Parliament to: ‘Provide for due acquisition of citizenship of Kenya (whether by registration or naturalization) by persons who are not eligible or who are no longer eligible
to become citizens [under the Constitution and citizenship laws].’
Constitution and citizenship laws of Kenya have not been amended to make provision
for the acquisition of citizenship by any individual born in the country, who would
otherwise be stateless. 224 Section 90 of the Constitution provides that a person born
outside Kenya shall become a Kenyan citizen if at the date of birth his or her father is a
citizen of Kenya. It is of concern that this section may have been interpreted by some
to mean that children born in Kenya out of unions between Kenyan women married
to foreign nationals do not qualify for Kenyan citizenship. 225 The constitutional requirement that Kenyan nationality can be gained by foreign women who are married
to Kenyan men only should also be removed. Courts have contended that the effect
of such a requirement is to ‘punish’ a citizen for ‘marrying’ a foreigner. 226
The Government should undertake legal measures that will protect any child from
becoming ‘stateless’. 227 Parliament should amend section 90 of the Constitution
to make any child born of a Kenyan parent eligible for citizenship. The Constitution
should also provide that every child who would otherwise be stateless be considered
for Kenyan citizenship. 228
Stakeholders, including NGOs, faith based organizations, labour organizations, legal
aid agencies and lawyers’ organizations, academics and experts, and media houses
should continue pursuing the cause of constitutional and legislative change. These
institutions ‘all have a major influence on any statelessness situation’. 229
The Proposed Constitution of Kenya, 2010, whose provisions outlaw discrimination of
citizens, if adopted at the referendum of 4 August 2010, will go a long way in addressing some of the challenges identified in this study.230
consultant) are designed to deal ‘substantively’ ‘with the issue of statelessness’ through ‘addressing
the emerging challenges rather than turning away applicants due to a disability in law’.
224
To be consistent with Article 1 of the 1961 Convention on the Reduction of Statelessness. According
to information from the Immigration Department, efforts towards this end are already underway.
225
See, for instance, supra, note 33
226
Attorney-General v Unity Dow (2001) AHRLR 99 at 101 (per Amissah JP of the High Court of Botswana). See also article 7(2) of the CEDAW urging States to ‘grant women equal rights with men with
respect to the nationality of their children’.
227
See the CRC article 9(2) and ACRWC article 6 (4).
228
To be consistent with Article 7 of the CRC and Article 6 of the ACRWC.
229
UNHCR, UNHCR Action to Address Statelessness: A Strategy Note (March 2010) at 20.
230
See post script to this report.
39
OUT OF THE SHADOWS TOWARDS ENSURING THE RIGHTS OF STATELESS PERSONS AND PERSONS AT RISK OF STATELESSNESS IN KENYA
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