Childhood statelessness in Kenya: an appraisal of legislative compliance with international human rights law obligations

Abstract

Childhood statelessness is a global concern because statelessness occurs in all the continents. A ‘stateless child’ refers to a child who is not legally recognised as a citizen of any state under its citizenship laws. In Kenya, childhood statelessness arises in both non-migratory and migratory contexts. In the non-migratory context, it affects children from ethnic minority groups and non-indigenous communities like: the Nubians, Waatas, Shirazis, Coastal Arabs, Kenyan Somalis, Galje’els, Burundians, Rwandans and the Congolese who are at risk of becoming stateless because they face challenges when applying for national identity documents upon attaining adulthood. In the migratory context, statelessness affects Somali children born in exile, in protracted refugee situations in Kenya, because they have few chances of naturalizing as Kenyan citizens. Consequently, this puts them at risk of becoming stateless refugees. The overarching question of the study is: to what extent has Kenya complied with its international human rights law treaty obligations on the children’s right to a nationality to address childhood statelessness, and what challenges hinder its full realization of this right? Previous research does not fully address Kenya’s compliance with international human rights law obligations of upholding the children’s right to a nationality in non-migratory and migratory contexts, from the colonial period to the present day. This research aims to examine the challenges that Kenya has faced in implementing the children’s right to a nationality. Thereafter it, proposes a child rights-based approach to promote and protect the children’s right to a nationality. This approach relies on the best interests of the child principle, nondiscrimination, the right to life, survival and development, participation and the added value which the African Charter on the Rights and Welfare of the Child brings in the promotion of children’s rights. This study adopts a doctrinal legal research methodology to analyse international and regional instruments on the children’s right to a nationality, citizenship laws, case law, international law reports, general comments, books, journal articles, policy documents and newspapers.