KENYA'S NUBIANS

 THE NUBIAN’S IN KENYA: DISCRIMINATED AGAINST BUT UNBOWED

Korir Sing’Oei,

Co-founder, CEMIRIDE/Attorney for the Nubians in Kenya

Nairobi, June 2011

I met Adam in 1989 when I joined Kabarak School. I remember him as the big guy who loved to play soccer, rugby and music. But it was while in the drama club where he served as Chair that I got to know him more. Yet these meetings and interactions did not prepare me for what he would share with me regarding the burden of his identity.

Eleven years after our interaction in high school, both of us had completed our undergraduate studies-Adam two years earlier with a Bachelor of Science in chemistry and I with a law degree. While I was settling into professional life as a young and upcoming corporate lawyer (then), Adam narrated several cases of lost opportunities that were all directly related to his Nubian identity. My search to establish the history of the Nubian community in Kenya, the justification for their blatant discrimination and the consequences of the deprivation of their human rights had begun and has never stopped.

The History and Settlements

The Nubian story has taught me that it is possible to be a long term resident of a state and yet be denied the right to citizenship and property. Incorporated into the British Army in Sudan and brought to Kenya as soldiers in the King’s African Rifles in the late 1890s, the Nubians of Kenya to this day do not own the land they live on. Many have no identity documents and the government treats them as foreigners. This is difficult to comprehend given that the Nubians provided sterling service to the British government during the expansion of empire and during two world wars. Additionally, I was informed by the late Yusuf Ali, former chair of the Nubian Council of Elders, that Kibera, the Nubians’ homeland a few kilometres from downtown Nairobi and land the Nubian community has lived on for over 100 years, also provided shelter to the Kenyan freedom fighters during the Mau Mau struggle. This military contribution to the survival of the British Empire and moral solidarity extended to Kenya’s freedom fighters should have provided a secure basis for Nubians existence in Kenya. It did not.

Instead, Nubians were abandoned in various informal settlements spread across Kenya’s major urban centres: Kibera in Nairobi, Kibigori in Kisumu and Mazeras in Mombasa.

The Nature of Discrimination

Although under Kenyan law, Nubians, like many African communities residing in Kenya at the time of independence in 1963, would have acquired citizenship automatically by “operation of law”, this did not happen. Instead, many Nubians were and continue to be forced to go through a painful, lengthy and humiliating process known as ‘vetting’ to determine whether or not they qualify for Kenyan citizenship. This procedure impacted negatively not only on Adam’s career progression but also on the future of countless other young Nubians as well as the development of the greater Nubian community over the past decades.

Adam secured an offer of employment in Saudi Arabia through a Kenyan Agency to begin work in November 1999. He was to be paid an annual salary of US$ 36,000.

However, he could not secure a passport to proceed to Saudi Arabia. To facilitate the passport process, the Ministry of Labour and Human Resources had written to The Principle Immigration Officer, urging them to issue Adam with a passport. Adam was subjected to numerous interviews at the Immigration Offices and later by the National Security Intelligence. At these interviews, Adam was required to produce birth certificates of his parents and his grandparents to demonstrate that they were born in Kenya. Although he had his parents’ certificates, he was unable to produce his grandfather’s birth certificate, and his application was flatly rejected. It took Adam three years to secure the passport, but his Saudi Arabian employment offer had already lapsed.

This lack of legal recognition has resulted in social and economic exclusion and has caused poverty, frustration and hopelessness to be the dominant experience of many Nubians. Related to their challenge of legal recognition is the lack of rights over land in Kibera.

Related to their challenge of legal recognition is the lack of rights over land in Kibera. Although Kenya’s independence constitution recognized property rights irrespective of one’s citizenship, the practice was that land settled by known African communities of indigenous extraction (known then as Native Reserves) would be passed on to the control and management of local authorities (known in Kenya as County Councils), which would hold such land in trust for their communities.

The land of Kibera, like forest reserves and other land in urban areas, was classified as ‘government land’. When the ex-Soudanese soldiers were settled by the British in Kibera in the early 1900s, they were given temporary rights of ownership over the land with the understanding that upon gaining independence, the Kenyan government would grant the Nubians permanent rights to the land they occupied in Kibera. Instead, in the case of Kibera post-independence, the government encouraged and allowed different communities migrating into Nairobi in search of formal employment to invade the Nubian settlement of Kibra or ‘land of forest’ as it was originally named. As the land disappeared, so did the opportunity for the Nubians to continue utilizing that land for agriculture.

Authorities tacitly permitted the creation of informal housing within Kibera, and over the course of four decades they have carried out systematic evictions of the Nubians to create different housing developments including Ayany, Jamhuri and other up-market housing units. Most of these housing schemes were initially touted as slum upgrading projects that were designed to benefit the Nubians and other occupiers of land in the slum. In most cases though, the Nubians never benefited from these housing schemes. All of this has lead to the present day slumization of Kibera as well as the marginalization of the Nubian community in Kenya.

The Consequences of Discrimination

Adam’s lost opportunity for career progression is a typical case. It took years for Adam to change the course of his future, yet for many Nubians, such as Hawa, born in 1928 in Nairobi, the structural barriers to exclusion have been insurmountable. Hawa had applied for a passport on an urgent basis to travel to Mecca for Hajj, to fulfil her obligation as a Muslim by observing one of the five pillars of Islam. This was on January 26th, 2001. This was not to be as today, she is still waiting for this precious document that is the only permission to leave the country. Too old to travel, Hawa’s aspiration to fulfil her religious duty has been forever frustrated.

While being denied identity cards and passports is a problem experienced at the individual level by many Nubians, the non-recognition of Nubians in government planning processes has nearly broken the community’s will to survive. In government periodic census processes for instance, the Nubians are enumerated under the category “others” while most of Kenya’s 42 ethnic groups are identified as such. The effect of this denial of Nubians’ existence within Kenya’s commonwealth of communities places enormous pressure on Nubian youth who often have to self-identify as belonging to one of the dominant groups in order to seek employment allotted informally on ethnic quotas. The persistence of this assimilation policy pursued informally by the Kenyan state will hamper the cultural, linguistic and political survival of the community.

Struggles for Empowerment

After years of petitioning political leaders to address their challenges in vain, the Nubians resolved to work with human rights advocacy groups to seek justice from judicial bodies. In 2003, the Nubians moved to the High Court in Nairobi, seeking judicial interpretation of Kenya’s constitution regarding citizenship and whether the Nubians were entitled to Kenyan citizenship by birth. Although this litigation effort did not yield positive outcomes largely due to the highly inefficient judicial system, it exposed the Kenyan government’s official policy towards the Nubians. Through papers filed in Court, it became abundantly clear that the Kenyan state viewed the Nubians as foreigners from Sudan who needed to renounce their putative citizenship before being granted Kenyan citizenship. Moreover, the Kenyan state was of the view that at the most, Nubians would be entitled to citizenship by registration, an inferior form of citizenship that could be withdrawn at the whim and caprice of the Minister in Charge of Nationality issues.

Frustrated by Kenyan Courts’ lack of interest in the substantive determination of their issues, Nubians shifted the focus of their struggle from the domestic level in Kenya to the regional level. In 2006, with the support of several local and international organizations, including the Center for Minority Rights Development (CEMIRIDE), the Nubians sued the Kenyan state at the African Commission on Human and Peoples’ Rights for violation of various rights protected by the African Charter on Human and Peoples’ Rights, which is the African Union’s principal Human Rights treaty. These rights included the right to property, freedom of movement, freedom from discrimination, and various social economic rights. Simultaneously with the action at the African Commission, the Nubians also seized the African Committee of Experts on the Rights and Welfare of the Child (ACRWC) (the body that monitors the African Charter on the Rights and Welfare of the Child, which Kenya ratified on 25 July 2000) with a complaint on behalf of Nubian children. The African Commission declared the Nubian complaint admissible in 2009 but has yet to make a determination of the Nubian case on merits.  In a decision issued on 25 March 2011, the ACRWC found Kenya in violation of the rights of Nubian children to non-discrimination, nationality and protection against statelessness. While the full text of this landmark decision has yet to be released, it is evident that the rights of the Nubians are finally finding judicial vindication.  In addition, developments within Kenya, notably the adoption of the new constitution in August 2010, present important opportunities for reversing the legacy of Nubian discrimination and exclusion.

The success of the Nubian community in formal courts is beginning to melt away the years of oppression. Judicial or legal recognition alone, however, cannot immediately translate into social recognition. Many dominant groups are still xenophobic towards the Nubians, looking at them with wistful envy, particularly given that Nubians “own” temporary structures in Kibera from where they earn small monthly rentals. To overcome generations of exclusion, therefore, it will be vital to sustain not only legal programs but also programs designed to inform the Kenyan public regarding the important historical contribution made by Nubians to the well being of Kenyan society. Programs exemplified by this compilation of photos will put real faces to abstract legal arguments relating to discrimination.

I long for the day when Nubians and other communities in Kenya will recognize their common patrimony; a day when an application for an identity card or passport by Nubian children will not be met with impossible demands by the bureaucrats at the office of registrar of persons. Hopefully, my friend Adam’s two daughters will find that Kenya is a place they can feel safe as well as confident and proud to call home.