CHAPTER TWO: OBTAINING KENYAN NATIONALITY AND IDs: PROCESS AND PRACTICE Right to Nationality: Kenyan Constitutional Framework The right to nationality is well-established in international law. Beginning with the UDHR, 52 subsequent international and regional treaties, in particular the ICCPR,53 CRC,54 the Convention on the rights of Persons with Disabilities (‘CRPD’)55 , CERD56 and the CEDAW57 as well as the ACRWC,58 contain provisions that seek to promote the realization of this entitlement. International law, however, provides only the substance of this right. Procedural aspects, particularly those surrounding definition of nationals and acquisition of nationality, are governed by domestic legislation on citizenship and registration of persons. Multiple procedures govern the process of obtaining Kenyan citizenship. The current Constitution prescribes three modes by which a person can obtain Kenyan citizenship at birth,59 by registration and by naturalization. Chapter VI of the Kenyan Constitution, which sets out the principles relating to citizenship, starts out by describing who was to be considered as a Kenyan citizen at the time of independence in 1963. Any person who was born in Kenya to parents who are citizens of the United Kingdom and its colonies or protectorates as of 11 December 1963, were to be considered as a Kenyan citizen, provided one of his or her parents was born in the country.60 An individual born overseas was also a citizen, provided the person’s fathers ‘becomes, or would but for his death have become a citizen of Kenya at independence.61 Persons with a connection to Kenya were also eligible to apply for citizenship, as long as they applied by 13 December 1965.62 If an eligible person failed to apply for registration by the designated date, then the chance of acquiring citizenship was altogether lost not only by the applicant but also by any child, if both parents are non-nationals. See article 12 (‘everyone has the right to a nationality’). See article 24 (‘every child has the right to a nationality’). 54 See article 7 (children have ‘the right to acquire a nationality. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless’). 55 See Article 18 (‘States parties shall recognize the rights of persons with disabilities to … a nationality …”). 56 See Article 5 (d) (iii) 57 See article 9 (‘granting women equal rights with men to acquire, change or retain nationality’). 58 See article 6 (‘every child has the right to acquire a nationality’). 59 In the Kenyan context acquisition of citizenship by birth is based on descent (jus sanguini). 60 Section 87 of the Constitution. 61 Ibid section 87(2). 62 Ibid section 88. 52 53 11 OUT OF THE SHADOWS TOWARDS ENSURING THE RIGHTS OF STATELESS PERSONS AND PERSONS AT RISK OF STATELESSNESS IN KENYA