[A]dopting an arbitrary measure, such as the vetting process, which has no
basis in Kenyan law, is prone to abuse, and which places significant burdens
on a minority ethnic group and makes them vulnerable to further
marginalization is irrational and consequently unjustifiable (Nubian
Community v. Kenya, 2015, para. 131).
In Kenya the vetting committees are designed as an additional layer on top of the
production of official documents, applied only to some communities. But what are the
grounds on which the decisions of these ‘vetting committees’ and their equivalents
elsewhere may legitimately be based; what are the criteria they could apply to recognise a
person without any documents as a citizen; what legal or paralegal assistance could be
provided to those facing difficulties in proving their status; and what are the systems for
review and appeal? A focus on this regulatory framework should be a priority for any
proposal to strengthen identification systems; yet there is a lack of any international
guidance on such procedures, beyond the conclusions that can be drawn from general due
process principles. The Principles on Identification for Sustainable Development already
support this call, by providing for ‘rapid and low-cost review by independent administrative
and judicial authorities’, but they need reinforcement in detailed content and in application
(a revised version of the Principles was planned for release in 2021).
The requirements go beyond questions of process, and move into the more difficult
challenge of establishing certain minimum rules for the recognition of citizenship. One
reason why Peru’s RENIEC can be inclusive is that Peru is among the majority of Latin
American states that provide a right to citizenship based on birth in the territory.
Registration of birth in Peru is thus the only step needed for Peruvian citizenship to be
established. In most states, however, this is not an absolute right: registration of birth
remains procedurally critical, but the record of the legal status of the parents as citizens of
the state of a child’s birth or of another state is as – or more – important than the place of
birth. If the parents are believed to be of foreign origin but have no documents, and their
presumed states of origin do not recognise them, their children will be stateless without at
least minimum rights based on birth in the territory. States fiercely guard their discretion in
these matters. Yet there is sufficient guidance in international law on the right to a
nationality and the obligation to reduce statelessness to insist on procedures to establish
the nationality of every child, and to grant the nationality of the state of birth if no other
state will do so.
Within the UN system, the UN High Commissioner for Refugees (UNHCR) launched a tenyear campaign to end statelessness in 2014, the year before the SDGs, and has adopted a
series of guidelines and best practices documents interpreting state obligations to end
statelessness and respect the right to a nationality (see resources at UNHCR, n.d.). The InterAmerican Court on Human Rights has issued a number of important judgments on the right
to a nationality (most famously, against the Dominican Republic (Feria Tinta, 2008)). The
various European institutions have issued judgments and guidance protecting the right to a
nationality, including a comprehensive recommendation on the nationality of children (see
resources at Council of Europe, n.d.).
Africa’s human rights institutions have repeatedly condemned arbitrary refusals to
recognise a person’s or group’s nationality. In cases from Côte d’Ivoire, Kenya, Mauritania,
Sudan, Tanzania, Zambia, and elsewhere, they have insisted on the individual right to a fair
hearing and condemned the manipulation of nationality laws to exclude political opponents
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