Celebrating Citizenship Bills?

‘It’s celebration time’, declared the Minister for State for Immigration and Registration upon receipt of five draft Bills on citizenship and related provisions of Kenya’s Constitution 2010. By 15 July, 2011 the jubilation was even infectious among a few Civil Society Organisations (CSO) that had been frustrated tracking the work of a Task Force entrusted with the development of the citizenship Bills. There had been an open mistrust between the CSOs and the Task Force which the Minister gazetted on 20 December, 2010. The Task Force commenced work in January 2011 and delivered the five draft laws by mid July 2011.

Two Bills, the Kenya Citizenship and Immigration Bill, 2011 and the Kenya Citizens and Foreign Nationals Management Service Bill, 2011 are among the many that were enacted into law by 27 August thereby operationalising Chapter 3 of the Constitution on Citizenship. The remaining three drafts Bills: namely the Identification and Registration of Kenya Citizens Bill, 2011; the Births and Deaths Registration Bill, 2011; and the Kenya Refugee Bill, 2011; are pending and await deliberation by Cabinet and Parliament. Indeed, when all the citizenship laws are in place and have achieved their intended goals, there should be even greater celebration.

THE GAINS IN THE CITIZENSHIP LAWS

Giving life to Chapter 3 of Kenya’s Constitution 2010 within the specified time is positive, in addition to other gains. Despite the lack of resources, the Task Force conducted an extensive consultation responding well to its Constitutional obligation under Chapter 3, and to its terms of reference. It came up with a Bill that legislates on dual citizenship, foundlings, refugees and the stateless population in Kenya. It set limits on the claiming of Kenyan citizenship by birth on Kenyan descents born outside the country. While urging both the Constitutional Implementing Commission (CIC) and the Cabinet to adopt the draft Bills, the Minister pointed out that the Bills will address long standing problems surrounding citizenship such as statelessness (the lack of legal recognition) and discrimination.

In Kenya citizenship has been closely associated with discrimination, mainly on gender, ethnicity and race. Both constitutions proscribe discrimination but the former constitution granted citizenship based on paternal descent, thus creating gender discrimination. In the 2010 constitution women can confer citizenship on their children or spouses. The five Bills therefore have had one aim which is to protect these constitutional gains. However, ethnic and racial prejudices are embedded in our social practices making it much more difficult to eradicate.

For its part, statelessness in Kenya arises from a combination of factors. First, it is historical and relates to state succession. The Independence Constitution defined Kenyans by birth (automatic) as those who were born in Kenya or were of Kenyan descent. Any person born in Kenya at, or prior to, independence was deemed a Kenya citizen if at least one parent of such a person was a British protected person. Section 89 of the Independence Constitution also provides that any person born in Kenya after 11 December, 1963 will be a Kenyan citizen if at least one of the parents was a Kenyan citizen. In addition, that Constitution also provided for people with citizenship of a Commonwealth country to register, while those with habitual residency and family or business ties could naturalize.

Second, rather than Kenya determining who was/were British protected people as stated in the Independent Constitution, Kenya focused on tribes and descent to determine who automatic citizens were. This resulted in the discrimination of migrants. Should ‘tribe’ be the key factor for Kenyan citizenship today? This has always been a major question. Since independence, the Kenya Government has chosen not to reach out to several groups which it regarded as migrants to explain their citizenship status. Instead, it focused on registration of persons on ethnic grounds. Since independence the Government has created obstacles in accessing Identity Cards to a number of migrant communities such as Nubians, Makonde, Kenyan Somalis, South Asians, and Kenyan Arabs, among others. People of mixed race also find it difficult to claim citizenship, or access citizenship-related documents. Ethnic, racial and administrative practices relating to nationality documents have been the leading causes of statelessness. The Citizenship and Immigration Law, 2011 however, adequately offers ways to resolve statelessness in all generations of migrants and people historically not recognized as Kenyans.

THE CHALLENGES WITH THE BILLS

In Kenya, as in many African states, the challenge of creating a citizen based nation remains a challenge despite many years of self rule. At independence the citizenship laws in Kenya defined a citizen as one born in the country and to Kenyan parents. In practice however automatic citizenship became a subject of ethnic identity. Those born of the so-called 42 ethnic groups became automatic Kenyans. Those without such an affiliation either assimilate or have had to constantly prove their Kenyan-ness – a category which is neither defined nor provable.

Who is a Kenyan and what makes one a Kenyan? None of the five Bills defines a Kenyan citizen. The citizenship and immigration Bills refer to provisions of the Constitution which has not defined who is a Kenyan. Essentially, there is no clear definition of who a Kenya is. Is ones tribe the proof of Kenyanness? What about race? What happens to foundling that the Constitution confer citizenship without reference to their parents? In these times of war, xenophobic tendencies and regional balance in public sector these questions assumes even bigger significance but remain unanswered.

The lack of outright definition of who is a Kenyan perhaps indicates the challenges that come with a definition in a multi-racial, multi-ethnic and secular but with religious mindset state. In other jurisdictions in the continent of Africa, citizenship has been defined in a narrow nomenclature such as ethnicity and this has led to many conflicts. Sierra Leone citizenship is based on Negro-descent; in Uganda citizenship is based on recognized ethnic groups. The longest civil war in the former Sudan was partly the outcome of Sudan being defined as an Arab state – and so de facto negating the right of black Africans to acquire citizenship. Like pouring new wine in an old skin; the challenge facing Kenya’s progressive citizenship regime is not just a problem of creating laws, but more so that of changing practices and attitudes.

The burden to prove one’s nationality in Kenya has, and continues to be, on the applicant. The draft Identification and Registration of Kenya Citizens Bill, 2011 maintains the practice and also factors in ‘tribe’ as an element for determining and registering a citizen. Being born in Kenya does not make one an automatic citizen because to possess a Kenyan birth certificate is not a proof of citizenship. For a Kenyan, in the absence of outright citizenship documents, one can only establish citizenship through descent.

There is an emerging practice on regional balancing in state jobs. The main criteria used are one’s ethnicity or birth place as stated in one’s Identity Card. Such descriptions often reflect one’s parents’ particulars not necessarily where a citizen resides or earns his/her livelihood. Many people acquire ID cards at the age of eighteen when they are students; but only later attain a fixed geographical identity. In an article ‘Who’s County? The Challenge of County Citizenship’ - Part of the National Cohesion and Integration Commission’s Ethnic and Race dialogue in Kenya - Joyce Nyairo decries Kenya’s obsession with ethnic and regional identity. She points out that such practices are counter productive to national cohesion because they create a notion of fixed identities. In the new dispensation of devolution it creates the concept that counties are mono-ethnic, which is not true. Identity and internal migration being fluid, she concludes that an identity is what one becomes, not what one was. Thus, demanding that people be identified by their tribe and/or fixed region of birth undermines the very integration that Kenya so badly needs. She further emphasised the emergence of a new culture that is urban; a collective of the best of what can be regarded as ‘Kenyan’ and which has no reference to tribe. Thus, embracing such a culture may be a way of curbing discrimination and ethnic violence in the process of establishing county governments.

In a multi racial society like Kenya is it really necessary to collect data on one’s tribal background? Has such data ever helped the country? No! Hence those without recognized tribes or descent have always had problems proving their right to Kenyan citizenship. For instance, in the course of Kenya’s War against the Al-Shabaab in Somalia; Kenyans of Somali descent have to provide evidence of their nationality. The ID card is one such documentary evidence. But in a community without documents that often must prove its Kenyan affiliation, and sometimes justify even its physical presence, many of its members become victims of the xenophobia from state authorities. Thus, the continuing reference to ‘descent’ and ‘tribe’ in determining the citizenship of people born within Kenya is a relic of our colonial past whereby racial and ethnic discrimination and statelessness is manifested. Orphaned children over the age of eight not having proof of parental documents may become the next stateless population.

MISPLACED OPTIMISM

It is not misplaced to celebrate progress toward a clear right to citizenship in Kenya. Lately, Kenyans have been privy to several happy and proud happenings such as the Constitutional promulgation, the Brand Kenya Initiative, the Kenyans for Kenya campaign to save the hungry in Northern Kenya; among others. Most of these initiatives are a correction of errors we have made in our past. The long term goals of building a nation state; developing a cohesive society based on equality; and forging a citizenry that socializes on the basis of its legal identity are processes which will remain a challenge if we continue basing our nationality on our ethnicity.

As a mosaic of cultures, faiths and populations, Kenya is a country of migrants – the only difference being the point and time of entry. Focusing on descent and tribe to determine citizenship is retrogressive and exclusionary; it has created second class citizens and stateless populations, and endangered our integration as one nation. However, by restoring citizenship as the supreme bond between the people and the state in Kenya, the country can be taken to a higher level of cohesion and integration – we surely then will celebrate even more enthusiastically.

Note: Growing up in Kenya, Adam Hussein Adam received several attractive offers: a place on the national rugby team, a scholarship to study in New Zealand or work for international organisations in the Middle East and Somalia. He was unable to realise any of his dreams for one simple reason: he could not get a passport.
Adam is a Nubian, whose ancestors were brought to Kenya from Sudan by the British during their scramble for empire in the late 19th century.

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* Hussein Adam is an equality rights champion who has focused his work on cultural communication, diversity and inclusion; and Earth Jurisprudence. He is the current Citizenship Statelessness Program Coordinator at the Open Society Initiative for Eastern Africa. He can be contacted at [email protected].
* This article was first published by Awaaz Magazine.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.