the Civil Registration Act, 2011 and has a Civil Registration Certificate.

12 It was also the Complainants’ submission that Ms. Iman’s father, Mr. Hassan Benjamin Daoud, was born in Juba and is from the Baria tribe, Yei District in Equatorial State in what is now South Sudan. They further allege that he lived most of his life in Al-Hasaheesa town in Sudan and served in the Sudanese Police Force. On 9 July 2011, almost six months after the death of her father, South Sudan seceded from Sudan. Ms. Iman’s father’s death certificate states that, he died at the Khartoum Hospital on 29 January 2011. It was also recorded on his death certificate that he was a Sudanese national and a resident of al-Hasaheesa.

13 The Complainants stated that Ms. Iman completed her primary and secondary school education in Al-Hasaheesa town in Sudan. After receiving her grades upon completing her secondary education, she decided to apply for a university education. According to the University’s enrolment rules she could qualify to register as she scored 59%. While she was filling out the application form, she noticed a section on the form that required her to indicate her national identity details which she did not have.

14 The Complainants submitted that on 19 July 2011, the National Assembly of the Republic of Sudan adopted amendments to the Sudan Nationality Act of 1994. These amendments entered into force on 10 August 2011 following signature of the President of the Republic of Sudan. These amendments provide for, among others, the automatic revocation of Sudanese nationality of those who became citizens of the Republic of South Sudan. The amendments further provide that Sudanese nationality shall be revoked where the Sudanese nationality of the responsible parent is revoked because of de facto or de jure entitlement to South Sudanese nationality. According to the nationality laws of the Respondent State, dual nationality with South Sudan is not permitted.

15 The 2011 Sudanese Civil Registry Act introduced a new civil registration procedure which requires registration of all residents and citizens of Sudan. The registration body is placed under the supervision of the Ministry of Interior, and registers important events such as birth and marriage. According to the Act all Sudanese nationals are issued with a national identity number.

16  According to the Complainants, a person needs to have a national identity number in order to apply for a university education. By the time Ms. Iman was trying to register for her university education she only had a birth certificate, which is not sufficient as she is also required to have a national identity number which she could get only through presentation of a nationality certificate. When Ms. Iman submitted her application for a nationality certificate, it is submitted that the Civil Registration Department directed her to the Alien Persons Department to register her name, indicating that she has lost her Sudanese nationality since her father would have become South Sudanese upon the separation of Sudan and South Sudan. This in turn, according to the Complainants, resulted in Ms. Iman’s loss of Sudanese nationality by application of Section 10 (3) of the Nationality Act (Amendment) 2011. The Complainants therefore submitted that apart from not being able to attend her university education such automatic loss of nationality left Ms. Iman Hassan Benjamin to be stateless.

17  In view of the above, the Complainants submitted that the Republic of Sudan has violated provisions of the African Children’s Charter, specifically article 3 (The right not to be discriminated); article 4 (The protection of the best interest of the Child); article 6 (3) the right to acquire a nationality) and article 6 (4) the obligation to prevent statelessness recognised under the African Charter on the Rights and Welfare of the Child. Moreover, the Complainants also argued that the acts of the Respondent State consequentially violated the protections under the African Charter on Human and Peoples’ Rights particularly, the right to equal protection of the law (Article 3 (2)), right to dignity and legal status (article 5), right to have cause heard (Article 7), right to education (article 11) and protection of the family (article 18(1)).

The Committee’s analysis on the allegations

23. After deliberation on the facts in the communications, the Committee bases its Decision on the following issues:

i.        Whether the Respondent State violated its obligations under the African Children’s Charter as it relates to Article 3 on non-discrimination;

ii.        Whether the Respondent State violated the right to acquire a nationality and prevention of statelessness as protected under article 6 (3) and article 6 (4) of the African Children’s Charter;

iii.      Whether the Government the Republic of Sudan is responsible for the alleged consequential violations under the African Charter on Human and Peoples’ Rights in relation the right to equal protection of the law (Article 3 (2)), right to dignity and legal status (article 5), right to have cause heard (Article 7), right to education (article 11) and protection of the family (article 18 (1)).

I. Alleged violations of article 3 of the African Children’s Charter on non­discrimination

24. The Committee takes note of the fact that in August 2011 the Republic of Sudan has adopted an amendment law to its 1994 Nationality Act. The Committee notes that following the separation of South Sudan from the Republic of Sudan, the formation of the new State, which is now called the Republic of South Sudan, and the amendment of the 1994 Sudanese Nationality Act resulted in challenges on the determination and withdrawal of the nationality of children and the prevention of statelessness of children, especially for those who were born to Sudanese mothers and South Sudanese fathers. Section 10 (2) of the 2011 Amendment Law states that ‘Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan’. Section 10 (3) of the Amendment Act further prescribes that without prejudice to Section 15, Sudanese nationality shall be revoked where the Sudanese nationality of his responsible father is revoked. The 2011 Amendments further prohibit dual nationality with South Sudan despite the fact that dual nationality with any other country is permitted in the Sudan since 1994.

25. The Committee also notes that in prescribing the modes of acquisition of nationality, Section 4 of the 1994 recognises acquisition of Sudanese nationality by birth. Looking at the provisions, the Committee notes that Sudanese nationality can be acquired by birth either automatically or by application. Section 4 (1) of the 1994 Nationality Act provides the conditions which must be satisfied for a person to be Sudanese by birth. Section 4 (1) reads:

In respect of persons born before the coming into force of this Act, a person shall be Sudanese by birth if he satisfies the following conditions:

(a)  if he has already acquired Sudanese nationality by birth;

(b)  (i) if he was born in Sudan or his father was born in Sudan;

(11) if he is residing in Sudan at the coming into force of this Act and he and his ancestors from the father’s side were residing in Sudan since 1/1/1956.

(c) if neither the person nor his father were born in Sudan, he may, if he satisfies the requirements of para. (b)(ii), apply to the Minister to grant him Sudanese Nationality by birth.

26. With regard to a person born to Sudanese mother, who is Sudanese by birth, the law states that nationality by birth can be acquired only through application, and not automatic. Section 4 (3) states that ‘a person born to a mother who is Sudanese by birth shall be entitled to Sudanese Nationality by birth whenever he applies for it’.

27. Furthermore, the Committee notes that as part of its definitions of terminology, the 1994 Nationality Act states that "Responsible Father" means the father or the mother if guardianship was transferred to her by order of a competent court or if the child was born as a result of an unlawful relationship.

1.  .lt is based on these facts that the Complainants allege that the Sudanese nationality law discriminates on the ground of sex and country of origin in granting nationality at birth and deprives nationality on the basis of ethnical origin of the responsible father.

29. However, the Respondent State denies such allegations. The Respondent State submits that since the amendments made to the 1994 Sudanese Nationality Act 1994 in 2005, a child is entitled to acquire Sudanese nationality on the basis of his/her Sudanese mother, on an equal footing with Sudanese father. Regarding, the contents of Section 10 (2) of the Nationality Act, the Respondent States submits that the provision is the outcome of political and legal arrangements following the secession of South Sudan and evolution of a new sovereign and independent State. Such arrangements have been negotiated and agreed upon by the two countries in the Comprehensive Peace Agreement (CPA). The Respondent State argues that ‘the wording of the said section does not provide that the Sudanese nationality shall be revoked in relation to a person whose ethnic origin is so or so, rather in relation to a person who, de jure or de facto, acquires the nationality of a region which had become a sovereign and independent State’. It is the opinion and submission of the Respondent State that Section 10 (2) of the Nationality Act (Amendment) specifically mentions the State of South Sudan on the premise that it was the State meant by the transitional provisions of the law entailed by the arrangements resulting from secession. Hence, the Respondent State argues that the law does not have any discriminatory purposes.

30. The Committee notes that as a Party to the African Children’s Charter, the Government of the Respondent State is legally bound to comply with the requirement of non-discrimination as it is prescribed under article 3 of the African

Children’s Charter. Article 3 of the African Children’s Charter states that ‘every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status’.

31. Taking into consideration Sudan’s responsibility under the African Children’s Charter, the Committee is of the view that determining whether the Republic of Sudan violated article 3 of the African Children’s Charter requires a legal and conceptual analysis on the relationship between the right to non-discrimination and the right to acquire a nationality of a child.

32. From the onset, the Committee notes that the right to non-discrimination prescribed under article 3 is a non-derogable right as it does not allow trade-off decisions and practices. This entails that, the protection provided in the provision does not allow a State to deprive the child’s right because of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status. The Committee takes the view that, if the drafters of the Charter had the intention of making the application of article 3 context-dependent, the article would have contained balancing elements in order to allow a State to engage in discriminatory practices subject to some sort of a balancing test.[1]Article 3 is therefore a general nondiscrimination clause which applies to all substantive rights enshrined in the African Children’s Charter including Article 6, which provides protection for the right to nationality of the child.

33. The link between prohibition of discrimination and the right to nationality emanates from the very meaning and benefit of nationality. In defining what ‘nationality’ is, the Committee aligns itself with the International Court of Justice where it defines nationality as ‘a legal bond having its basis a social fact of attachment, a genuine connection of existence, interests and sentiments’.[2] Many countries require the existence of such legal bond in order to allow individuals in general and children in particular claim and fully exercise their rights as they are guaranteed in various human rights instruments. Contrary to their obligations under international and regional laws, states sometimes fail to confer nationality to children who have the required social fact of attachment, a genuine connection of existence, interests and sentiments in the states concerned. Such

lack of recognition is often based on arbitrary and discriminatory laws and motives such as exclusion of a particular race, ethnic origin and gender. The Committee notes that the existence of such discriminatory laws and practices in relation to nationality matters deprives the child’s legal existence in a particular state which then exclude the child from enjoying a full range of his/her rights which are linked with the conferral of nationality. Because a child is unduly- based on discriminatory laws and practices- denied or revoked his/her nationality, he /she may not have his/her birth registered,[3] be enrolled in schools or universities, have access to public health services, or obtain travel documents.[4]

34. Based on the above explanation the Committee approached the allegation from two angles

i.        Whether the nationality laws of the Republic of Sudan consist of

discriminatory provisions as it relates to acquisition of nationality; and

ii.       Whether the nationality laws of the Republic of Sudan consist of

discriminatory provisions as it relates to deprivation of nationality.

1.1. Alleged violation of article 3 as it relates to the prohibition of non­discrimination on the ground of sex of a parent while transferring nationality to a child

35. The Committee recognises the fact that matters of nationality, particularly acquisition of nationality, falls under the domain of individual states, based on the principle of sovereignty and equality of states in international law.[5] However, the Committee also recognises the instances where international law can feature into the domestic jurisdiction of states in matters of attribution of nationality. At the current stage of the development of international human rights law, the authority of States on matters of nationality is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law

and, on the other hand, by their obligation to prevent, avoid and reduce statelessness.

36 . In line with the current international and regional human rights instruments, the ACERWC has called on States to uphold the principle of non-discrimination as provided in article 3 of the Charter and specified that all criteria established by States relating to acquisition of nationality by children must not distinguish on the basis of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.[6] The Committee further recommended that African States with discriminatory legal provisions on any of the mentioned grounds should review such provisions and replace them with non-discriminatory provisions.[7]

37 .The Committee would also align itself with the Decision of the Inter American Court of Human Rights regarding the right to nationality, where it noted that ‘the jus cogens principle of equal and effective protection of the law and non­discrimination requires States, when regulating the mechanisms for granting nationality, to abstain from establishing discriminatory regulations or regulations that have discriminatory effects on different groups of a population when they exercise their rights. In addition, States must combat discriminatory practices at all their levels, especially in public entities...’[8]

38 .The prohibition of discrimination on the basis of gender including in transfer/conferral of nationality is one of the non-discrimination standards that puts limits on states under international and regional human rights instruments. The Committee particularly recognises article 9 (2) of CEDAW which states that ‘State Parties shall grant women equal rights with men with respect to the nationality of their children.[9] In line with the current trend in international and regional human rights instruments on prohibition of gender discrimination in transfer of nationality, the Committee also aligns itself with the position of the ruling of the High Court of Botswana in the Unity Dow case where the Court highlighted how a range of rights of both the woman and her child can be

undermined when a woman holds a nationality but cannot transmit it to her child.[10]

39.  Coming to the issue at hand, the Committee notes that the effective nationality law of Sudan, through which Ms Iman can obtain a nationality, is the Sudanese Nationality Act of 1994 as amended in 2005 and in 2011. Section 4 of the 1994 Act provides how Sudanese is acquired by birth.

40.  From Section 4 of the Nationality Act, it is possible to deduce that the law provides automatic conferral of Sudanese nationality by birth on children born to Sudanese fathers as opposed to children born to a Sudanese mother as they are required to submit application to the competent authorities to obtain Sudanese nationality by birth. Unlike children born to a Sudanese father, children born to a Sudanese mother have to go through administrative process to be considered as Sudanese national by birth. The law treats differently these groups of children on the basis of the gender of their parents. In this regard, Article 3 of the African Children’s Charter is clear in that it lists the child’s or his/her parents’ gender as a prohibited ground of discrimination. This law requires Ms Iman, born to a Sudanese mother, to apply for a Sudanese Nationality as opposed to other children who are born to Sudanese Fathers. This violates Ms Iman’s right not to be discriminated based on the gender of her mother in obtaining her nationality.

41.  The Committee notes that the Section 4 of the 1994 Act that requires a child of a Sudanese mother to apply for nationality (as opposed to automatic conferral of nationality by operation of the law for child of a Sudanese father) contradicts the provisions of the African Children’s Charter and other international norms. Hence, the Committee finds the Respondent State in violation of Article 3 of the African Charter on the Right and Welfare of the Child as it discriminates against children born to a Sudanese mother in general and Ms. Iman in particular on the basis of gender.

1.  2. Alleged violation of article 3 on prohibition of non-discrimination on the grounds of country of origin of parents as it relates to arbitrary deprivation of nationality

42.  The Committee recognises the principle of international law which prohibits an arbitrary deprivation of nationality to be another limit to the sovereignty of states to decide the conferral, withdrawal and regulation of nationality. In particular, the

Committee aligns itself with Article 15 of the UDHR which prescribes that ‘everyone has the right to a nationality and the no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’.[11] The question which needs elaboration is therefore ‘what does an arbitrary deprivation of nationality constitute?’

43. In explaining the elements of ‘arbitrariness’ the Committee draws inspiration from the approach adopted by the UN Human Rights Committee. The Human Rights Committee, in explaining the elements of an ‘an arbitrary interference of states on the enjoyment of one’s human rights’, depicts that an interference would amount to arbitrary if it is incompatible with the provisions, aims and objectives of human rights, and not reasonable in particular circumstances.[12]

44. The Committee notes that the right to non-discrimination forms part of the main principle of all human rights instruments in general and the African Children’s Charter in particular. Hence, on matters of nationality, the Committee notes that depriving one’s nationality on the basis of one or more of the prohibited grounds of discrimination, such as national origin, race and ethnicity would amount to an arbitrary deprivation of nationality, which is prohibited under article 3 of the African Children’s Charter and other international instruments.

45. In line with the above approach, the Inter-American Court of Human Right in the Case of the Girls Yean and Bosico V. Republic of Dominican noted that ‘[t]he State’s failure to grant nationality for discriminatory reasons constitute an arbitrary deprivation of nationality and violates the right to nationality guaranteed by the American Convention’.[13]

46. In the Communication at hand, the Complainants submitted that the 2011 amendments provided for the automatic revocation of Sudanese nationality from persons who, de facto or de jure, acquired South Sudanese nationality. Section 10 of the 1994 Nationality Act as amended in 2011 reads:

(2)  Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.

(3)  Without prejudice to Section 15, Sudanese nationality shall be revoked where the Sudanese nationality of his responsible father is revoked in accordance to section 10(2) of this Act.

47. The Committee notes the above provision does not allow children to hold dual nationality with South Sudan, despite dual nationality with any other country has been permitted since 1994, hence, the Complainants submitted that the Respondent State’s law discriminates children on the basis of their origin of nationality. The Complainants also indicated that Ms. Iman attempted to apply for Sudanese nationality in November 2016, considering her right to acquire Sudanese nationality through her mother, however, the authorities refused to receive her application documents citing orders from the Minister of Interior. On this basis, the complainants argued that the Respondent State has discriminated against Ms. Iman in particular and children with South Sudanese links in general.

48. Considering the Complainants’ allegation, the Committee notes that the general principle regarding the status of Sudanese nationality of children in cases of is provided under Section 15 of the 1994 Sudanese Nationality Act, which reads:

If Sudanese nationality is revoked from the responsible father of a minor under the provisions of section 10 the minor shall not lose his Sudanese nationality save if he is or was the national of any country other than Sudan according to the laws of that country.

49. As it can be understood from Section 15 of the Respondent State’s Nationality Act, in principle revocation of Sudanese nationality of a parent does not result in revocation of Sudanese nationality of the child. Revocation of Sudanese nationality happens only if it is proved that the child is or was the national of any country other than Sudan according to the laws of that country. However, under the Respondent State’s nationality law, the case of children born to South Sudanese parents is treated separately under Section 10 of Sudanese Nationality Act (Amendment) 2011. Hence, the Committee notes that Section 15 of the 1994 Sudanese Nationality Act is not applicable to children born to South Sudanese parents or children of South Sudanese Father and Sudanese mother. By application of Section 10(3) of the Sudanese Nationality Act (Amendment) 2011, revocation of Sudanese nationality of South Sudanese responsible father results in automatic revocation of Sudanese nationality of his child. This entails, unlike other children in the Respondent State, children born to South Sudanese parents lose their Sudanese nationality on the basis that their responsible father lost their Sudanese nationality. It also entails that children born to South

Sudanese parents or children born to South Sudanese father and Sudanese mother do not get equal protection of the law in the Respondent State owing to discriminatory nationality law which revokes their Sudanese nationality on the ground of revocation of Sudanese nationality of their parents which is not the case for other children.

50. Due to the application of the Nationality Act, Ms Iman could not obtain Sudanese nationality as she is born to a South Sudanese father. The Respondent State hence automatically believed that Ms Iman has a South Sudanese Nationality and revoked her Sudanese nationality which she is entitled to on the basis of the nationality of her Mother. Ms Iman is deprived of Sudanese Nationality on the basis of the country of origin of her father.

51. Responding to the Complainants allegation, the Respondent State argued that its provisions on nationality, in particular on deprivation of nationality, do not aim to discriminate children of South Sudanese origin. Instead, the Respondent State submits, the provisions are very similar to the legislation in South Sudan and that the Republic of the Sudan is doing the same to South Sudanese nationals that the Government of South Sudan is treating Sudanese nationals with. The Committee does not find the Respondent State’s argument tenable. This argument appears to suggest that because state Y is violating its child rights obligations in relation to children that are nationals of X, then State X can also do the same in relation to children that are nationals of State Y. This approach would be acceptable in some areas of laws in relation to bilateral treaties on trade, intellectual property, technology transfer etc; on matters that are outside of human rights, where the recognition of the right to retaliation can be justified under international law. However, in relation to human rights obligations, children’s rights included, the Committee is of the view that, the responsibility of States is not dependent on the principle of reciprocity. As a result, the Committee does not subscribe to the argument of the Respondent State.

52. It is the view of the Committee that such differential treatment of Children born to South Sudanese fathers, including Ms Iman, from the rest of children in the Respondent State, is not in line with the very object and purpose of the African Children’s Charter as it is prescribed under article 3 of the Charter, which the Committee considers as one of the cardinal principles of the Charter. In this regard, the Committee takes the view that Section 10 (2) & (3) of the 1994 Nationality Act as amended in 2011 arbitrarily deprives children a Sudanese nationality based on the country of origin of their parents. Pursuant to the above, determination to withdraw Sudanese nationality from children born to South

Sudanese father is made on the basis of the parent’s national origin which is listed as one of the prohibited grounds of discrimination under Article 3 of the Children’s Charter. Article 3 of the African Children’s Charter prohibits discrimination on the expressly provided grounds, including on the basis of the status of the child's parents.

53. Hence, the Committee concludes that the Republic of the Sudan has violated its obligation under article 3 of the African Children’s Charter, by introducing a legislation which arbitrarily deprives children of South Sudanese origin their Sudanese nationality on the basis of the national origin of their parents. The Respondent State, due to its discriminatory law, has violated Ms Iman’s right not to be discriminated on the ground of the country of origin of her father and as a result has arbitrarily deprived her Sudanese Nationality which otherwise she would have been entitled to.

II. Alleged violation of Article 6(3) & (4) as it relates to the right to acquire a nationality & prevention of statelessness

54. As stated above, the Committee recognises that the right to nationality of the child plays a central importance for the recognition and respect for other rights of the child. In duly recognising the importance of the right to nationality of the child, the African Children’s Charter, under article 6, expressly protects the right to acquire nationality of the child. Specifically, article 6(3) of the Charter provides that ‘Every child has the right to acquire a nationality.’ Therefore, it is unquestionable that State Parties to the Charter are obliged to respect the right to acquire nationality of children who are born and live in their jurisdiction. The Committee also recognises article 7 of the UNCRC and article 24 (3) of the ICCPR which unequivocally ensure every child’s right to acquire a nationality.

55. The Committee believes that questions such as, ‘when does the right to acquire a nationality of the child has to be implemented’; ‘which nationality a child may have a right to?’, ‘which State has the obligation to grant it?’ should be elaborated to address the matter at hand. Hence the Committee would like to elaborate on the issues by making reference to and drawing inspiration from other norms, jurisprudence and soft laws.

56. Looking at the rights guaranteed under the Children’s Charter, it is obvious that the Charter contains a group of rights that are enjoyed by the child from the time of his/her birth and other group of rights that are not necessarily exercised or enjoyed by the child from the time of his/her birth as a matter of practicality.

Regarding the right to acquire nationality, the ACERWC, in the Case of Children of Nubian Descent in Kenya v. the Republic of Kenya noted that: ‘Article 6(3) does not explicitly read, unlike the right to a name in Article 6(1), that “every child has the right from his birth to acquire a nationality”. It only says that “every child has the right to acquire a nationality”. Nonetheless, a purposive reading and interpretation of the relevant provision strongly suggests that, as much as possible, children should have a nationality beginning from birth. This interpretation is also in tandem with Article 4 of the African Children’s Charter that requires “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”.[14]

57. Despite this accepted approach under international law, the Committee notes that, some States make findings that a child is of “undetermined nationality”. However, in situations where the child’s nationality is undetermined and when the child finds herself/himself otherwise be stateless, countries should, as soon as possible, determine her/his nationality so as not to prolong a child’s status of undetermined nationality. As the Committee in the Nubian Descent case stated “a year in the life of a child is almost six percent of his or her childhood... the implementation and realization of children’s rights in Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.”[15]

58. Furthermore, as per Article 2 of the African Children’s Charter, a child is a person below the age of 18.

59. In view of the above, the Committee also aligns itself with the Human Rights Committee where it states that ‘[s]tates are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born.’[16] Moreover, the Committee also makes reference to the requirement of article 6(2) of the African Children’s Charter, article 7(1) of the LINCRC and article 24 (2) which require children to be registered immediately after birth, which implies that States are obliged to facilitate early conferral of nationality to children.

60. On the issue of obligations of State Parties, the African Children’s Charter, as in the case with the UNCRC, requires states parties to “undertake to ensure that their Constitutional legislation recognises the principles according to which a

child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.”[17]As per the above provision of the Charter, the State where the child is born in is the primary bearer of the obligation to grant nationality to the child, particularly in a situation where the child becomes otherwise stateless.

61. In determining the Respondent State’s obligation to grant nationality to a child who would otherwise be stateless, the Committee would like to refers to Articles 1-4 of the 1961 Convention on Reduction of Statelessness (the 1961 Convention). The Committee recognises that article 1 of the 1961 Convention provides safeguarding principle which serve as the basis for the mechanisms that States should take to prevent statelessness among children. Article 1 gives a child who would otherwise be stateless the right to acquire the nationality of his or her State of birth through one of two means. A State may grant its nationality automatically, by operation of law to children born in its territory who would otherwise be stateless. Alternatively, a State may grant nationality to such individuals later upon application.

62. The Committee notes that while the obligation of granting nationality falls primarily on the State of birth of a child, it recognises other States with which a child has a relevant link are also under obligations to ensure that the child has acquired a nationality. Such relevant links could be established by looking at various factors but particularly through parentage or residence.

63. The Committee recognises the legal protections that specifically address nationality and state succession in Article 10(1) of the 1961 Statelessness Convention which requires any treaty contracted between States concerning the transfer of territory to include specific provisions addressing the nationality of the citizens of the territory at issue. In the absence of such provisions, a State is required to confer its nationality on residents of the transferred territory if they would otherwise become stateless.

64. The ACERWC would also like to recognize the most relevant document from International Law Commission(ILC) on Nationality of Natural Persons in Relation to the Succession of States. In addressing the issue of attribution of nationality, Part II of the ILC’s Articles on Nationality prescribes elements for the purposes

of attribution of nationality; accordingly, the Articles list, i) habitual residence, ii) appropriate legal connection with one of the constituent units of the predecessor State, or iii) birth in the territory. In cases of absence of any of these criteria, the ILC further introduced a saving criterion of ‘any other appropriate connection’.

65. The Committee notes that in cases where state succession happens, there is no way persons who had the nationality of the predecessor state should suddenly be left without any nationality. It is also the Committee’s position that the process of acquisition of nationality in cases of state succession has to comply with human rights obligations including the prevention of statelessness.

66. In the current communication, the Authors claim that the Respondent State has violated article 6(3) & (4) of the African Children’s Charter. They indicated that the Respondent State’s legislation is not in line with the above stated provisions of the Charter due to the fact that the Republic of the Sudan has not introduced an implementing guidelines to the 1994 Nationality Act which left Sudanese authorities with the discretion to determine whether or not to withdraw Sudanese nationality without procedural safeguards that ensure an individual has acquired South Sudanese nationality. The Complainants submitted that the Government has just relied on the definition of South Sudanese nationals under the Referendum Act to argue that a person has acquired South Sudanese nationality.

67. According to the Complainants, the challenges that Ms Iman Benjamin has faced can clearly demonstrate the above alleged violations. It is submitted that Sudanese nationality of Ms. Iman Hassan Benjamin’s has been revoked on the ground that the Sudanese nationality of her father has been revoked because of his entitlement to South Sudanese nationality. This indicates, according to the Complainants, that the Respondent State failed to prevent Ms Iman Benjamin from being statelessness by depriving her Sudanese nationality given the fact that she did not obtain South Sudanese or any other states’ nationality.

68. Moreover, the Complainants submitted that the internal administrative procedures of Sudan failed in ensuring that Ms Iman obtains a national ID.,

69. Replying to the Complainants allegation, the Respondent State submitted that the allegations are groundless. It is the view of the Respondent State that the 1994 Nationality Act together with the Interim Sudanese Constitution is very clear in determining to whom Sudanese nationality should be granted or withdrawn from. According to the Respondent State, a person who acquires South Sudanese nationality is onewho fulfilled the conditions to vote in the Referendum on self-determination of South Sudan in accordance with sections 25 and 26 of South Sudan Referendum Act of 2009. Therefore, it is the view of the Respondent State that there is no ambiguity or vagueness affecting the 1994 Nationality Act in respect with identifying a person who, de jure or de facto, acquires the nationality of South Sudan. Particularly, the Respondent State argued that the constitutional right to citizenship, as it is prescribed under article 7 of the 2005 Interim Constitution, each person born of Sudanese father or mother has the right to enjoy Sudanese citizenship. Besides, the Interim Constitution states that it is also valid to permit any Sudanese to acquire the nationality of another country in accordance with the provisions of the applicable law, and this, as per the Respondent State, is consistent with the international principle of dual nationality.

70. With regard to children, the Respondent State particularly submitted that according article 15 of the 1994 Nationality Act states that ‘if Sudanese nationality is revoked from the responsible father of a minor under the provisions of section 10, the minor shall not lose his Sudanese nationality save if he is or was the national of any country other than Sudan according to the laws of that country’. Article 4(3) of the 1994 Nationality Act increases this restriction in paragraph 3 of the article, which states that ‘a person born to a mother who is Sudanese by birth shall be entitled to Sudanese Nationality by birth whenever he applies for it’. Hence it is the view of the Respondent State that Sudanese Nationality Laws are in line with the requirements of the African Children’s Charter, and other international instruments as they provide mechanisms to prevent childhood statelessness. In fact, the Respondent State submitted that the Republic of the Sudan decided to amend the 1994 Nationality Act to recognize and address the effects of the secession of South Sudan and the resulting statelessness.

71. With regard to Ms Iman, the Respondent State submitted that the Republic of the Sudan has not violated Ms Iman Benjamin’s right to acquire a nationality, as alleged by the Complainants. The Respondent State presented two different arguments to prove that Ms Iman is not stateless. On the one hand, the Respondent State submitted that Ms Iman Benjamin is entitled to Sudanese nationality through application as she was born to a Sudanese mother in accordance with article 4(3) of the 1994 Nationality Act. She is not considered as Sudanese due to her failure to exhaustively pursue the required administrative procedures which are available at different levels in the Republic of the Sudan.

The Respondent State indeed admitted that there has been a misapplication of the law which has resulted in the current communication before the Committee, proceeding. However, it was alluded by the Respondent State that Ms Iman is in a position of obtaining nationality through her mother.

72. On the other hand, the Respondent State, while presenting its oral arguments during the hearing, produced a travel document that was issued in 2012 by Republic of South Sudan Ministry of Interior Department of Immigration, which mentions that Ms Iman Benjamin is South Sudanese by nationality; hence it is the Respondent State’s submission that she is not stateless.

73. On the question of Ms Iman Benjamin’s ID, the Respondent State indicates that the constitutional court directed Iman to seek administrative means. The Ministry of Interior does not directly issue IDs. It is up to Ms Iman to seek the legal process; the Government of the Republic of the Sudan will then provide her an ID as soon as possible depending on the procedure of issuing ID card.

74. Replying to the Respondent State’s submissions, the Complainants also presented their disagreement with the Republic of the Sudan’s analysis of the issues.

75. Considering the arguments from both sides, the Committee identifies and analyses the issues as descried below.

76. As stated above, the Committee notes that the father of Ms Iman Benjamin died on 29 January 2011 before secession of South Sudan and amendments to Sudan’s nationality law were adopted. Section 10(3) of the Nationality Act (amendments) of 2011 provides that Sudanese nationality shall be revoked where the Sudanese nationality of the responsible father is revoked because of entitlement to South Sudanese nationality.[18]

77. Applying Section 10 (3) of Nationality Act requires at least to identify whether the child has responsible father or not and determine whether such father is entitled to South Sudanese nationality or not. As a matter of fact, a deceased father cannot be considered to be a ‘responsible father’ as he cannot be responsible

for the child’s long-term or day-to-day care, welfare and development. Hence, slman did not have a responsible father at the time of revocation of her Sudanese nationality. Rather, it was the mother of the complainant who was discharging her parental responsibility. It has not been contested that the mother of Ms Iman has a Sudanese nationality; and her Sudanese nationality has not been revoked. From this, it follows that her Sudanese nationality should not have been revoked since Iman’s responsible parent (the complainant’s mother) has not been affected by Section 10 (2) of the Nationality Act (Amendment) 2011. Furthermore, it cannot be said that her father is entitled to South Sudanese nationality de Jure or de facto since at the time of his death there was no concept of South Sudanese nationality and the conferral of the South Sudanese nationality Started after secession of South Sudan which happened after the death of Ms Iman’s father. Moreover, as it has been recorded on his death certificate Iman’s father was a Sudanese national and a resident of al- Hasaheesa.[19] As aforementioned, amendment of nationality law of the Respondent State took place at least six months after death of the Iman’s father. Retroactive application of Section 10(2) of the Nationality Act (Amendment) has not been provided in the text of the amendments or elsewhere in the nationality law of the Respondent State. Given such circumstance, it is the Committee’s view that revocation of Sudanese nationality of Ms Iman Benjamin on the ground that the nationality of the deceased father has been revoked is ill-founded and absurd.

78. In the presence of the above facts, revocation of Sudanese nationality of Ms. Iman Hassan Benjamin’s amounts to arbitrary deprivation of nationality. In the Case of Children of Nubian Descent V. the Republic of Kenya, this Committee noted that ‘States Parties need to make sure that all necessary measures are taken to prevent the child from having no nationality.’[20] In the Case Modise v. Botswana, the African Commission on Human and Peoples’ Right held that failure or refusal of States to grant nationality on grounds that individuals had obtained another nationality or had accepted it without showing any proof is a violation of the right to nationality which is basic component of the right to recognition of legal status guaranteed under Article 5 of the African Charter on Human and Peoples’ Right.[21]

79. The Committee also notes that Ms Iman Benjamin may be entitled to South Sudanese nationality but she is not pursing it. The facts in the Communication clearly entail that she is entitled to Sudanese nationality and she has been pursing it with no success. Hence, it is the view of the Committee that Ms Iman Benjamin has become stateless as she is not formally recognized as a national of neither South Sudan nor Sudan.

80. Moreover, the Committee notes that international law allows and recognizes some of the rules upon which loss/deprivation/ withdrawal of nationality can take place. Any loss/deprivation/withdrawal of nationality will need to comply with primarily three criteria- it should be aimed at achieving a legitimate purpose; it should take the least intrusive method; and finally it has to be proportional to the right or interest that it aims to protect. In line with this approach, the African Court on Human and Peoples’ Right noted that ‘International Law does not allow, save under very exceptional situations, the loss of nationality.[22] The said conditions are: i) they must be founded on clear legal basis; ii) must serve a legitimate purpose that conforms with International Law; iii) must be proportionate to the interest protected; iv) must install procedural guaranties which must be respected, allowing the concerned to defend himself before an independent body.’[23] As a result, the Committee is of the view that the application of Section 10(3) leaves a child to be stateless, even if it is for a limited period of time; hence it is not complying with the provisions of the African Children’s Charter as they are stated in Article 6(3) & (4).

81. In the particular case, in a situation whereby Ms Iman would effectively be rendered stateless, it would be difficult, if not impossible, to argue that Article 10(3) is proportional to the interest that the legislation is aimed to protect. The Committee does not find the measure taken by the Respondent State in automatically changing nationality requirements without giving due regard to the impact it is having on individuals, to the effect that people like Ms Iman can also be at the risk of statelessness, proportional to the interest of the state it is trying to keep. Even if the nationality of the responsible parent is revoked, that cannot justify revocation of nationality of the child. In this regard, the Committee in its General Comment explicated that ‘where a parent loses or is deprived of nationality, that loss or deprivation should not affect the child and in no case, may a child lose or deprived of his or her nationality if he or she would be left stateless.’[24]

82. Also, there are no implementing regulations for the 2011 Nationality Act amendments or the Civil Registration Act 2011.There should have been regulation that instructs civil servants on how to determine whether Sudanese nationality of someone should be revoked or not. The protection against statelessness for children provided by section 15 of the 1994 Nationality Act is not effective, because the law does not establish any requirement that nationality of South Sudan has in fact been acquired before Sudanese nationality is automatically revoked, including for a child. In the absence of such regulation, the Sudanese authorities decide for themselves whether person has acquired South Sudanese nationality or not without taking in to consideration the fact that the person has managed to acquire South Sudanese nationality or is really entitled to South Sudanese nationality.

83. During the hearing, the Respondent State argued that it is not obliged to grant nationality to Ms Iman as she is entitled to acquire a South Sudanese nationality. The issue which needs clarification in this regard would then be ‘when does a country must accept that a person is not a national of a particular State, hence he/she is stateless?’ In addressing this issue, the Committee makes reference to the explanation provided by UNHCR in its Guidelines on Statelessness No 4, where it states the ‘the country must accept that a person is stateless if the authorities of that State refuse to recognize that person as a national. A state can refuse to recognize a person as a national either by explicitly stating that he or she is not a national or by failing to respond to inquiries to confirm an individual as a national’.[25] The Committee notes that the Respondent State should have established an adequate procedural safeguard to ensure that no individual will deprived of their Sudanese nationality unless they have acquired South Sudanese nationality. The Committee was not informed whether Ms Iman has approached the Government of South Sudan and if the same government pronounced itself on the matter. However, it is the Committee’s view that a country cannot solely interpret and apply another country’s nationality laws as it relates to determination of someone’s nationality in the former’s territory. This could result in not only a factual error on the side of such country but also it goes against the general prerogatives given to states in determining who would be considered as a national in their own territory. Indeed, the Committee recognises the difficulty around determination of whether someone holds the nationality of another country. Looking at the practice in most legal systems, countries put the

initial responsibility of substantiating his or her claim on the claimant. However, the Committee believes that in cases where a child who claims to be at the risk of statelessness is requested to bear the sole responsibility to prove that the child does not hold a nationality of another country, it would put the child in a more precarious situation. In this regard, the Committee recognises the approach to a shared burden of proof between the claimant or his/her parents/guardians and the concerned government to obtain evidence and establish the facts. In cases where there is no sufficient evidence which support that the claimant holds another nationality, the country concerned should grant the child a nationality automatically without putting the child in a situation of prolonged statelessness.

84. The nationality Act of the Respondent State has also failed to put in place procedural guaranties which should be respected and allow persons whose nationality has been revoked to defend themselves before an independent body. Given the above facts, revocation of Ms Iman’s Sudanese nationality constitutes arbitrary deprivation of nationality which is in violation of Article 6 (3) & (4) of the Children’s Charter.

84.1.   Alleged violations against article 6 (3) and (4) as it relates to proof of nationality

85. Furthermore, in line with the Complainants allegation on violations of article 6 (3) and (4) of the Charter, the Committee considered matters related to proof of nationality and how that relates to acquisition of nationality and prevention of statelessness. In their submission, the Complainants submitted that acquisition of a Sudanese birth certificate does not proof nationality. Children are, therefore; left in an ambiguous situation. Children who are born to Sudanese mothers and South Sudanese fathers, in particular, are left in more ambiguous situation compared to others as they are left to grow up with the expectation that they are Sudanese nationals without confirmation. Their expectations of acquiring Sudanese nationality are further hindered upon reaching the age of 16 by application of the Nationality Act. Children born to Sudanese mothers and South Sudanese fathers have a more difficult task to prove their nationality through their Sudanese parent and their desire to retain Sudanese nationality. The complainants further submitted that determining and documenting citizenship at birth provides the best protection for children and there is no justification for leaving the determination of citizenship until age 16 for everyone, especially given the serious consequence for children of mixed, Sudanese-South

Sudanese, parentage who are at a risk of statelessness by virtue of the nationality law.

86. From the facts presented before the Committee, it is clear that acquisition of a Sudanese birth certificate does not confer Sudanese nationality. Sudanese nationality is proved by nationality certificate that can be obtained by applying to the relevant body. The Respondent State’s nationality law recognizes both nationality by birth as well as nationality by naturalization.[26] Since issue of nationality by naturalization has not been raised under this communication, the Committee will not deal with this issue. Regarding nationality by birth, Section 4(2) of the 1994 Sudanese Nationality Act provides that ‘A person born after the coming into force of this Act shall be Sudanese by birth if his father is Sudanese by birth at the time of his birth.’ Section 6 of the Respondent State’s Nationality Act provides that the Minister of Interior shall grant a certificate of nationality by birth to any Sudanese national by birth upon payment of the prescribed fees. The law does not provide specific age upon which nationality certificate can be obtained. In their submission, the Complainants indicated that Ms. Iman only possessed a birth certificate until she applied for nationality certificate and her application was rejected. The Complainants have not showed that documents proving nationality, such as nationality certificate, are not available for all children under the age of 16 owing to application of the Respondent State’s nationality law. As it can be seen from Section 27.1 of the Respondent State’s Civil Registration Act of 2011, age of 16 is provided as a precondition to obtain identity card which is not a proof of nationality.[27] Section 27.8 of the same Act provides that after obtaining the identity card and registration certificates, the citizenship certificate shall be cancelled and replaced with the identity card. From this provision, it can be deduced that citizenship certificate is issued before an identity card. If the law provides 16 as the age where someone is entitled to get identity card and obtaining identity card results in cancellation of citizenship certificate, it is logical to conclude that children who have not attained age of 16 could be entitled to obtain citizenship certificate under the Respondent State’s law.

87. In the Committee’s view, a mere fact that birth certificate does not prove nationality cannot leave children in an ambiguous situation. Children are left in

an ambiguous situation if states do not put in place a mechanism by which nationality can be proved or if children are obliged to wait for some time to utilize mechanisms put in place by states to prove their nationality. Although birth certificate does not prove nationality under the Respondent State’s nationality law, the law has provided possession of nationality certificate as a mechanism to prove Sudanese nationality. Hence, it is the view of the Committee that there is a procedure where nationality certificate can be obtained by children irrespective of their age as per Section 6 of the 1994 Sudanese Nationality Act, as the law contains no age restriction, and the Complainants did not adduce any evidence which refutes this fact.

88. The Committee, however; shares the concern of the Complainants in relation to children who are born to Sudanese mothers and South Sudanese fathers, as they are left to grow up with the expectation that they are Sudanese nationals without confirmation. The Committee also notes that children born to Sudanese mothers and South Sudanese fathers have difficult task to prove their nationality through their Sudanese mother and their desire to retain Sudanese nationality. However, considering the facts presented before it, the Committee is of the view that all these challenges faced by children born to South Sudanese father and Sudanese mother have nothing to do with acquiring documents to prove Sudanese nationality. Rather, these challenges resulted from Section 10(3) of Sudanese Nationality Act (Amendment) which introduced automatic revocation of Sudanese nationality of these children. As the facts submitted to the Committee indicate, Ms Iman was born on 5 September 1994 from Sudanese father and Sudanese mother after the 1994 Nationality Act came in to force. Consequently, as per Section 4(2) of the 1994 Sudanese Nationality Act, she is entitled to Sudanese nationality by birth. Had Section 10(3) of Nationality Act (Amendment) not come in to force in 2011, MS Iman’s Sudanese nationality would not have been revoked and she could have been provided with nationality certificate. Given this fact, it is not possible to conclude that children in Sudan have to wait until age of 16 to acquire a nationality or to obtain documents proving nationality. Denial of nationality of children born to a South Sudanese father and Sudanese mother cannot negate the general rule provided under Sudanese Nationality Act regarding acquisition of Sudanese nationality and documents proving nationality since issue of these children is a specific issue governed separately by special rule provided under Section 10(3) of Sudanese Nationality Act (Amendment) 2011.

89. Finally, the Committee also notes that the Respondent State, during the dialogue, submitted that Ms Iman is not stateless by producing a document issued as an Emergency Travel Document which stated that she is South Sudanese. Though the document was introduced only on the floor without an adequate amount of time for the Committee and the Complainants to review and respond to the contents and value of the document; the Committee notes that it would be important to reflect on its content and implications on proof of nationality. From the onset, the Committee recognises that an Emergency Travel Document could be considered as a prime facie recognition of nationality. In the current Communication, as far as the investigation of the Committee goes, the document was issued by the Nationality, Passports and Immigration (DNPI) of South Sudan in Khartoum for those who claim entitlement to South Sudan nationality but do not possess all required supporting/evidentiary documents to supplement their claims. The document is issued to them to enable them to respond to some protection needs, such as, collection of pensions, and using it to sit for secondary school exams. In this regard, it is the view of the Committee that the document is not a substitute to the nationality document and DNPI sometimes issued it to individuals whose applications for nationality in Khartoum is rejected to facilitate their travel to Juba to further follow up on their application in the DNPI Head Quarters in Juba. The disclaimer indicated in the document also highlights the very purpose why this document is issued; i.e., for mere emergency travel. Besides, the Committee notes that there is evidence that South Sudanese nationality is proven through a nationality certificate and not through an Emergency Travel Document. Hence, upon closer scrutiny, the Committee takes the view that the Emergency Travel Document should not be considered as proof of nationality.

III. Alleged Consequential Violations

90. In their submission to the Committee, the Complainants argued that Ms Iman’s arbitrary deprivation of Sudanese Nationality has consequentially violated her numerous human rights. The Complainants mainly argued that the arbitrary deprivation of nationality resulted in the violation of Ms Iman’s right enshrined in the African Charter on Human and Peoples’ Rights on the right to equal protection of the law, right to dignity and legal status, right to fair trial, right to education, and protection of the family. However, the Committee believes that it does not have the mandate to pronounce violations on other instruments apart from the African Children’s Charter in principle. The Committee is of the view that its mandate as it relates to other international and regional human rights instruments and jurisprudence is only to draw inspiration from such instruments and decisions as provided in article 46 of its founding Charter. Therefore, the Committee is not in a position to find the alleged consequential violations of rights of Ms Iman enshrined under African Charter on Human and Peoples’ Right (African Charter) as it has been claimed by the Complainants.

91. However, it is noted that in reference to Article 44 of the Children’s Charter, the Committee may receive communication relating to any matter covered by Children’s Charter. The Committee also notes that Section IX of the Revised Communication Guidelines requires the applicants to identify the provision of the African Children’s Charter allegedly violated only where possible. In the current communication, the Committee discerns that the Complainants based their argument of alleged consequential violations on provisions of African Charter. The Committee also notes that some of the alleged consequential violations of rights such as the right to education and protection of the family have been explicitly covered by the Children’s Charter. The Committee is of the view that though the Complainants did not mention the provisions of Children’s Charter dealing with the right to education and protection of the family, this should not hinder the Committee from addressing the alleged violation pursuant to the above provisions of the Charter and the Revised Guidelines. The Committee would like to underscore that material requirement of compatibility should not be understood to mean that a communication should allege a violation of the provision of the Charter; hence it would be for the best interest of the child to address all alleged violations of any of the protected rights under the African Children’s Charter. In this regard, the Committee believes that it would be for the best interest of the child to consider the allegations on consequential violations as they relate to the right to education and protection of the family.

i. Alleged Violation of the Right to Education (Article 11)

92. With regard to violation of the right to education of the Complainants submit that the revocation of the Complainant’s Sudanese nationality cost her, the opportunity to join university. Without proof of nationality, the Complainant could not have completed her university application and this hindered her access to higher education.

93. The Committee notes that the fact that Ms Iman’s nationality has been revoked has not been contested by the Respondent State. It also notes that having a national identity number is one of requirements to apply for a university education in the Respondent State and this number can be obtained only upon presentation of nationality certificate which the complainant was denied on the

ground that her Sudanese nationality has been revoked by application of the Respondent State’s Nationality Law.

94. In one of its report to UN Human Right Council, the UN Secretary-General Noted that ‘the Loss or deprivation of nationality renders the person concerned an alien with respect to their former State of nationality, causing them to forfeit the rights they held as nationals’.[28]

95. Similarly, this Committee noted in its General Comment on Article 6 of the Children’s Charter that children may have their rights restricted if they are not regarded as nationals, in particular in relation to their access to education, health care and other social services.[29] Therefore, it is unquestionable that a number of children’s rights may be violated as a result of child’s loss of nationality.

96. Article 11(1) of the ACRWC provides that ‘Every child shall have the right to an education’. The Committee would like to accentuate that the right to education should be understood to entail right to access to school/higher education institutions. With regard to higher education, Article 11(3) (C) further provides that State Parties are required to make the higher education accessible to all on the basis of capacity and ability by every appropriate means. In one of its general comments, Committee on Economic, Social and Cultural Right noted that ‘In realizing the right to education, the State must ensure, inter alia, the availability, accessibility and acceptability of the education provided to children. Availability is assessed in terms of quality; accessibility is determined in terms of equal opportunity, economic and physical accessibility and acceptability is inferred from the quality of education provided’.[30]

97. The African Commission on Human and Peoples’ Rights has also in its decision emphasised that the failure to provide access to institutions of learning would amount to a violation of the right to education under the African Charter on Human and Peoples’ Rights.[31]

98. As aforementioned, having a national identity number is one of the requirements to apply for a university education in the Respondent State and this number can

be obtained only upon presentation of nationality certificate which is provided only to Sudanese nationals and serves as proof of Sudanese nationality. This indicates that higher education can be accessed in the Respondent State only by Sudanese nationals. As facts presented before the Committee indicate, Ms Iman has been Sudanese national until her Sudanese nationality was revoked by application of Section 10(3) of Sudanese Nationality Act (amendment 2011). As safely concluded by the Committee elsewhere in this decision, the Respondent State arbitrarily deprived the Complainant’s nationality by introducing a legislation (mentioned above) which arbitrarily deprives children of South Sudanese origin their Sudanese Nationality based on the national origin of their parents. Had Sudanese nationality of Ms Iman not been revoked, she could have obtained nationality certificate and national identity number which is required to access higher education in the Respondent State. In other words, the Complainant was denied access to higher education as a result of arbitrary deprivation of her Sudanese nationality.

99. For the above reasons, the Committee concurs with submission of the Complainants and concludes that revocation of the Complainant’s Sudanese nationality cost her the opportunity to access higher education institution and the Complainants right to education guaranteed under Article 11 of the Children’s Charter has been consequentially violated as a result of arbitrary deprivation of the Complainants nationality.

ii. Alleged Violation of the Right to Protection of the Family

100.        Article 18(1) of the Children’s Charter provides that ‘The family shall be the natural unit and basis of society. It shall enjoy the protection and support of the State for its establishment and development’. Article 19(1) of the Children’s Charter further provides that ‘Every child shall be entitled to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents. No child shall be separated from his parents against his will, except when a judicial authority determines in accordance with the appropriate law, that such separation is in the best interest of the child’. Violation of the right to protection of the family at least presupposes, among others, existence of unlawful interference in family either by the state actors or non-state actors, dissolution of family because of interference of state or non­state actors, unjustified separation of child from his/her family without considering the best interest of the child and etc.

101.        With regard to the right to protection of the family, the complainants submitted that though Ms Iman has not faced deportation, she remains stateless and at risk of deportation. If deported, this would separate the Complainant from her mother, her only surviving parent and would deprive them from each other’s support.

102.        From submission of the Complainants, it can easily be understood that there is no actual violation (a violation which actually materialized). The Complainants are just arguing on conditional basis by anticipating separation of Ms Iman from her family. If it was a request for a provisional measure/intermediate decision, their submission would have made sense. From the facts presented before it, the Committee was able to discern only that there is risk of deportation of the Complainant which if materialized causes her separation from her family and that in turn actually violates her right to protection of the family. The Committee is of the view that risk of violation of certain right cannot be equated with the actual violation of the right and the Committee is mandated to find actual violation of children’s rights enshrined under the ACRWC as opposed to risk of violation of these rights. Although the Complainant has been arbitrarily deprived Sudanese nationality, her right to protection of the family has not been affected by loss of Sudanese nationality.

103.        Therefore, the Committee did not find the Respondent State in violation of Ms Iman’s right to protection of the family as alleged by the Complainants. For the above reasons, the Committee concludes that there was no consequential violation of Ms Iman’s right to protection of the family as a result of deprivation of her Sudanese nationality.

IV. Decision of the Committee

104.        For the forgoing reasons, the Committee finds that the Respondent State is in violation of its obligation under article 3 of the Charter on non-discrimination and article 6(3) and (4) of the Charter on right to nationality and prevention of statelessness as well as consequential violation of Article 11 on the right to education of the Children’s Charter. The Committee notes that the Complainants requested the Committee to recommend that that the Government of Sudan pay compensation to the Complainant and remedy her legal status. Regarding compensation, the Committee is of the view that no pronouncement is to be made on compensation on material damage on the ground that no specific request is made and no evidence showing actual damage is adduced before it.

105.         Regarding remedying the legal status of the Complainant, the Committee recommends to the Respondent State, in accordance with its obligation under the Children’s Charter, to take all necessary measures:

A.  To urgently grant nationality to Ms Iman as she has a Sudanese Mother and as she would otherwise be stateless. In this regard, the Committee also recommends that the Respondent State confers its nationality to children in its territory who are either stateless without taking prolonged procedure to prove their link with other State;

B.       To revise its Nationality Act with a view to:

i.         Ensure that children born to Sudanese mothers automatically obtain Sudanese nationality same as children born to Sudanese fathers;

ii.        Ensure that children born to South Sudanese parents are not discriminated against in obtaining Sudanese nationality where the child demonstrates clear link with the Respondent State;

iii.       Ensure that its nationality law does not leave children born in the territory of the Respondent State stateless and are provided with Sudanese Nationality without mere assumption that they have acquired South Sudanese Nationality;

iv.       Ensure that Sudanese nationality is not revoked from a child unless there is sufficient and admissible evidence that the child has acquired other nationality. In doing so, the proof of other nationality should be based on the laws on the acceptable proof of nationality of the State which is assumed to have conferred its nationality to that child; and

v.        Ensure that revocation of Sudanese nationality of child’s parent does not result in revocation of Sudanese nationality of the child. In particular, ensure that children born to South Sudanese parents or children born to South Sudanese father and Sudanese mother get equal protection of the law in this regard.

C. To adopt a law or regulation in line with acceptable international standards that regulate the manner in which Sudanese Nationality is revoked; and limit the discretion given to officials by providing factors needed to be considered in detail before effecting revocation of Sudanese nationality;

D. To ensure that there are procedural safeguards in determining, conferring, and revoking Sudanese Nationality. Such procedural safeguard should follow due process of law and the right of the child to fair trial, to be heard and participate in the process and also the right to challenge the decision of authorities in this regard in a court of law;

E.  To ensure that the grant of certificate of nationality is done in a legally prescribed timeline once application is submitted to obtain such document in order to avoid uncertainty in relation to entitlement of nationality and situation where statelessness is prolonged. Moreover, the Respondent State should ensure that its organs and officials respect the said timeline without making any discrimination on any ground whatsoever in granting certificate of nationality to children; and

F.  To ensure that children are not deprived of their basic rights in the Charter such as the right to education, health, birth registration, justice, and other basic necessities until their nationality is determined or even when they are found to be stateless or at the risk of being stateless.

Done at the 31st Ordinary Session of the ACERWC

Bamako, Mali

May 2018

Mrs Goitseone Nanikie Nkwe
Chairperson of the African Committee of Experts
on the Rights and Welfare of the Child

 

[1] A Bruce, A Commentary on the United Nations Convention on the Rights of the Child, Article 2 The Right to Non-Discrimination, 2008, Pp 35.

[2] Liechtenstein V Guatemala, The International Court of Justice, 1953, Pp 23.

[3] Though the Committee takes the position that according to article 6 (2) of the African Children’s Charter, State Parties are legally bound to register ALL children who are born on their territories regardless of their nationality.

[4] It is because of the high prevalence of discrimination in nationality laws that international and regional laws include specific prohibition of discriminatory laws and practices in nationality laws. In this regard, the Committee particularly refers to Article 6 (g) & (h) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, Article 26 of the ICCPR, Article 5 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, Article 2 of the 1989 Convention on the Rights of the Child (CRC) and Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination.

[5] Laura van Waas, Nationality Matters: Statelessness under International Law, 2008, Pp. 36.

[6] General comment No. 2 on article 6 of the African Charter, the African Committee of Experts on the Rights and Welfare of the Child, 2014, Para 94; and See also Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) V The Government of Kenya, 2011, Par 56.

[7] As above

[8] Expelled Dominicans and Haitians v. Dominican Republic, The Inter-American Commission, 2014, Par 264.

[9] The United Nations Convention on the Elimination of all Forms of Discrimination Against Women, Adopted by the Un General Assembly, 1979, Article 9 (2).

[10] Attorney General of Botswana case v Unity Dow, The High Court of Botswana, 1991.

[11] Universal Declaration of Human rights, Adopted by the United Nations General Assembly, 1948, Art 15.

[12] UN Human Rights Committee, General Comment No. 16: The Right to respect of privacy, family, home and correspondence, and protection of honor and reputation, article 17, Par 4.

[13] Inter-American Court of Human Right, Case of Girls Yean and Bosico V. Republic of Dominican, Judgment of September 8, 2005 Para 140.

[14] The African Charter on the Rights and Welfare of the Child, Adopted by OAU in 1999, article 4.

[15] Nubian Descent case (n 6 above) Par 33.

[16] General Comment No. 17 on Article 24 of the ICCPR, Human Rights Committee, 1989 Par 8.

[17] The African Children’s Charter (n 14 above), article 6(4)

[18] Section 10 (3) of the Nationality Act (Amendment) 2011 states that, ‘without prejudice to section 15, Sudanese nationality shall be revoked where the Sudanese nationality of his responsible father is revoked in accordance to section 10 (2) of this Act.

[19] The death certificate of the Complainant’s father, Annex 1, p. 4-5.

[20] ACERWC, Communication: No. Com/002/2009, Institute for Human Right an Development in Africa (IHRDA) and the Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v. Kenya para 52.

[21] African Commission, Modise v. Botswana Communication 97/93, ACHPR 2000, par 88-89.

[22] Anudo Ochieng Anudo V. United Republic of Tanzania, The AfCHPR (2018) para 79.

[23] As above

[24] General Comment (n 6 above), Par. 98.

[25] Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, UNHCR, (2012), Par. 19.

[26] See Section 4 and Section 7 of the 1994 Sudanese Nationality Act

[27] Section 27.1 of 2011 Sudanese Civil Registration Act provides that ‘Every Sudanese who reached the age of sixteen must obtain an identity card, from the office of the Civil Registry in which area of jurisdiction he lives, after payment of the prescribed fee. Identity cards may be issued for those who are less than that age, if necessary.

[28] See Report of UN Secretary-General to Human Right Council ‘ Human rights and arbitrary deprivation’, para 23. Available at http://www.refworld.org/pdfid/52f8d19a4.pdf (accessed on 29 June 2018).

[29] ACERWC’s General Comment on Article 6 of Children’s Charter, Para 85.

[30] Committee on Economic, Social and Cultural Rights, General Comment No. 13, Article 13: The Right to Education, 1999, para 6.

[31] Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93, para 11.

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Communication 2 of 2009
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African Committee of Experts on the Rights and Welfare of the Child
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22 MARCH 2011

Communication: No. Com/002/2009

AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD

INSTITUTE FOR HUMAN RIGHTS AND DEVELOPMENT IN AFRICA (IHRDA) AND OPEN SOCIETY JUSTICE INITIATIVE ON BEHALF OF CHILDREN OF NUBIAN

DESCENTIN KENYA

v.

THE GOVERNMENT OF KENYA

DECISION: No 002/Com/002/2009

Summary of Alleged Facts

  1. On 20 April 2009, the Secretariat of the African Committee of Experts on the Rights

and Welfare of the Child (African Committee) received a Communication brought by the Institute for Human Rights and Development in Africa based in the Gambia (and organization with an observer status before the African Committee) and the Open Society Initiative based in New York (the Complainants) on behalf of children of Nubian descent in Kenya.

  1. The Complainants allege that the Nubians in Kenya descended from the Nuba

mountains found in what is current day central Sudan and were forcibly conscripted into the colonial British army in the early 1900s when Sudan was under British rule. Upon demobilisation, allegedly, although they requested to be returned to Sudan, the colonial government at the time refused and forced them to remain in Kenya.

  1. The Complainants allege that the British colonial authorities allocated land for the

Nubians, including in the settlement known as Kibera, but did not grant them British citizenship. At Kenyan independence (1963), the Complainants argue, the citizenship[1]status of the Nubians was not directly addressed, and for a long period of time they were consistently treated by the government of Kenya as “aliens” since they, according to the Government, did not have any ancestral homeland within Kenya, and as a result could not be granted Kenyan nationality. The Complainants allege that the refusal by the Kenyan Government to recognise the Nubians’ claim to land is closely linked with the Government’s denial of Nubians to Kenyan citizenship.

  1. A major difficulty in making the right to nationality effective for Nubian children is

the fact that many Nubian descents in Kenya who are parents have difficulty in registering the birth of their children. For instance, the fact that many of these parents lack valid identity documents further complicates their efforts to register their children’s births. It is further alleged birth registration certificate in Kenya explicitly indicates that it is not proof of citizenship, thereby leaving registered children in an ambiguous situation contrary to Article 6 of the African Children’s Charter.

  1. In connection to this, the Communication further alleges that while children in

Kenya have no proof of their nationality, they have legitimate expectation that they will be recognised as nationals when they reach the age of 18. However, for children of Nubian descent in Kenya, since many persons of Nubian descent are not granted the ID cards that are essential to prove nationality, or only get them after a long delay, this uncertainty means that the future prospects of children of Nubian descent are severely limited and often leaves them stateless. The Complainants further allege that a vetting process that is applicable to children of Nubian decent is extremely arduous, unreasonable, and de facto discriminatory.

  1. The Complainants allege and attempt to substantiate that the facts submitted by

them are supported by reports from the United Nations bodies, non-governmental organizations, independent researchers, academicians, and adults and children of Nubian descent living in Kenya.

The Complaint

  1. The Complainants allege violation of mainly Article 6, in particular sub-articles (2),
  1. and (4) (the right to have a birth registration, and to acquire a nationality at birth), Article 3 (prohibition on unlawful/unfair discrimination) and as a result of these two alleged violations, a list of “consequential violations” including Article 11(3) (equal access to education) and Article 14 (equal access to health care).

Procedure

  1. The Communication was received by the Secretariat of the African Committee on 20 April 2009. After some effort to follow up with the Complainants, and the Respondent State, during its 15th session, the Committee declared the Communication admissible as per Decision number 01/Com/002/2009 dated March 16, 2010.
  2. A note verbal (reference DSA/ACE/64/1000.10 dated 13 July 2010) was addressed

to the Respondent State to present its written argument on the merits of the Communication to allow the Committee consider the Communication, but no response was received.

  1. The Committee deferred the consideration of the Communication for its next ordinary session.
  2. Another note verbal (reference DSA/ACE/64/256.11 dated 22 February 2011) was again sent again to invite the Respondent State to come and present its argument during the African Committee’s 17th ordinary session, but again no response was received.
  3. At its 17th Ordinary Session held in March 2011, the African Committee reasoned that children’s best interests demanded that it consider the Communication, and decided to be seized thereof and consider the Communication on its merits. As a result, it heard oral arguments by the Complainants, and scrutinized the validity, legality, and relevance of such arguments through a series of questions.
  1. Unfortunately, despite continued efforts by the Secretariat of the African Committee, this Communication does not benefit from a response by the Respondent State. This has inevitably forced the African Committee to rely on other information sources in determining and ascertaining questions of fact and law, that could possibly have been provided, raised, and/or invoked by the Respondent State. It is important to mention at the outset that the Guidelines for the Consideration of Communications explicitly provide that the absence of a party shall not necessarily hinder the consideration of a communication.

Admissibility

Complainants’ submission on admissibility

  1. The current communication is submitted pursuant to Article 44 of the African Charter on the Rights and Welfare of the Child which allows the African Committee to receive and consider communications from “any person, group or nongovernmental organization...”.The Guidelines for the Consideration of Communications provides, under Chapter II Article 1, that the admissibility of a communication submitted pursuant to Article 44 is subject to around seven conditions relating to form and content.
  2. The Complainants submitted, in a submission dated 6th November 2009, that the authors of the Communication have been identified and relevant details of the Communication have been provided to the Committee, it is written and it is against a State Party to the African Children’s Charter. The Complainants submitted that the Communication is compatible with the provisions of the Constitutive Act of the African Union as well as with the African Children’s Charter, that the Communication is not exclusively based on information circulated by the media, and that the same issue has not been considered according to another international procedure. In addition, the Complainants submitted that the Communication is submitted within a reasonable period of time and that the Communication is not written in an offensive language.
  3. A more detailed explanation is provided by the Complainants in relation to the requirement to “.exhaust all appeal channels at the national level.”.In this regard, the Complainants submitted that they have undertaken a number of efforts to exhaust local remedies for a period of seven years in order to resolve the issue of lack of citizenship of the Nubian community.
  4. The Complainants submit that in 2002 the Nubian community, through the Kenyan Nubian Council of Elders, instructed the Centre for Minority Rights Development (CEMIRIDE) to institute legal proceedings against the Kenyan Government. On 17th March 2003 an action was commenced in the High Court of Kenya by way of an urgent application that led to a leave to file a class action suit on behalf of the Nubian community.
  5. However, the Complainants indicate that, even though CEMIRIDE filed the substantial constitutional application the same day in the High Court in Nairobi, numerous procedural obstacles have since been raised which have stalled the case. These obstacles reportedly include how on 8 July 2003 a certain Justice of the High Court declined to transmit the file to the Chief Justice on the ground that it was necessary to ascertain the identity of the 100,000 applicants; how another Justice of the High Court subsequently agreed that such a process to ascertain was unreasonable and fixed a date for a hearing of the merits of the case for the 7th of June 2004; but later on how, on the 7th of June 2004, again another Justice declined to hear the application and referred it back to the duty judge for directions on grounds that there were contradictory orders in the file.
  6. Frustrated with the process, especially with the fact that within fifteen months of filing, the case had been brought before five different judges none of whom had proceeded with it, the Complainants indicate that a letter was sent to the Chief Justice of Kenya stating that there appeared to be a deliberate placement of administrative and procedural obstacles in the path of the determination of the application brought on behalf of the Nubian community. In this regard, the Complainants indicate that no response to this letter, and other letters sent on 24 July 2004, 24 September 2004, and 24 January 2005 was received.
  7. As a result, the Complainants submitted that, more than six years after the CEMIRIDE instituted proceedings on behalf of the Nubian community, no bench has been constituted and no date has been fixed for a substantive hearing on the case. By invoking jurisprudence from the African Commission, and highlighting the provisions of the African Children’s Charter and its Guidelines on the Consideration of Communications, the Complainants submit that such a delay is excessive, and should be seen as an exception to the exhaustion of local remedies rule.
  8. The Complainants are of the view that the pursuit of local remedies by the Nubian community has been fraught with such impediments that it offers no prospect of success and children of Nubian descent living in Kenya cannot be reasonably expected to benefit from these local remedies. As a result of the above, the Complainants argue that the Communication should be declared admissible as it complies with all the requirements of the Guidelines for the Consideration of Communications.

The African Committee’s analysis and decision on admissibility

  1. The African Committee, after a detailed consideration of the Communication, agrees with the submission of the Complainants that the form of the Communication is in compliance with the Guidelines of the African Committee- i.e. it is not anonymous, it is written, and concerns a State Party to the African Children’s Charter. It also decides, after a thorough look at the Communication, that the Communication is compatible with the Constitutive Act of the African Union and with the African Children’s Charter. The Communication is presented in a professional, polite and respectful language, and is based on information provided, inter alia, by the alleged victims and on court documents, and not solely based on media reports. The Secretariat of the African Committee has also undertaken efforts to confirm that the same issue provided for the in the present Communication has not been considered according to another international procedure.
  2. However, to decide on the less straightforward and important issue whether local remedies have been exhausted (and in connection to that, whether the present Communication has been brought within a reasonable period of time), which is an issue that probably would have been challenged by the Government of Kenya, the African Committee has scrutinsed the written and oral submissions by the Complainants in detail, and would offer below a more elaborate explanation.
  3. At the outset, it should be mentioned that the African Children’s Charter explicitly mandates the African Committee, in Article 46 of the Charter, to:

...draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples' Rights, the Charter of the Organization of African Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights, and from African values and traditions.

It is based on this explicit legislative mandate that the African Committee makes reference to laws, and jurisprudence from other countries or treaty bodies in Africa and elsewhere.

  1. This as a backdrop, a local remedy has been defined as "any domestic legal action that may lead to the resolution of the complaint at the local or national level."[2]Oneof the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level. In the words of the African Commission, exhaustion of local remedies is intended “to give domestic courts an opportunity to decide upon cases before they are brought to an international forum, thus avoiding contradictory judgments of law at national and international levels”.[3] Furthermore, the primacy and greater immediacy of the domestic level is reinforced by the fact that local remedies are “normally quicker, cheaper, and more effective”[4]and allow for better fact finding of alleged violations too. The African Committee understands and unreservedly supports these roles that the rule on the exhaustion of local remedies is supposed to play.
  2. The lack of awareness of an alleged violation by the State deprives it the opportunity to address such a violation. However, in the context of the present Communication, it would not be reasonably defensible to argue that the authorities in Kenya did not know about this ongoing allegation of violations of human rights in the presence of a number of related reports (including by the Human Rights Commission of Kenya) and more so, in the face of the pending case law before the High Court in Nairobi for such a long period of time.
  3. This said, it is a well established rule under international human rights law procedures that “only domestic remedies that are available, effective, and adequate (sufficient) that need to be exhausted”.[5]In Communication Nos. 147/95 and 149/96, the African Commission held that a remedy is considered available if the Complainant can pursue it without impediment; it is deemed effective if it offers a prospect of success; and it is found sufficient if it is capable of redressing the complaint.[6]In other words, in terms of jurisprudence from the African Commission, and by interpreting the African Committee Guidelines for the Consideration of Communications, it follows therefore that the local remedies rule is not rigid.
  4. In a clear distinction from other cases declared inadmissible by the African Commission,[7] the Complainants did not operate on the basis of anticipating the effectiveness or otherwise of local remedies in theory and argued an exception to the rule. Rather, they in fact engaged the judicial system in Kenya, but with no success so far to have the case heard on its merits. Furthermore, there are unconfirmed indications that the case in the High Court is still pending as a result of some procedural technicalities that may need to be fulfilled under Kenyan law. Even then, it cannot be in these children’s best interests (a principle domesticated by the Children’s Act of 2001) to leave them in a legal limbo for such a long period of time in order to fulfil formalistic legal procedures. As an upper guardian of children, the State and its institutions should have proactively taken the necessary legislative, administrative and other appropriate measures in order to bring to an end the current situation children of Nubian descent in Kenya find themselves in.
  5. Furthermore, with some stretch of imagination, it could also be argued that the Complainants should have exhausted extra-judicial remedies such as administrative procedures within the relevant government offices or by lodging an official claim at the Kenya National Commission on Human Rights. However, what is envisaged under the Guidelines for the Consideration of Communications, and also supported by the jurisprudence from the African Commission, is that extraordinary remedies of a non-judicial nature do not fall within the notion of “local remedies” and need not necessarily be exhausted for a communication to be declared admissible.
  6. The African Committee is of the view that the Complainants can be exempted from exhausting local remedies if such an attempt would be or is unduly prolonged, which is an explicitly mentioned exception under Article 56(7) of the African Charter on Human and Peoples’ Rights.
  7. In fact, an unduly prolonged domestic remedy cannot be considered to fall within the ambit of “available, effective, and sufficient” local remedy. Therefore, while the African Committee notes that in Civil Liberties Organization v. Nigeria,[8] the African Commission declined to consider a Communication with respect to which a claim had been filed but not yet settled by the courts of the Respondent State, it is our view that the unduly prolonged court process in the present Communication is not in the best interests of the child principle (Article 4 of the Charter), and warrants an exception to the rule on exhaustion of local remedies.
  8. To conclude, a year in the life of a child is almost six percent of his or her childhood. It is in the spirit and purpose of the African Children’s Charter, the Africa Call for Accelerated Action (Cairo Plus 5), the Millennium Development Goals and other similar commitments, that States need to adopt a “children first” approach with some sense of urgency. This is one of the messages that the drafters of the African Children’s Charter wanted to communicate in its Preamble when they recognized that “the child occupies a unique and privileged position in the African society”. The implementation and realization of children’s rights in Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.
  9. As a result of the above, the African Committee decides that the six years that lapsed without a consideration of the merits of the case before the High Court in Nairobi is unduly and unreasonably prolonged, and qualifies for an exception to the requirement imposed on Complainants to exhaust local remedies. In connection to this, the Committee is also of the view that this Communication is brought within a reasonable period of time, after waiting for a sufficient period of time attempting to see if local remedies would offer any prospect of success and adequate remedies.
  10. In view of the preceding reasoning, the Communication is declared admissible.

Consideration of the Merits

  1. The Communication alleges that the Respondent State violated Articles 6, in particular sub-articles (2), (3) and (4), Article 3, and as a result of these two alleged violations, a list of “consequential violations” including Article 11(3) and Article 14.

Decision on the merits

Alleged Violation of Article 6

  1. Article 6 of the African Children’s Charter, titled “Name and Nationality”, provides in full that:
  1. Every child shall have the right from his birth to a name
  2. Every child shall be registered immediately after birth.
  3. Every child has the right to acquire a nationality.
  4. States Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.
  1. It is rightly said that birth registration is the State’s first official acknowledgment of a child’s existence, and a child who is not registered at birth is in danger of being shut out of society - denied the right to an official identity, a recognized name and a nationality.9The Complainants allege that the treatment of children of Nubian descent violates their right to be registered at the time of their birth, because some parents have difficulty having their children registered especially since many public hospital officials refuse to issue birth certificates to children of Nubian descent. Such a limitation is confirmed by the Kenya National Commission on Human Rights (KNHCR) that identified and recorded practices indicating discrimination against certain population groups, including persons of Nubian descent, in the grant of birth registration and identity documents.[9]
  1. Both the African Committee (2009) and the CRC Committee (2007) have already recommended through their concluding observations to the Government of Kenya that there is some gap in the State Party’s birth registration practice, partly reflected in the number and categories (such as children born out of wedlock, children of minority groups, and children of refugee, asylum-seeking or migrant families) of births that go unregistered. Unregistered children are not issued birth certificates and thus rendered stateless, as they cannot prove their nationality, where they were born, or to whom. The African Committee is of the view that the obligation of the State Party under the African Children’s Charter in relation to making sure that all children are registered immediately after birth is not only limited to passing laws (and policies),[10] but also extends to addressing all de facto limitations and obstacles to birth registration.[11]
  2. The Complainants have further alleged that even when birth certificates are issued, they do not confer a nationality. They allege that children of Nubian descent are often left to wait until they turn 18 to apply to acquire a nationality.
  3. In this respect, the African Committee is of the view that there is a strong and direct link between birth registration and nationality. This link is further reinforced by the fact that both rights are provided for in the same Article under the African Children’s Charter (as well as the UN Convention on the Rights of the Child). The African Committee notes that Article 6(3) does not explicitly read, unlike the right to a name in Article 6(1), that “every child has the right from his birth to acquire a nationality”. It only says that “every child has the right to acquire a nationality”. Nonetheless, a purposive reading and interpretation of the relevant provision strongly suggests that, as much as possible, children should have a nationality beginning from birth. This interpretation is also in tandem with Article 4 of the African Children’s Charter that requires that “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. Moreover, this interpretation is further supported by the UN Human Rights Committee that indicated: “States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born” (African Committee’s emphasis).[12]Moreover, by definition, a child is a person below the age of 18 (Article 2 of the African Children’s Charter), and the practice of making children wait until they turn 18 years of age to apply to acquire a nationality cannot be seen as an effort on the part of the State Party to comply with its children’s rights obligations. Therefore, the seemingly routine practice (which is applied more of as rule than in highly exceptional instances) of the State Party that leaves children of Nubian descent without acquiring a nationality for a very long period of 18 years is neither in line with the spirit and purpose of Article 6, nor promotes children’s best interests, and therefore constitutes a violation of the African Children’s Charter.
  4. The Complainants allege that birth registration certificate in Kenya explicitly indicates that it is not proof of nationality thereby leaving even registered children stateless. Furthermore, the Communication further alleges that while children in Kenya have no proof of their nationality, they have legitimate expectation that they will be recognised as nationals when they reach the age of 18. However, for children of Nubian descent in Kenya, since many persons of Nubian descent are not granted the ID cards that are essential to prove nationality, or only get them after a long delay, this uncertainty means that the future prospects of children of Nubian descent are severely limited, and often leaves them stateless. The Complainants further allege that a vetting process that is applicable to children of Nubian decent is extremely arduous, unreasonable, and de facto discriminatory.
  5. Therefore, central to the present Communication is the issue of statelessness. One of the main purposes of Article 6, in particular Article 6(4) of the African Children’s Charter, is to prevent and/or reduce statelessness. A “stateless person”, according to the 1954 UN Convention relating to the Status of Stateless Persons, means “a person who is not considered as a national by any State under the operation of its law”. There is evidence that this universal definition of a “stateless person” is accepted as part of customary international law. Therefore, a “stateless child” is a child who is not considered as a national by any State under the operation of its laws.
  6. While complex issues of parentage, race, ethnicity, place of birth, and politics all play a role in determining an individual's nationality, the root causes of statelessness are complex and multifaceted including state succession, decolonization, conflicting laws between States, domestic changes to nationality laws, and discrimination.[13]
  7. Whatever the root cause(s), the African Committee cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherits an uncertain future. For instance, they might fail to benefit from protections and constitutional rights granted by the State. These include difficulty to travel freely, difficulty in accessing justice procedures when necessary, as well as the challenge of finding oneself in a legal limbo vulnerable to expulsion from their home country. Statelessness is particularly devastating to children in the realisation of their socio­economic rights such as access to health care, and access to education. In sum, being stateless as a child is generally antithesis to the best interests of children.
  8. At the global level, a range of instruments recognise the right to acquire a nationality, albeit with varying formulations.[14] Here, it is worth mentioning that, as Doek rightly explains, international human rights law has shifted from the position that “the child shall be entitled from his birth (...) to a nationality”,[15] to one mandating that the child “shall acquire a nationality” (Article 7(1) of CRC, Article 24(3) of ICCPR).[16]The same wording and position is transparent under Article 6 of the African Children’s Charter. The reason for such a shift is because it is felt that “a State could not accept an unqualified obligation to accord its nationality to every child born on its territory regardless the circumstances”.[17]
  9. Therefore, under general international law, States set the rules for acquisition, change and loss of nationality as part of their sovereign power. However, although states maintain the sovereign right to regulate nationality, in the African Committee’s view, state discretion must be and is indeed limited by international human rights standards, in this particular case the African Children’s Charter, as well as customary international law and general principles of law that protect individuals against arbitrary state actions. In particular, states are limited in their discretion to grant nationality by their obligations to guarantee equal protection and to prevent, avoid, and reduce statelessness.[18]
  10. This as a backdrop, the Government of Kenya has adopted its rules that provide for conditions by which a person can become a Kenyan citizen. Pursuant to Chapter IV of the former Constitution of Kenya and the Kenya Citizenship Act, Cap 170 of the Laws of Kenya, the four ways through which a person may acquire Kenyan citizenship are birth, descent, registration, and naturalisation. The African Committee has found sufficient evidence that indeed some persons (including children) of Nubian descent in Kenya have acquired Kenyan nationality through one of these four ways. Therefore, neither the Communication alleges nor the African Committee believes that all children of Nubian descent in Kenya have been left stateless. However, the crux and truth of the matter is that, even with the application of these (fairly restrictive)four ways through which a person can become a Kenyan national, a significant number of children of Nubian descent in Kenya have been left stateless.
  11. As a result, the duty in Article 6(4) of the African Children’s Charter to ensure that a child “...acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws” is squarely applicable to the present Communication as an obligation of the Government of Kenya. This, by no means, is an attempt by the African Committee to be prescriptive about the choice States make in providing for laws pertaining to the acquisition of nationality. Therefore, while the African Committee is not suggesting that States Parties to the Charter should introduce the jus soli approach, in line with the best interests of the child principle, it is explaining the intent of Article 6(4) of the African Children’s Charter that if a child is born on the territory of a State Party and is not granted nationality by another State, the State in whose territory the child is born, in this particular case Kenya, should allow the child to acquire its nationality.
  12. It may have been further argued (by the Government of Kenya), perhaps rather loosely, that the children of Nubian descent in Kenya may be entitled to the nationality of the Sudan, and, as a result, the Government does not have to provide them with Kenyan nationality. However, such a line of argument would be remiss of the fact that, implied in Article 6(4) is the obligation to implement the provision proactively in cooperation with other States, particularly when the child may be entitled to the nationality of another State. In the Communication at hand, nothing has transpired that indicates that the Government, if it holds such view, has undertaken any meaningful efforts to ensure that these children acquire the nationality of any other state.
  13. In this regard, it is apposite to further highlight the nature of the State Party obligation that Article 6(4) of the Charter provides, which is - “undertake to ensure”. As such, the obligation that States Parties including Kenya have under Article 6(4) of the Charter is not an obligation of conduct but an obligation of result. States Parties need to make sure that all necessary measures are taken to prevent the child from having no nationality.
  14. The African Committee notes and commends the new Constitutional dispensation introduced in 2010 in Kenya which ushers a number of advancements in promoting and protecting children’s rights, including their right to acquire a nationality. In particular, Article 14(4) of the 2010 Constitution entrenches that a child less than eight years of age whose parents are not known is presumed to be a citizen by birth. While the African Committee lauds the effort of the State Party in providing for this provision in its Constitution, it would like to draw the attention of the State Party that this provision is still not a sufficient guarantee against statelessness, let alone address the crux of the present Communication- namely, children born in Kenya of stateless parent(s) or who would otherwise be stateless, to acquire a nationality by birth.
  15. As a result of the above, the African Committee finds violations of Articles 6(2), 6(3) and 6(4) of the African Children’s Charter buy the Government of Kenya.

Alleged Violation of Article 3

  1. The Complainants allege that children of Nubian descent in Kenya are treated differently from other children in Kenya, for which there is no legitimate justification, amounting to unlawful discrimination and a violation of Article 3 of the African Children’s Charter. They further allege that the fact that children of Nubian descent are expected to go through a lengthy and arduous process of vetting (including requiring them to demonstrate the nationality of their grandparents, as well as the need to seek and gain the approval of Nubian elders and governmental officials, etc.) is discriminatory, and depriving them of any legitimate expectation of nationality, and leaving them effectively stateless.
  2. Racial and ethnic discrimination are prohibited as binding jus cogensnorm of international law. The African Children’s Charter is no exception. Article 3 provides in full that:

[e]very child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

The current facts in relation to children of Nubian descent in Kenya indicate a prima facie case of discrimination and violation of Article 3 of the Charter. As a result, the burden shifts to the state to justify the difference in treatment indicating how such a treatment falls within the notion of fair discrimination. The failure of the State to be present for a consideration of this Communication makes such an engagement impossible. However, the African Committee weighed whether the treatment of the children of Nubian descent in Kenya can be considered to be a fair discrimination, but found otherwise. For instance, in a very similar case involving children of Haitian descent in Dominican Republic, it was held that the refusal and placing of unfair obstacles by local officials to deny birth certificate and recognition of the nationality of Dominicans of Haitian descent as part of a deliberate policy which effectively made the children stateless constituted racial discrimination.[19] Moreover, after a thorough investigation of the situation of children of Nubian descent in Kenya, the Kenya National Commission on Human Rights has concluded that “the process of vetting... Nubians... is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society”.[20]

  1. The current practice applied to children of Nubian descent in Kenya, and in particular its subsequent effects, is a violation of the recognition of the children’s juridical personality, and is an affront to their dignity and best interests. For a discriminatory treatment to be justified, the African Commission has rightly warned that “the reasons for possible limitations must be founded in a legitimate state interest and . limitations of rights must be strictly proportionate (sic) with and absolutely necessary for the advantages which are to be obtained”.[21]The African Committee is not convinced, especially in relation to a practice that has led children to be stateless for such a long period of time, that the current discriminatory treatment of the Government of Kenya in relation to children of Nubian descent is “strictly proportional with” and equally importantly “absolutely necessary” for the legitimate state interest to be obtained. The Committee is of the view that measures should be taken to facilitate procedures for the acquisition of a nationality for children who would otherwise be stateless, and not the other way round. As a result of all the above, the African Committee finds a violation of Article 3 of the African Children’s Charter.

Consequential violations

  1. The indivisibility of rights in the African Children’s Charter is underscored by the consequential impact of the denial of nationality to children of Nubian descent by the Government of Kenya. All Charter rights generate obligations to respect, protect, promote and fulfil. This is no less so in respect of the rights implicated when nationality and identity rights are violated. The complaint in the instant Communication has primarily resulted in an infringement of Article 3 which fundamentally proscribes discrimination against the child so as to limit the enjoyment by the child of the rights and freedoms recognised and guaranteed in the Charter. In the instant case, the discriminatory treatment of the children affected by the conduct of the Government of Kenya based on their and their parents’ and legal guardians’ social origin has had long standing and far reaching effects on the enjoyment of other Charter rights. And, as the African Commission on Human and Peoples’ rights has confirmed, in the African context, collective rights and economic and social rights are essential elements of human rights in Africa.[22]

Alleged Violation of Article 14

  1. In the first place, a case had been made out that the affected children have suffered denial and unwarranted limitation of their rights to health. The Charter provides in Article 14 for the children to enjoy the right to the highest attainable standard of health. Minimal access to health facilities, a lower level of contact with health promoting measures and medical assistance, and a lack of provision of primary and therapeutic health resources and programmes is inconsistent with respect for the child’s right to the highest attainable standard of health. African jurisprudence places a premium on both the right to health care and the right to the underlying conditions of health. In the Purohitcase, the African Commission held that the right to health in the African Charter on Human and Peoples’ Rights includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.[23] It has been confirmed that the underlying conditions for achieving a healthy life are protected by the right to health. Thus lack of electricity, drinking water and medicines amount to a violation of the right to health. The Zaire case,[24] concerning Article 16 of the African Charter on Human and Peoples’ Rights, confirmed that the failure of the government of Zaire to provide the mentioned basic services amounted to an infringement of the right to health.
  2. In the Communication regarding the children affected by the denial of their nationality and Kenyan identity, a case was made out that the State Party had violated in particular the right enshrined in Article 14(2) (b) (the duty to ensure the provision of necessary medical assistance and heath care to all children with the emphasis on the development of primary health care) and article 14(2)(c) (the duty to ensure the provision of adequate nutrition and safe drinking water). These provisions being similar in content to the equivalent provisions in the African Charter on Human and Peoples’ Rights, it can be deduced that the findings of the African Commission bear significant relevance.
  3. It is incumbent upon States Parties to the African Children’s Charter to ensure that Article 14(2)(g) is given full implementation, within available resources. Integrated health service programmes must be fully incorporated national development programmes, including those pertaining to the most vulnerable who lived in overcrowded and underserviced slum areas or camps. Where the underlying conditions, such as conditions in informal settlement and slum areas, present a heightened risk to the child’s enjoyment of her right to health, the duty bearer must accept that there is a correspondingly more urgent responsibility to plan and provide for basic health service programmes under Article 14 (2)(g)). The States Parties to the African Children’s Charter are encouraged in giving effect to their Article 14(2)(g) obligations, to ensure that national development plans reflect the need to prioritise health services and to intensify such planning for services to otherwise disadvantaged communities where child beneficiaries live.
  4. The affected children had less access to health services than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available health care resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer facilities and a disproportionately lower share of available resources as their claims to permanence in the country have resulted in health care services in the communities in which they live being systematically overlooked over an extended period of time.[25] Their health needs have not been effectively recognised and adequately provided for, even in the context of the resources available for the fulfilment of this right.

Alleged Violation of Article 11(3)

  1. The Committee notes that the violation includes an infringement of the rights enshrined especially in Article 11(3) of the African Children’s Charter, which provides for the right to education. Ratifying States Parties undertake to take all appropriate measures, with a view to achieving full realisation of this right. Article 11(3) (a) requires in particular the provision of free and compulsory basic education, which necessitate the provision of schools, qualified teachers, equipment and the well recognised corollaries of the fulfilment of this right.
  2. The African Commission on Human and Peoples’ Rights has emphasised that the failure to provide access to institutions of learning would amount to a violation of the right to education under the African Charter on Human and Peoples’ Rights.[26]
  3. The affected children had less access to educational facilities for the fulfilment of their right to free and compulsory primary education than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available educational services and resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer schools and a disproportionately lower share of available resources in the sphere of education, as the de facto discriminatory system of resource distribution in education has resulted in their educational needs being systematically overlooked over an extended period of time.[27] Their right to education has not been effectively recognised and adequately provided for, even in the context of the resources available for this fulfilment of this right.
  4. At this juncture, while not directly in contention in this Communication, the African Committee would also like to highlight the relevance of Article 31 of the African Children’s Charter to the issues at hand. Article 31 of the African Children’s Charter requires that every child shall have responsibilities towards the family, society and the state, as well as other legally recognised communities, subject to his age and ability and to other limitations as may be contained in the Charter. Children of Nubian descent who have been born in Kenya are subject to the requirement of their serving their national community by placing their physical and intellectual abilities at the service of the nation, as well as preserving and strengthening social and national solidarity and the independence and integrity of his country. Although it cannot be suggested that the fulfilment of these duties is contingent upon the of their status as nationals and their identity as children of Kenya, the fulfilment of Article 31 responsibilities highlights the reciprocal nature of rights and responsibilities, which reciprocity is not fulfilled when Article 6 rights are not respected by the State concerned. The Committee wishes to emphasise that national solidarity and African unity are best achieved in an environment which eschews discrimination and denial of rights.
  5. The African Committee regards the violations discussed in the preceding paragraphs as emblematic of the difficulties occasioned by the non-recognition of Kenyan nationality of children of Nubian descent in the instant case. Other Charter rights which, seen together, serve the child’s best interests can be adduced on which the present violation have a bearing. The African Committee does not need to investigate these in further detail in the light of the findings above.
  6. The Committee does not wish to fault governments that are labouring under difficult circumstance to improve the lives of their people. The Government of Kenya has ratified the African Children’s Charter earlier than many countries on the continent (25 July 2000), and more importantly, has made a number of significant progresses in implementing the provisions of the Charter. However, it is worthy of note that the violation complained of has persisted unchecked for more than half a century, thereby prejudicing not just the children in respect of whom the complaint has been brought under this African Children’s Charter, but indeed generations preceding them. The implications of the multi-generational impact of the denial of right of nationality are manifest and of far wider effect than may at first blush appear in the case. Systemic under-development of an entire community has been alleged to be the result. Therefore, in addressing the consequences of the non­recognition of the nationality of children of Nubian descent, actions which address the long­term effects of the past practice must be formulated. As is clearly stated in the African Children’s Charter (see Article 11(2)(h); Article 14(2)(h); Article 20(2)), such measures must be formulated with the participation of the impacted community.

Decision of the African Committee

  1. For the reasons given above, the African Committee finds multiple violations of Articles 6(2), (3) and (4); Article 3; Article 14(2) (b), (c) and (g); and Article 11(3) of the African Children’s Charter by the Government of Kenya, and:
  1. Recommends that the Government of Kenya should take all necessary legislative, administrative, and other measures in order to ensure that children of Nubian decent in Kenya, that are otherwise stateless, can acquire a Kenyan nationality and the proof of such a nationality at birth.
  2. Recommends that the Government of Kenya should take measures to ensure that existing children of Nubian descent whose Kenyan nationality is not recognised are systematically afforded the benefit of these new measures as a matter of priority.
  3. Recommends that the Government of Kenya should implement its birth registration system in a non-discriminatory manner, and take all necessary legislative, administrative, and other measures to ensure that children of Nubian descent are registered immediately after birth.
  4. Recommends that the Government of Kenya to adopt a short term, medium term and long term plan, including legislative, administrative, and other measures to ensure the fulfilment of the right to the highest attainable standard of health and of the right to education, preferably in consultation with the affected beneficiary communities.
  5. Recommends to the Government of Kenya to report on the implementation of these recommendations within six months from the date of notification of this decision.In accordance with its Rules of Procedure, the Committee will appoint one of its members to follow up on the implementation of this decision.

Done in Addis Ababa, Ethiopia,

22 March 2011

The Chairperson of The Committee

 

9 See UNICEF “Birth registration: Right from the start” (March 2002) Innocenti Digest No 9, 1.

 

[1] Although technically speaking “nationality” and “citizenship” do not mean the same thing, the African Committee uses the two notions interchangeably in this decision as they are used in such a manner in the Communication itself.

[2] See Constitutional Rights Project [CRP] v. Nigeria, Communication No. 60/91.

[3] SERAC v. Nigeria, Communication No. 155/96, para 37.

[4] F Viljoen International human rights law in Africa, (2007), 336.

[5] As above. See too citations there in pertaining to the jurisprudence of the African Commission in this regard and Dawda Jawara v. The Gambia, Communication Nos. 147/95 and 149/96, para.32.

[6] Paras 31 and 32.

[7] See, for instance, Anuak Justice Council v Ethiopia, Communication 299/2005, para 48

[8] Communication No. 45/90.

[9] See generally, KNCHR, “An Identity Crisis? Study on the issuance of national identity cards in Kenya” (2007).

[10] It remains to be seen in practice the extent to which the guarantee in the 2010 Constitution, particularly in Article 12(1)(b) which states that “[e]very citizen is entitled to a Kenyan passport and to any document of registration and identification issued by the State to citizens” will improve this situation.

[11] This can sometimes be achieved through a universal, well-managed registration that is based on the principle of non-discrimination and accessible to all (using e.g. mobile registration units for children living in remote areas) and free of charge. See J.E. Doek “The CRC and the right to acquire and to preserve a nationality” (2006) 25(3) Refugee Survey Quarterly 26.

[12] Human Rights Committee, General Comment No. 17, “Article 24: Rights of the Child”, (1989), para. 8.

[13] See S Kosinski “ State of uncertainty: Citizenship, statelessness, and discrimination in the Dominican Republic” (2009) 32 Boston College International and Comparative Law Review 377.

[14] These instruments include the Universal Declaration of Human Rights (UDHR); International Covenant on Civil and Political Rights (ICCPR); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention on the Rights of the Child (CRC); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW); and the Convention on the Rights of Persons with Disabilities (CRPD).

[15] Principle 3 of the UN Declaration on the Rights of the Child of 1959.

[16] Doek (note 12 above).

[17] As above.

[18] In this regard, the African Committee is of the view that African States, including Kenya, need to be encouraged and supported to ratify and implement fully the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

[19] See, generally, Yean and Bosico v. Dominican Republic, I-ACtHR Judgment of 8 September 2005.

[20] KNCHR, (note 10 above), vi.

[21] Legal resources Foundation v. Zambia, Communication No. 211/98, para 67

[22] SERAC v. Federal Republic of Nigeria, Communication No. 155/96, para 68.

[23] Purohit and Moore v. The Gambia, Communication 241/2001, para 80.

[24] Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93

[25] This can also be said to affect their right to development under the African Charter on Humans and Peoples’ Rights, to which the Republic of Kenya is also a States Party. See, too the right to survival and development provided for on Article 6 of the UN Convention on the Rights of the Child, as well as Article 24 dealing with the right to health.

[26] Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93, para 11.

[27] This can also be said to affect their right to development under the African Charter on Human’s and Peoples’ rights, to which the republic of Kenya is also a states party. See, too the right to survival and development provided for on article 6 of the UN Convention on the Rights and Welfare of the Child, as well as article 24 dealing with the right to health.