2.
Institutionalised Arbitrariness
Judicial oversight is particularly critical in the context of citizenship determination, where decisions
have life-altering consequences. The right to nationality is a gateway right—its denial may lead
to statelessness, prolonged detention, and exclusion from access to other fundamental rights. As
emphasised in Chahal, the absence of judicial safeguards in such cases exposes individuals to
severe risks, including torture or inhuman treatment. Citizenship determination procedures must
therefore include judicial guarantees to ensure fairness, transparency, and accountability.
The Committee on Economic, Social and Cultural Rights (CESCR) has similarly affirmed the
importance of judicial remedies in contexts where administrative processes alone render rights
ineffective. It has identified judicial recourse as indispensable in cases of discrimination.86 While
administrative remedies may be acceptable in some contexts, they must meet strict criteria of
accessibility, timeliness, and procedural fairness. Moreover, such mechanisms must include provision
for judicial appeal wherever necessary. The burden lies on States to justify why judicial remedies are
not appropriate—particularly in cases involving serious human rights concerns.
Taken together, these international norms clearly require that mechanisms adjudicating citizenship
claims be subject to meaningful judicial oversight. Administrative bodies may play a role, but they
must operate under conditions that replicate the procedural safeguards found in judicial forums.
Under international practice, administrative bodies handling citizenship in other jurisdictions are
both established and regulated by law. In Canada, for instance, decisions on citizenship are made
by administrative bodies under the Citizenship Act, 1985, within the Immigration, Refugees and
Citizenship Canada (IRCC) framework.87 These decisions follow clearly defined statutory criteria and
are subject to judicial review by the Federal Court, embedding procedural fairness within a legislative
regime.
In Kenya, under Article 21(1) of the Kenya Citizenship and Immigration Act, the Cabinet Secretary
may revoke citizenship acquired by registration only on constitutionally prescribed grounds,88 and
only following a recommendation by the Citizenship Advisory Committee (CAC).89 The law mandates
that individuals be given written notice and an opportunity to respond before revocation,90 thereby
instituting procedural safeguards against arbitrary action. The requirement that the Cabinet Secretary
act only on the CAC’s recommendation91 exemplifies the legal insulation of citizenship adjudication
from unilateral executive discretion.
These examples demonstrate that administrative decision-making on citizenship, where permitted,
is accompanied by statutory mandates, procedural checks, and the availability of appeal. Where
86
87
88
89
90
91
UN Committee on Economic, Social and Cultural Rights (CESCR), General comment No. 20: Non-discrimination in economic, social and
cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20, 2 July 2009, para 40.
Department of Citizenship and Immigration Act, 1994, S.C. 1994, c. 31; Immigration, Refugees and Citizenship Department.
Kenya Citizenship and Immigration Act 2011, s 21(1).
ibid s 21(2).
ibid s 21(3).
ibid s 21(1).
45
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