education.151 Both should be guaranteed to Nubian children on equal terms with children in
comparable communities.
Finally, the African Committee explained that when assessing the consequences of the nonrecognition of the nationality of children of Nubian descent, the widespread and systematic
denial of the right of nationality over several generations, calls for actions that address the
long-term effects of this past practice.152
In sum, case law in Africa resonates with that in the Americas. African bodies entrusted with
ensuring State compliance with human rights have emphasized that each human right
(including nationality, identity, and non-discrimination) creates obligations on the part of
the State to respect, protect and fulfill. Hence, the consequential violations of the rights to
nationality and/or non-discrimination are very much part of the case law analysis. This is a
worthy application of the principle of indivisibility of rights according to which
discriminatory treatment and/or denial of nationality impacts on the enjoyment of other
human rights, often with harmful effects. Thus, the African Commission on Human and
Peoples’ Rights has held States accountable to provide reparation for the harm caused by the
arbitrary deprivation of nationality in the context of systematic violations of human rights,
ethnic discrimination and forced expulsion. It considers that whilst the recognition of the
right to return in safety must be welcome, it is not enough to annul the violation committed
by the State. Diligent measures should include amongst others, the issuance of new ID
documents and the restitution of the belongings looted from them after they were expelled,
compensation for the damage sustained, and the reinstatement of the rights to work. The
African Committee of Experts on the Rights and Welfare of the Child too assesses both the
act of denial of nationality and the consequences of the act. Thus, it found the denial of
citizenship of Nubian children to violate the right to nationality, the right to a name,
protection against non-discrimination and protection against statelessness. It then
considered the consequences of the non-recognition of the nationality of children of Nubian
descent, by reference to the widespread and systematic denial right of nationality over
several generations, and held that the principle of non-discrimination requires the children
affected to be recognized their essential socio-economic rights (i.e., health and education), on
equal terms with children in comparable communities.
3.3 The European Court of Human Rights
The 1950 European Convention on Human Rights (ECHR), like the African Charter on
Human Rights, does not include an explicit provision on nationality. However, the Council
referring to two judgments of the African Commission on Article 16 of the African Charter on Human and
Peoples’ Rights: Purohit and Moore v The Gambia, Communication 241/2001; and Free Legal Assistance Group and
Others v Zaire, Communications No 25/89,47/90, 56/91, 100/93.
151 Article 13, African Children Charter, also interpreted widely to include access to free (and compulsory) basic
education in schools, with qualified teachers and necessary equipment. Paras.63-4, referring to the judgment of
the African Commission in Free Legal Assistance Group and Others v Zaire, Communications No 25/89,47/90, 56/91,
100/93.
152 Nubian Children v Kenya, para.68.
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