STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY Identity ‘vetting’ in Kenya Kenya’s administration of identification has faced much criticism from African and international human rights institutions and from Kenya’s own human rights institutions and civil society organisations. Among Kenya’s own constitutional and other official government bodies, discrimination, corruption and inefficiency in the administration of national identity cards have been condemned by the Truth, Justice and Reconciliation Commission (TJRC); the Kenya National Commission on Human Rights; the Commission on the Administration of Justice (Ombudsperson), and the Ethics and Anti-Corruption Commission.108 The TJRC report of 2013, for example, recorded “evidence demonstrating that communities in North Eastern and Upper Eastern regions of the country and Muslims in general have suffered discrimination for decades in relation to their right to citizenship and associated identity documents.” Moreover, “Even Somalis who have for decades lived outside Northern Kenya face similar challenges of accessing national identity cards.”109 The TJRC also reported the conclusions of a committee appointed in 2007 by President Mwai Kibaki to look into concerns of the Muslim community, which made robust findings and recommendations on discriminatory practices in the issue of national identity cards and passports.110 The Registration of Persons Act 1947 has been amended many times, but has not been replaced and retains its original framework of control of persons. Section 5 of the current version of the Act requires people to declare their “race or tribe” in order to obtain an ID card; Section 8 empowers registration officials to require a person to furnish “documentary or other evidence of the truth” of any information provided. Vetting committees are established to verify citizenship before an ID card will be issued in border regions (including the Indian Ocean coast), or in neighbourhoods known to host people of foreign origin, such as Kibera in Nairobi (serving the Nubian community), or people belonging to communities which exist on both sides of one of Kenya’s borders. These committees consist of the Deputy County Commissioner (who chairs the meeting), County Registration Officer (who acts as secretary), representatives of the civil registration authority, of the police and intelligence agencies, and of the Immigration Department (in areas where they are present), and the chief of that location (a national government administrative officer appointed by the Public Service Commission111). In addition, the vetting committees include elders of the local community, to confirm an individual’s membership of that community.112 There is no independent judicial element. However, a rejection can be administratively appealed to the County Commissioner and then to the Director of the National Registration Bureau (NRB). Since the adoption of the 2010 Constitution, which provides that every citizen has the right to an identity card (Article 12(1)(b)), decisions of this type are subject to judicial review by the High Court. Vetting procedures were established administratively until amendments to the Registration of Persons Act adopted in 2014 provided for “identification committees […] to assist in the authentication of information furnished by a parent or guardian”. The same amendments gave powers to the NRB Director to cancel identity cards in a range of circumstances, with a right to administrative and judicial appeal.113 108 Ethics and Anti-Corruption Commission, Examination Report on the Systems, Policies, Procedures and Practices of the Ministry of Immigration and Registration Services, April 2006; Kenya National Commission on Human Rights (KNCHR), An Identity Crisis? Study on the Issuance of National Identity Cards in Kenya, 2007; KNCHR, Out of the Shadows: Towards Ensuring the Rights of Stateless Persons and Persons at Risk of Statelessness in Kenya, 2010; Final Report of the Truth, Justice & Reconciliation Commission of Kenya (2013), Volume IIC, Chapter 3; Kenya Commission on Administrative Justice (Office of the Ombudsperson) Stateless In Kenya: An Investigation Report on the Crisis of Acquiring Identification Documents in Kenya, 2015. 109 TJRC Report, Vol. IIC, Chapter 3. 110 The report of the committee was not officially published, but a leaked copy of the report, dated 31 March 2008, forms an appendix to Chapter 3 of the TJRC Report Vol. IIC. 32 111 National Government Coordination Act No. 1 of 2013, Section 15(2). 112 Interview, National Registration Bureau, 20 March 2017. 113 Security Laws Amendment Act 2014, Section 23, amending the Registration of Persons Act, Section 8. UNHCR / September 2018