( This is the unabridged version of my article that appeared in the Standard on Monday 17th October 2016 and in the Daily Nation on Wednesday 19th October 2016)
In the wake of the Makonde people of Kwale County in Kenya marching to statehouse to agitate for their rights of recognition as citizens and the directive by the President and cabinet that they be processed, there is need for a national discourse on the issue of statelessness in Kenya.
According to the Constitution, Kenyan citizenship may be acquired only in two ways: by birth or registration. Citizenship by birth is the highest level of citizenship and cannot be lost under any circumstance, while citizenship by registration can be revoked as per the law. Article 18 (a & g) gives powers to Parliament to enact laws on the procedures of becoming a citizen as well as giving effect to provisions of Chapter 3 of the constitution.
Evidently, it is clear that if one is not born a citizen by virtue of one parent being Kenyan, they must follow the laid down procedures to acquire citizenship. It is in this realization that the Kenya Citizenship and Immigration Act, 2011 sets the criteria for stateless persons and migrants to acquire citizenship. Section 15 is succinctly clear that it is only persons who have no enforceable claim to citizenship of any recognizable state and have been living in Kenya since December 12th 1963 that can become citizens under the ‘stateless person’s’ claim.
This section also sets basic standards to be met by the applicant as: adequate knowledge of Kiswahili or local dialect; not been convicted of an offense and sentenced to imprisonment for a term of three years or longer; intention to permanently continue residing in Kenya or maintain a close and continuing association with Kenya and an understanding of the rights and duties of a citizen. Important to note is that there are limits to the period that this window of stateless persons acquiring citizenship is open. According to section 16 of the Immigration Act, this is capped at a maximum of eight years from 30th August 2016, when the Act came into effect. The initial period of 5 years commenced from 30th August 2011 but can be extended for three years to 30th August 2018.
As an immigration consultant and practitioner, my view is that citizenship by registration under any status including statelessness must be done in accordance with the laid down procedures and cannot be issued to groups but to individual applicants. The Makondes, Nubians, Somalis, Shonas, Indians and pockets of Rwandese and Burudians that fall under stateless status should apply for citizenship because it cannot be issued to them automatically. However, in order to make the exercise bearable for the applicants, the government in line with the president’s directive should come up with simplified process that can be done without the usual bureaucracies. Granting of citizenship is a function of the executive, and as long as it is done according to the law, then the tedious bureaucracies should be shelved to enable deserving persons acquire it.
For the human rights organisations that have been agitating for the issuance of citizenship to groups, their focus should be on trying to identify individuals in those communities that meet the set procedures and help them apply for citizenship. They should then push the government to expedite the process before the 8 year-window lapses.
My proposed way forward is – first, we need to get all the necessary details of these people and classify them into appropriate categories. Secondly, there are those persons that got married to Kenyans and therefore would qualify to apply for citizenship as spouses. Thirdly, children born to the stateless person and a Kenyan citizen are Kenyans, Fourthly, those with identification documents from their country of ancestry fall under migrants and therefore qualify to apply for citizenship and become dual nationals. That leaves a small group that is stateless for whom the government can expedite the process.
It is incumbent upon the government and local leaders to relook at the issue of statelessness in Kenya with an aim of sorting it once and for all. Parliament should address this matter robustly so that all Kenyans including, those classified as stateless, can achieve the aspiration of living as true citizens enjoying all the rights and freedoms. I am not sure if the president can in one stroke order all stateless persons in Kenya today to become citizens but he has the powers to simplify the process for them. Citizenship is indeed a crucial element in enjoyment of the rights of individuals and communities and therefore all those that qualify should be granted.
George M. Mucee is an Immigration Consultant and the Practice Leader, Fragomen Kenya Ltd.