CHAPTER SIX: FINDINGS AND RECOMMENDATIONS This study makes the following findings and recommendations: Finding One: the Legal and administrative framework is not adequate to deal with the issue of Statelessness in the country Kenya has not ratified the Stateless Persons Convention and the Convention on the Reduction of Statelessness to protect stateless persons and prevent as well as reduce the occurrence of statelessness. It is however party to the ACRWC, CRC, ICCPR, CEDAW and the Banjul Charter. With regard to the CRC and the Convention Relating to the Status of Refugees, Kenya has translated their provisions into national law through the Children’s Act and Refugees Act. Considering that the provisions of treaties do not apply automatically in dualist (unlike monist) states, new legislation or change of legislation would be required to translate the provisions of these treaties into domestic law.220 In addition to defining ‘statelessness’, this legislation should also contain provisions that grant fundamental rights and freedoms to protected persons. Drafters should draw on legal history, 221 provisions of international human rights law and the bill of rights that is contained in the national constitution. Comparative experiences could also come in handy.222 There is also need for the law to specify clearly the document that accords citizenship in Kenya. Finding two: nationality laws in Kenya discriminate against various categories of persons and lack safeguards against statelessness The requirement in the current constitution that only Kenyan fathers can transmit citizenship to their children if born overseas is discriminatory. The law needs to be changed in order to deal with the impact of this requirement. Few concrete steps have been taken to operationalize section 96 of the Constitution,223 which mandates See Okunda v Republic (1970) EA 457 at 460 (‘The provisions of a treaty entered into by the Government of Kenya do not become part of the municipal law of Kenya save in so far as they are made such by the law of Kenya’). 221 Robinson, supra, note 34; Batchelor, supra, note 34; Weis, supra, note 34; Linda Keber, ‘Towards a History of Statelessness in America,’ (2005) 57 American Quarterly 727. 222 Christopher Richter, ‘Statelessness in Australian Refugee Law: The (Renewed) Case for Complementary Protection, (2005) 24 University of Queensland Law Journal 545; Julia Hess, ‘Stateless and the State: Tibetans, Citizenship, and the Nationalist Activism in a Transnational World’, (2006) 44 International Migration 79; Robyn Linde, ‘Statelessness and Roma Communities in the Czech Republic: Competing Theories of State Compliance’, (2006) 13 International Journal on Minority and Group Rights 341; Bronwen, supra, note 47. 223 According to the Immigration Department, a draft bill has already been submitted to the AttorneyGeneral for onward transmission to Parliament. The suggested proposals (on file with this study’s 220 38 OUT OF THE SHADOWS TOWARDS ENSURING THE RIGHTS OF STATELESS PERSONS AND PERSONS AT RISK OF STATELESSNESS IN KENYA