STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY Somali Kenyans and Somali refugees The group perhaps at most risk of statelessness in Kenya today are those of Somali ethnicity; though it is sometimes difficult to draw a clear line between the generalised discrimination faced by Somali Kenyans and a specific risk of statelessness. The situation of Somali Kenyans is greatly complicated by the presence of a very large Somali refugee population in the country, and by the security risks created by the Al-Shabaab militant Islamist group based in Somalia. Many of the Somali community in Kenya belong to communities who have always lived in the territory of what is now Kenya. An international border was drawn through their territory by the British and Italians. There is also a community of Isahakia (Isaq) Somalis originating from Somaliland (mainly living in Isiolo, but some also in Naivasha and elsewhere across the country), who are recognised as Kenyan. They were British protected persons and thus enjoyed a different status from other Somali immigrants during the colonial period; most would have automatically become Kenyan under the transitional provisions at independence.206 Nonetheless, some of this group have faced difficulties in obtaining recognition as citizens.207 Finally, there is a large refugee population resident in Kenya that has fled Somalia at different times since the collapse of the Somali state in the early 1990s. Some have now lived in Kenya for 25 years; others are more recent arrivals; many have been born in Kenya and never visited Somalia. This population, estimated to number more than 526,932 people as at June 2018,208 mainly lives in the Dadaab camp in Garissa County in north-east Kenya, but also in the Eastleigh neighbourhood of Nairobi and other areas. The former North Eastern Province of Kenya has long been a zone of insecurity, living under a state of emergency for several decades since soon after independence. In 1989 (prior to the large influx of refugees), the Office of the President ordered a comprehensive screening process for all Somali-Kenyans. The screening process took place before panels of elders who questioned applicants on their family history, lineage, and knowledge of Kenya. Those successful were issued with pink identity booklets, to be carried along with the regular Kenyan identity card. The Task Force submitted to the registrar a list of persons whose registration records were cancelled, detained and deported.209 Many whose Kenyan citizenship was not in doubt had their documents confiscated and not returned as a result of this screening. These included several dozen members of the Galje’el Somali community resident in the Tana River area for some decades, now multiplied by family increase to a group of several hundred who are unable to obtain Kenyan national identity cards.210 In a constitutional petition heard in 2013, the High Court ordered that, given that the state had not contested that the applicants were citizens, they had a right to national identity cards.211 Although the National Registration Bureau issued cards to the two named plaintiffs in the case in accordance with the court order, as of June 2016 no further action had been taken to issue the others with documents.212 In 2017, the High Court in Mombasa found in another petition brought on behalf of the Galje’el that the plaintiffs’ right to fair administrative action under Article 47 of the 206 E.R. Turton, “The Isaq Somali diaspora and poll-tax agitation in Kenya, 1936–41” African Affairs, Vol. 73, No. 292, 1974, pp. 325346. See also Antony Gitonga, “One hundred years of solitude and sufferance”, The Standard (Nairobi), 25 August 2010. 207 See “Government to recognize the Isahakia community as Kenyans”, K24 TV, 29 October 2016. 208 Somalia Situation Operational Portal, UNHCR, available at: https://data2.unhcr.org/en/situations/horn/location/178. 209 See generally, Human Rights Watch, Screening of Ethnic Somalis: The Cruel Consequences of Kenya’s Passbook System, 5 September 1990; Emma Lochery, “Rendering difference visible: The Kenyan state and its Somali citizens”, African Affairs, Vol. 111, No. 445, 2012, pp. 615–639. 210 Banditry and the Politics of Citizenship: The Case of the Galje’el of Tana River, Muslims for Human Rights (MUHURI), Mombasa, 1999; TJRC Report, Vol. IIC, paragraphs 66-70. 211 Hersi Hassan Gutale & Another v. Attorney General & Another, High Court at Nairobi (Nairobi Law Courts) Constitutional Petition 50 of 2011, 21 January 2013. A court challenge under the former constitution had been rejected: Hersi Hassan Gulate and Abdullahi Mohammed Ahmed v Principal Registrar of Persons & Attorney General, Nairobi HC Misc. Application No. 774 of 2004. 212 Interviews, Tana River, June 2016. UNHCR / September 2018 53