NAVIGATING THE STATELESSNESS MAZE IN KENYA

( 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.

AFRICAN PASSPORT: GOOD IDEA BUT A TALL ORDER

(This is the original article that I wrote. It has now appeared in two Newspapers in Kenya: The Star on Sunday 9th October 2016 page 13 and The Standard on 10th October 2016 page 1 and in the EastAfrican on October 17th 2016 Please note this is unabridged version and has some bits that were edited out by the Newspapers)

The concept of a United State of Africa has gained traction in the last few months after the African Union (AU) launched an African passport in July 2016. The goal is to have the document in circulation by 2020 to allow citizens of the 54 member states travel visa-free across the continent.

The notion of a single continental bloc was advanced by the late Libyan President Col. Muammar Gaddafi who even put substantial resources into it to woo African states into buying the proposed idea. Although largely driven by his own political ambitions and ego, Gaddafi had a valid proposition of a united Africa that the AU now seems to be receptive to.

Whilst there are both pros and cons, the quest for one passport for Africans is a welcome move. There are numerous benefits to be derived from a united Africa that would outweigh those of a divided continent. If this becomes a reality and enables citizens of 54 member states travel with ease across Africa, it will spur growth by encouraging Africa to trade with itself. A more integrated Africa would empower us to better negotiate for our rightful share at the global arena, perhaps starting with a permanent seat at the UN Security Council or a greater role in global trade institutions such as the World Trade Organization. Indeed, few global forums could afford to ignore a united Africa.

The question however is- how practical is this AU passport in a continent as big and diverse as Africa? Africa has well developed states like South Africa; unstable states like Somalia and countries undergoing civil strife like South Sudan. There are all manner of political leadership systems ranging from democracies, autocracies, monarchies and military regimes. This effectively means coming up with common regulations may prove a tall order.

It is important to note that the value of the passport is not the booklet but rather the weight, recognition and integrity of the process it carries. A recent Vlog by a Kenyan media personality, Caroline Mutoko, implored the concerned authorities to restore the glory of the Kenyan passport to enable the holders travel in dignity unlike the current situation where pass holders are treated with contempt and indignation before getting visas to other countries.

Further, immigration has emerged as a major political concern for many countries regardless of their level of development. In fact, any candidate seeking political office in America and Europe, must have a comprehensive plan on immigration controls. Brexit was about immigration more than any other issue. This is because immigration is linked to transnational crimes like terrorism, human trafficking, drug trafficking among others. The levels of unemployment globally have also made various countries home to many economic migrants who then demand immigration reforms. On our own continent, the issue of xenophobia in South Africa simmers on.

Currently, there are only 13 countries in Africa that are open to all Africans visa free and only one regional bloc, the Economic Community of West Africa States (ECOWAS), has a fully functional regional passport. The East African Community (EAC) has an East African Passport that is mainly used by Kenyans, Ugandans and Tanzanians but rarely used by Rwandese and Burundians. Despite this, an e-passport has recently been launched in the region. The e-passport is expected to replace respective national passports of partner states (Kenya, Rwanda, Burundi, Tanzania and Uganda) by 2018. It will then be interesting to see the nexus between the EAC and AU passport by the year 2020. Even with these developments, the EAC member states still display elements of distrust for citizens of partner states particularly on work authorization, right of settlement and land ownership. Indeed, across the continent, it is seemingly easier for non-Africans to get a visa or work permit than it is for Africans.

It is therefore my considered opinion that whereas the idea of a united Africa where visa requirements are eliminated is noble, the reality is that this will take a considerable period to be realized. It will require major concessions from each country and the inescapable reality is issues of transnational crimes and corruption will complicate the process. All countries need to ensure that systemic weaknesses in any of the 54 countries do not give the wrong individuals a passport to traverse Africa wrecking havoc through terrorism, drug or arms trafficking. This however, should not kill the dream; we should all advocate for a meticulous and inclusive process on the best way possible to have a United State of Africa. Perhaps a starting point is to ensure that we perfect the regional passports and build them up to the continental one.

George M. Mucee is an Immigration Consultant and practice leader at Fragomen Kenya Ltd.