CHAPTER ONE: INTRODUCTION Background of the Study Nationality provides the link between an individual and international as well as domestic laws. Every individual has a right to a nationality in order for him or her to enjoy all the rights that are due to citizens. A stateless person is defined by Article 1 of the 1954 Convention relating to the Status of Stateless Persons (‘Stateless Persons Convention’) as one ‘who is not considered as a national by any State under the operation of its law’.13 As of January 2009, there were 12 million stateless persons in the world — those who do not possess any nationality (stateless persons in law) or have no State that they could turn to for protection (stateless persons in fact).14 Unlike citizens, stateless persons often have very limited rights in the countries or territories that they find themselves in. Stateless persons ‘often live in a precarious situation on the margins of society’.15 In order to alleviate the suffering of persons at risk of statelessness, multiple legal instruments have been adopted at the international and regional levels. Efforts to formally protect stateless persons can be traced back to 1948 at the promulgation of the Universal Declaration of Human Rights (‘UDHR’).16 Article 15 of the UDHR declares that every person shall be entitled to a ‘nationality’. It further prohibits states from See article 1(1) of the Convention Relating to the Status of Stateless Persons, 6 June 1960, 360 U.N.T.S. 117 (entered into force 6 June 1960). 14 See UNHCR, ‘Stateless People Figures’, available at http://www.unhcr.org/pages/49c3646c26. html (accessed 21 August 2009) and the 2008 Global Refugee Trends, available at the UNHCR public website. By contrast to stateless persons, a refugee is any person who has been forced to leave his or her home state owing to armed conflict and/or persecution. See the OAU Convention on the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government at its Sixth Ordinary Session (Addis Ababa, 10 September 1969) (entered into force 20 June 1974). An internally displaced person is one who has been forced to move from his or her habitual place of residence ‘in order to avoid the effects of armed conflict, situations of generalized violence [or] violations of human rights, and who has not crossed an internationally recognized border’. See preambular paragraph 2 of the Guiding Principles on Internal Displacement, UN doc E/CN.4/1998/53/Add.2 of 11 February 1998. Notably, these categories of persons are not excluded from the international protection regime offered by the Stateless Persons Convention. There are many refugees and IDPs who are simultaneously stateless but in the case of stateless refugees the more favourable conditions of the 1951 Convention Relating to the Status of Refugees apply to them. Excluded from the protective refugee regime are those who have committed crimes against peace, war crimes or crimes against humanity and serious non-political crimes outside their country of residence as well as those who have been guilty of acts contrary to principles and purposes of the United Nations. See article 1(2)(c) of the Stateless Persons Convention. Persons who do not have effective nationality and do not enjoy national protection of state(s) with which they have genuine links are considered to be de facto stateless. 15 UNHCR, ‘Stateless People in Figures’, ibid. 16 Universal Declaration of Human Rights (‘UDHR’), UNGA Res 217 A, GAOR, 3d Sess., 183 plen. Mtg., art 22 UN Doc. A/810 (1948). 13 3 OUT OF THE SHADOWS TOWARDS ENSURING THE RIGHTS OF STATELESS PERSONS AND PERSONS AT RISK OF STATELESSNESS IN KENYA