D - Case example: Litigating citizenship in Kenya: strategy, targets, evidence and remedies Recognition of citizenship and access to identity documents has been a longstanding challenge for certain minority groups in Kenya considered to have origins outside the country. This includes members of the Nubian community (descendants of Sudanese recruited as soldiers by the British and settled in Kenya); descendants of Mozambican, Rwandan and other migrant workers brought to tea and sisal plantations during the colonial era; a group of followers of a missionary who moved to Kenya in the early years after independence, mainly of Zimbabwean origin and Shona ethnicity; the Pemba community in the coastal zone on the border with Tanzania, with links to the offshore island of Pemba, part of the Zanzibar archipelago; Kenyans of Somali ethnicity; and some members of the Kenyan Asian community who were not able to acquire citizenship under the transitional rules in operation at independence in 1963.87 Civil society representatives from these communities—supported by national human rights NGOs, the Kenya National Commission on Human Rights, UNHCR, and others—have campaigned for the recognition of citizenship over many years. Litigation has been an important element of a multi-pronged strategy involving research and report-writing, street marches, parliamentary petitions and inquiries, public campaigns, individual case work, and direct advocacy with officials. The Nubian Rights Forum first litigated the denial of citizenship documents at national level, and, when that was unsuccessful brought complaints to the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child—first lodged in 2006 and 2009, though decided in 2015 and 2011 respectively.88 The decisions of the continental human rights bodies have been foundational to subsequent advocacy in Kenya for the resolution of the status not only of the Nubians but also of similarly affected groups. The new constitution adopted in 2010, followed by a new Citizenship and Immigration Act in 2011, established provisions that addressed some aspects of past discrimination, including by enabling the registration as Kenyan citizens of stateless persons resident in the country since independence. The constitution and new law also provided the opportunity for further litigation. Cases were brought in the High Court on behalf of Kenyan citizens who had been denied recognition of Kenyan citizenship despite their entitlement in law. These included Kenyans who had also been registered as children in the database of refugees (referred to as the “double registered” Kenyans), often in order to gain access to the services available in refugee camps that were not accessible in surrounding areas, as well as the children of one Kenyan and one refugee parent.89 One strategy supported by the Open Society Justice Initiative in partnership with Namati was the training and ongoing capacity-building of what has become an impressive national network of paralegals able to help individuals to apply for identity documents of any type. Similar paralegal networks have also played an important role in Nepal and Bangladesh (u focus box B). This type of legal empowerment work not only helps the individuals concerned but can generate knowledge about patterns of discrimination in identity document administration to support an application to court, while facilitating communication between lawyers and their clients. A key aspect of any litigation strategy is to document the harms suffered by the affected individuals or groups and to develop an understanding of the remedies required for those harms that can be requested from the court. Paralegal networks can also build on the foundation laid by successful strategic litigation by monitoring the implementation of judgments through their advice work. In Kenya, the Open Society Justice Initiative also supported one of the first efforts to conduct a quantitative survey on the impacts of statelessness among the Nubians 90 A later study by UNHCR and the World Bank demonstrated the disadvantaged situation of the Shona community. 91 While not directly presented as a result of the specific court judgments, the Kenyan government is notable among African states for the different initiatives it has taken to resolve the stateless status of several long-standing stateless groups, including the Makonde, Shona and Pemba—with pledges to take further action and to address the question of discriminatory “vetting” procedures for some groups applying for identity documents.92 The situation of the Nubian community—of which only some members had been stateless, completely unable to obtain recognition of Kenyan Bronwen Manby, “Citizenship and Statelessness in the East African Community”, UNHCR, 2018, https://www.refworld.org/reference/research/unhcr/2018/ en/122374. 87 88 Kenyan Nubian Children’s Case; Nubian Community v. Kenya, both supra n 35. Petitions in the cases available at http://citizenshiprightsafrica.org/kenya-haki-na-sheria-initiative-and-others-v-cabinet-secretary-ministry-of-interior-and-coordination-of-government-and-others-refugee-spouses/ and http://citizenshiprightsafrica.org/kenya-haki-na-sheria-initiative-v-cabinet-secretary-ministry-of-interior-and-coordination-of-government-and-others/. 89 90 Ben Oppenheim and Brenna Marea Powell, Legal Identity in the 2030 Agenda for Sustainable Development: Lessons from Kibera, Kenya (New York: Open Society Justice Initiative, October 2015), https://www.justiceinitiative.org/publications/legal-identity-2030-agenda-sustainable-development-lessons-kibera-kenya. UNHCR and World Bank, ‘Understanding the Socioeconomic Conditions of the Stateless Shona Community in Kenya: Results from the 2019 Socioeconomic Survey’, 2020, https://reliefweb.int/report/kenya/understanding-socioeconomic-conditions-stateless-shona-community-kenya. 91 92 See the documents at the Kenya page of the Citizenship Rights Africa Initiative website: https://citizenshiprightsafrica.org/east-africa/kenya/. 34 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S