ANALYSIS Cecilia Ngaiza 25 February 2022
The narration of the black history in relation to the aftermath of colonialism in the post-colonial Africa encompasses the question of damaged identity to some African ethnic communities to the expense of experiencing barriers to the enjoyment of the right to citizenship. A specific example to this dark side of colonial history in Africa is well captured in the case of the Nubian Community in Kenya vs the Republic of Kenya herein referred to as the Nubian Case.[1] This case was filed before the African Commission on Human and Peoples’ Rights (ACHPR) by Open Society Justice Initiative (OSJI) and the Institute for Human Rights and Development in Africa (IHRDA) on behalf of the Nubian community of Kenya.
Colonial Background
The Nubians, whose descendants lived in the Nuba Mountains in central part of Sudan were recruited by the colonial British King’s African Rifles Regiment in the 1900s to assist in British military undertakings across the British East Africa, including the present day Kenya. Upon the dusk of the British colonialism in Kenya in 1963, no resettlement schemes were designed for the Nubians in Kenya by the departing British colonialists, neither were they granted British nationality as it was the case for the recruited Indian labourers who were taken from India to work in the railway projects in the Kenyan soil. Therefore, the Nubians settled and established themselves in various parts of Kenya, multiplied by birth with no traces of where they could return to in the former Republic of Sudan. The Nubians were hence left stateless with lack of national identity followed by their non-recognition by the independent Kenyan government as Kenyan citizens.
Denial of Citizenship Rights by the Kenyan Government
The case before the Commission claimed the Kenyan government’s violation of the Nubian’s civil, political, economic and cultural rights in Kenya having been denied the status of citizenship and treated as “aliens”. This came with the denial of national identity cards, passports and discrimination from other political and economic processes by the Kenyan government leaving them in general poor living conditions.
Legally, the case asserted infringement of Articles 1, 2, 3, 5, 12 (1) and (2), 13, 14, 15, 17(1), 18, 19, 22 and 24 of the Banjul Charter, 1981 (the Charter) by the Kenyan Government that relates to the rights to enjoy all the guarantees under the Charter, right to equality, non-discrimination, respect and dignity, freedom of movement and residence, leave and return to his country per the laws of a relevant state, participation in government, property, work, education, protection of family, economic, social and cultural development and satisfactory environment favorable for development.
The main argument by the complainants was centered on the indifferent treatment the Nubians were confronted with (i.e. subjected to lengthy and tiresome procedures) in the process of acquiring Kenyan national identity cards which were necessary for almost all of transactions in Kenya. Also lack of national identity cards barred the Nubians from applying and acquiring passports something that inhibited their right to movement i.e. leaving and entering the country.[2] Further, denial of the Kenyan citizenship to the Nubians subjected them to land alienation. The complainants argued that the fact that the post-colonial government in Kenya refused to recognize as citizens the Nubians who had settled and established themselves in the Kibera area of Nairobi for decades violated the Charter by claiming such land as the government’s land; the land that the Nubians have had connection with and have buried their ancestors over the years. This rendered periodic evictions and waiver of basic social services to such community from the Kenyan government which directly affected their right to property, economic, social and cultural rights.[3]
Conversely, the Kenyan Government negated the complainant’s claims of discrimination, breach of right to dignity and freedom of movement by arguing that, it respects such rights as enshrined in the then 1963 Constitution as long as they are lawfully in the country. Also, the same Constitution did not guarantee the right to citizenship to a group of people but individuals. Hence, the claims of citizenship were to be lodged and determined individually not collectively. This is because; a blanket grant of citizenship to the Nubians would cause influx of such community to Kenya from every part where the Nubians may be situated.[4] Hence, for one to claim denial of right to citizenship, he or she must have individually made such application and seek further redress available domestically in case of refusal. As to the right to collective ownership of land in Kibera, the Respondent argued that Nubians were not exempted from this right as far as they hold titles to ownership of land.[5]
Grant of Citizenship and Land Rights by the African Commission
The Commission, having considered arguments in favor of the Nubians and the Kenyan Government, observed that, from the evidence tendered by the Complainants in terms of sworn affidavits, the Nubians were indifferently treated (subjected to difficult vetting process) in the process of acquiring national identity cards due to their ethnicity and religious affiliations. This was found to be contrary to Article 2 of the Charter that condones discrimination on basis of the aforementioned grounds which are typically historical in this case.[6] As to the violation of the right to property, the Commission noted that the Nubians who were conscript by the British Military Army were settled in Kibera which was a military reserved area by the colonial administration in the year 1904; however, they were not granted any title to such land. Nonetheless, the Commission was of the view that, given the time that the Nubians have occupied such land (over a century) the Respondent state was under the obligation to grant the Nubians security of tenure over Kibera area and offer the population living thereto rights to quality social services.[7]
The Nubian case before the ACHPR sowed the seed of hope for the Nubians in Kenya. Nevertheless, there has been a constant challenge of implementation of the ACHPR’s recommendations by the member states to the Charter as such recommendations are not binding. Their implementation depends on the individual country’s willingness to heed to the proposed remedies by the Commission. As far as there is still a long walk to remedy the colonial legacy in Africa, it is undeniable that, colonialism has left African countries with a heavy burden of rectifying its aftermath something which is proving futile. A great lesson has been drawn from the Nubian case; a painful scar to the black history in continental Africa.
[1] Communication No. 317 of 2006.
[2] Para 81, the Nubian Case. Available at <https://adsdatabase.ohchr.org/IssueLibrary/ACHPR_The%20Nubian%20Community%20in%20Kenya%20v%20Republic%20of%20Kenya.pdf>
[3] See paras 82 -83, id.
[4] Paras 97-99, 104 and 105 id.
[5] Paras 107,108 and 110, id.
[6] Paras 130-131, the Nubian Case
[7] Para 160 and 165, ibid.
