Global Human Rights Defence

The Pemba Minority Stateless in Kenya

Hiba Zene, GHRD

Statelessness is the world’s “most forgotten human-rights problem” as to be stateless, to not have a nationality, means that “you are not able to send children to school or go to a health center, to be able to work legally or to have property”.

 António Guterres, UN High Commissioner for Refugees, 2011

Although, Kenya has ratified and signed various international and regional human rights law instruments, such as the CERD, ICCPR, CRC, CEDAW and the ACHPR. All containing provisions regulating the substance of the right to a nationality and that protect against statelessness. Safeguarding the right to nationality and protecting against statelessness remains to be a challenge for the government of Kenya. As marginalized groups such as the Pemba community continue to be deprived of nationality and continue to be discriminated against in Kenya. 

Kenya is home to an estimated 18,500 stateless persons that belong to or are members of a marginalized ethnic group, such as the Pemba minority. It is home to an estimated 4000 members of the Pemba minority, who are earning their living through fishing and subsistence farming.  

The Pemba minority originated from the Tanzanian island of the same name, arrived in two major waves of migration to the southern coast of Kenya. The first group arrived between 1935 and 1940 in search of better livelihood opportunities. While the second group arrived in Kenya between 1963 and 1970, also seeking a better livelihood, but most fleeing the violence resulting from the 1964 Zanzibar Revolution.   ©UNHCR                                       

Unfortunately in 1963, the members of the Pemba community failed to register with the post-colonial government. Leaving them without any state connection, national identity, and any basic legal identification documents, such as an ID card or a birth certificate. Members of the Pemba community describe that the discrimination they are facing has extensive consequences, as they cannot access genuine employment, health services, education, open a bank account or get a loan and cannot purchase land or property.

In an interview the Human Rights TV Channel of GHRD, Mwalimu Mkhasha a member of the stateless Pemba community stated; 

The discrimination that stateless people feel is in all those areas that require identification. For example, they feel discriminated against because they cannot access genuine employment. They cannot own land, move freely, go for higher education or health insurance funds and therefore, they continue to feel discriminated against. 

Mwalimu Mkhasha

Kenyan authorities do not recognize members of the Pemba minority as Kenyan nationals even though these individuals have been living in Kenya throughout their whole lives. From a legal perspective, this means that these stateless individuals are viewed as being simply “non-existent” by government officials, and for that reason, no state protection is granted. Depriving them of nationality and impeding their basic fundamental human rights. Preventing them from accessing their right to healthcare, right to education, right to meaningful employment, right to own property, and their right to free movement.

“When it comes to employment it is very difficult for stateless persons to access employment. Most of the time they can only secure manual labor and even in those cases they are treated differently and discriminated against. As they prefer to employ other Kenyans or any other person rather than a stateless person. They kind of view them as a lesser person, who is less deserving, and therefore stateless persons get paid less. This practice is discriminatory as they would rather employ Kenyans or other persons, but not stateless individuals. And in cases where stateless persons have secured a job, payment is not equal, as Kenyans are paid better than stateless persons.”

  Phelix Lore 

The Pemba minority is not registered accurately in Kenya and is therefore not equipped with basic documentation, such as an ID card or a birth certificate. They are treated differently and often discriminated against when compared to other Kenyans. And, are excluded from accessing legal or sustainable employment, obtaining loans and licenses, and denied the ability to own their own property, which would allow them to make a decent living. Making them vulnerable and placing them at a disadvantage when compared to other Kenyan citizens. For example, when an environmental catastrophe occurs, the donations are made for identifiable persons only and hence not them. 

The government has been providing financial support to poor families during the COVID-19 lockdown. Each week, each family is provided with at least one thousand Kenyan shillings by the government. However, only those who have identification receive it. This means that we don’t receive anything from the government and are left out.   

Mwalimu Mkhasha

We have been dealing with cases where the government is giving out food and aid to its citizens and taking care of them. While simultaneously, the Pemba and other stateless communities were given nothing and left out, because they could not produce any ID cards. As, for the government, the identity card is the number one accounting document, and without it, no government officer would give out any food or other aid to stateless persons. 

Phelix Lore

©UNHCR

Although, Sections 15, 16, and 17 of the Kenyan Citizenship and Immigration Act of 2011, contain provisions addressing the issue of statelessness, stateless children, and the registration of stateless persons. The effective implementation of these provisions remains to be challenging and incomplete due to the lack of procedural guidelines.  

Section 15, provides that stateless persons living in Kenya for a continuous period since December 12, 1963, may be considered for citizenship upon fulfilling set criteria. This definition of statelessness in the Kenyan Citizenship and Immigration Act of 2011 contains a time limit, as it at all times refers to “since 1963”. This is very limiting as it seems to only recognize people who have been in the country before or during independence. Excluding, all other individuals who became stateless within the boundaries of the country or who came to the country after independence. 

Amos Mwatata

Another cause of statelessness is related to practice in Kenya. The lack of adequate administrative procedures regulating the registration of stateless persons in Kenya. That continues to allow government authorities to have a lot of power and discretion when examining and reviewing citizenship applications. For example, registration offices maintaining discretion to request from applicants documentary evidence before issuing any documents, such as birth certificates or other various additional documentation that require repeated trips to countless different government buildings causing additional travel expenses and delaying the proceedings. These administrative practices contribute to the issue of statelessness in Kenya, as these offices can also decide to cancel their registration and even revoke ID cards.  

   ©UNHCR

On paper, it is impossible for stateless persons, migrants, and descendants of stateless persons to register for citizenship. As there is no administrative procedure that regulates the registration of stateless persons in Kenya.

Amos Mwatata

State authorities continue to subject stateless individuals despite being legally recognized by the government as a tribe or community to very difficult “vetting” procedures. When applying for nationality documents it subjects members of minority groups to long and scrutinizing procedures to prove their eligibility for citizenship. For example, when applying for nationality documents, minority groups are often requested to provide for additional documentation, such as land titles, screening cards, and grandparents’ IDs, which are difficult to produce or obtain. It places an unnecessary burden on these minority groups and directly discriminates against them. 

We cannot benefit from many areas that others have access to because we lack documentation. We cannot open a bank account, own property, businesses, or own land. We don’t have access to basic healthcare insurance funds, education and we are not free to move or travel. There are even certain buildings we cannot get into or access, as they require identification which we don’t have.

Mwalimu Mkhasha

The Constitution of the Republic of Kenya, the Kenyan Citizenship and Immigration Act of 2011, the Security Law Amendment Act of 2014, and the Children Act of 2001, all contain provisions concerning the acquisition, restoration, retention, and loss of nationality. And, yet Kenya does not provide for any adequate or effective protection against statelessness. Kenya fails to particularly provide for citizenship by birth for children born in Kenya to stateless parents or who would otherwise be stateless if citizenship is not granted.

Statelessness in Kenya is generational or inherited. Mainly because our laws don’t contain procedures or measures that safeguard children who otherwise would be stateless. 

Amos Mwatata

In 2018, the United Nations Commissioner for Refugees and the Kenya Human Rights Commission, and other non-governmental organizations including the Haki Centre have intervened and urged the government of Kenya to act and address the issue of statelessness. Their intervention was successful and the government made some major efforts to improve the issue of birth registration. Since 2018, children from stateless communities, who are born in a hospital are provided with birth notification cards that permit the parents to get official birth certificates later on. A significant improvement except for the fact that the Kenyan government excluded all children who were born before this measure was adopted and those without a birth notification card.  

In order for our children to continue with their educations, members of the Pemba and the community has been forced to register their children as members of the Digo community.  

Mwalimu Mkhasha

The denial of legal identity, the right to a nationality can deprive a child of fundamental human rights, which in turn “have longstanding consequences on children’s social, economic, and personal development”. Discriminatory policies requiring a citizen status or documentation to access state services often imply the total exclusion of children from education, basic healthcare services, and social benefits. Preventing them eventually from obtaining official educational certificates or legal employment and depriving them of their basic human rights.

According to the UNHCR, the best interests of the child principle is to be understood as “that children are not be left stateless for an extended period”. UN institutions and various other Human Rights bodies have strongly emphasized the importance of the principle of the best interest of the child. More specifically, that this principle demands that children be protected from statelessness, as statelessness can impede a child’s development and even survival by obstructing their access to healthcare and education, for instance. Kenya repeatedly fails to take into consideration the importance of the child’s best interests in all state actions, as argued in the case of Nubian Minors v. Kenya

The Nubian Minors v. Kenya case illustrates how stateless children have been negatively affected and denied access to education in Kenya. The petitioners, in this case, argued that Kenya had violated their rights to equal access to education. By placing significant burdens and difficulties on them in the process of acquiring legal documentation such as ID cards required for school enrollment. In this case, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), found that Kenya’s vetting system “unlawfully discriminated” against Nubian Children in violation of Art. 3 of the ACRWC, leaving them stateless or at risk of statelessness, with no legitimate hope of gaining recognition of their citizenship. As a result, Nubian Children lack access to education and adequate healthcare, which violates Kenya’s obligations under Art, 14(2)(a) – (c), (g), and Art. 11. (3).  

The Convention on the Rights of the Child, which applies to every child within the state’s jurisdiction, without discrimination.  Provides that every child has the right to acquire a nationality and to be registered immediately after birth. Meaning, states such as Kenya, must ensure that children enjoy these rights in practice and where a child is denied his or her identity, State Parties must provide “appropriate assistance and protection”. This means that Kenya is obliged to adopt and implement measures that grant every child the right to a nationality. Especially, where the child would otherwise be left stateless. This is where the government officials of Kenya fail to provide for adequate protection.

Leave a Comment

Your email address will not be published.

Mandakini

Coordinator - Tibet Team

Mandakini graduated with honours from the Geneva Academy of International Humanitarian Law and Human Rights. Her team analyses the human rights violations faced by Tibetans through a legal lens.

Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

Célinne Bodinger
Environment and Human Rights Coordinator

As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
Team Coordinator and Head Researcher- South America

Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)
(Europe)

She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher
(Africa)

Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
(European Union)

Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
Alessandro believes that human rights advocacy requires grass-roots initiatives where victims’ voices are amplified and not paraphrased or spoken for. He will therefore act on this agenda when representing Global Human Rights Defence domestically and abroad

Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
(Africa)​

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.