Cassadee Orinthia YAN
International Comparative Jurisprudence. 2024, 10(1):94-111.
The Kenyan Citizenship and Immigration Act of 2011 recognizes stateless persons under Article 15, and the
Kenyan Constitution has taken steps to eliminate gender discrimination in the naturalization process. However, the
Act is notable for the critical lack of information explaining the vetting process that must be completed in order to
acquire citizenship. This omission has hindered the effective implementation of the law in dealing with the problem
of stateless individuals. The Kenyan Citizenship and Immigration Regulations of 2012 also provide limited
guidance on how to apply to the Cabinet Secretary when seeking citizenship through registration, as highlighted by
the African Committee of Experts on the Rights and Welfare of the Child (2017, p. 8).
According to Masabo (2021), Kenya’s citizenship laws are primarily based on the principle of jus soli, granting
citizenship to those born on Kenyan land. For those who cannot prove that they were born on Kenyan land,
determining their citizenship can be daunting. Masabo further argues that Kenya’s lack of a comprehensive
legislative framework for the prevention of statelessness and the protection of stateless people exposes many
individuals to risks. He points out that ‘Kenya’s legal regime falls short of adopting international standards on the
prevention of statelessness and the protection of stateless persons, as set out in various international and regional
instruments’ (p. 514). The historical legacy of an ‘ancestor-centric’ approach in Kenya’s citizenship regulations,
prioritizing lineage from Kenyan citizens over place of birth, continues to impact citizenship rights, particularly for
vulnerable individuals. Masabo highlights the challenges faced by individuals born in Kenya to non-Kenyan
parents, who often find themselves at risk of statelessness or who are themselves stateless. Hunter (2019) also
examines the statelessness issue in Kenya, shedding light on the situation of undocumented nationals who have
lived in Kenya for many generations but lack official citizenship. Hunter points out that the Kenyan government
passed the 2011 Refugees Bill and the 2011 Citizenship and Immigration Act to combat statelessness. However,
practical flaws and administrative delays have hindered the effective protection of stateless people. Hunter (2019)
emphasizes that ‘Kenyan law lacks the necessary clarity and specificity to provide sufficient protection to
undocumented nationals, leading to their ongoing marginalization and exclusion’ (p. 157).
The CESF Consortium (2021) conducted a study on the impact of the COVID-19 pandemic on stateless individuals
in Kenya. The pandemic exposed the lack of access to healthcare, social security, and necessary documentation
experienced by stateless people, rendering them even more vulnerable. The research revealed the inadequacies of
Kenya’s legal and administrative frameworks, which fail to provide meaningful assistance and recognition to
stateless individuals. It also emphasized ‘the urgent need for Kenya to address the legal and administrative barriers
that perpetuate statelessness to ensure that stateless individuals can access healthcare, employment, and social
protection’ (p. 12). Lockdown measures and travel restrictions further marginalized these communities, leaving
them without sufficient support and safety measures. It is crucial to include stateless people in national crisis
response plans that safeguard against events such as the COVID-19 pandemic, and to implement legislative reforms
urgently to protect their rights and well-being.
Kenya has undertaken efforts to address the issue of statelessness. Masabo (2021) highlighted that the passage of
laws such as the 2011 Citizenship and Immigration Act and the 2011 Refugees Bill demonstrates Kenya’s
commitment to protecting and preventing statelessness. These legislative frameworks outline processes for birth
registration, nationality determination, and, in some instances, granting citizenship. However, challenges related to
administration, lack of awareness, and implementation flaws hinder the effectiveness of this legislation.
Center for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois
Welfare Council v. Kenya (2009; hereinafter – the Endorois case) is a pivotal legal battle that directly relates to the
issue of statelessness and citizenship legislation in Kenya. This case brings to light the alleged violation of Articles
17(2) and 17(3) of the African Charter and highlights the disturbing reports of violations inflicted upon the Endorois
community, an indigenous people, including forced displacement from their ancestral land, inadequate
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