Nubians and the New Constitutional Order
Yash Pal Ghai
July 2011
Nairobi
The colonial past is too much with us, still. This is manifested in the underlying basis of the state, its coercive powers, and the limited interests it serves. It is also evident in the narrow role of the state, its refusal to take responsibility for the welfare of the people generally, its inability to assure citizens human security, its politics marked by ethnicity and the dominance of one or two big tribes. Although there are 41 or so tribes, and only one just larger than 20% of the population, Kenya’s politics have been dominated by five major tribes—and politicians from those tribes. Since independence, the centralization of the state has meant that one of these tribes can secure a near monopoly of the resources and power of the country. In these circumstances, especially the smaller tribes have suffered, some completely marginalized. They have little representation in the state institutions, from the president downwards to the most humble civil servant. Their cultures have been denigrated, no attempt is made to understand their distinctive lifestyles and consequent hardships, and their access to state services is infinitely inferior to that of the larger tribes. Of all the minorities, none has suffered more from discrimination and neglect than the Nubians.
Nubians were conscripted from the Sudan by the British and brought to Kenya and Uganda at the end of the 19th century as conscripts to help in its imperial mission of the annexation of Kenya and Uganda and to fight the major world wars on its behalf. However, even before the second great war of the 20th century, the usefulness of the Nubians to Britain had been expended. But the British both rejected the request of Nubians to return to their ancestral home (still under British control) and failed to make suitable arrangements for their continued stay in Kenya. Some land was found outside Nairobi for them, but the fear of an uprising of some kind forced the community to become even more dispersed, ending up in several townships in various parts of the country. The land on which they were settled lacked legal security (they were tenants at the will of the Crown)—but the mud huts they built were to be theirs. At independence, their status and livelihood were left, at best, ambiguous, with no guarantee of citizenship or a place in the future Kenya (unlike the solicitude shown for European and Asian communities).
It is therefore no surprise that the Nubians have not fared well in independent Kenya. Most Kenyans, or at least the administration, tend to regard them as foreigners. It matters not that they and their parents, and even grandparents, were born in Kenya—and know no other home. Since they have neither the eligibility nor the desire for citizenship of another country, they are stateless. The Nubian community today suffers all the hardship and suffering that result from statelessness. They find it hard to obtain identity cards and passports; in many ways they are worse off than refugees. Consequently they are excluded from jobs in the government or the private sector and are denied access to educational institutions. Many have difficulties traveling outside the country, an escape from poverty for many Kenyans.
The lack of proper documentation makes any Nubian easy prey to unscrupulous bureaucrats and the police, easy victims of forced bribes, not unique in Kenya for that reason, but more vulnerable. Most do not have a vote, and even if all of them were enfranchised, their ability to influence elections would be minimal given their small number dispersed around the country. Not one of their members holds a high public post—almost an essential requirement for the advancement of communities.
Mostly, and largely because of the lack of ID cards and access to education, they are unfamiliar with Kenya’s laws or judicial system, and suffer from the mysteries of the law, manipulated to suit developers and other land grabbers. Most of the attractive, verdant land on the edge of Nairobi, on which they were allowed to build their homes before independence, has been lost to others who have invaded it. It has been turned into one of the largest slums in Africa, registering a massive degradation of the environment from which the Nubians have no escape. And in this area they have become a minority, living constantly in the knowledge of the insecurity of their entitlement to land—mere squatters in the land they have possessed and called home for over a century.
They suffer also because they are Muslims. Kenya has effectively been run by those professing the Christian faith, and as manifested in state ceremonies, and the bias of the educational system, it is in many respects a Christian state. The Nubians are cut off from the links and patronage that come from being part of a Christian church and community.
Their statelessness and constant hardships have brought about a strong sense of alienation, a crisis of identity, the compulsion to disown their community, to hide their Nubian origins as a necessity to survive in greater Kenyan society. A sensitive and educated Nubian describes a Nubian’s existence in the journal Forced Migration Review, “It is a story characterised by the need to survive through challenges that are never explained to you. It is a story characterised by limited interactions with state officials who always remind you it is your privilege to be served by them. It is a story characterised by assuming false identities in order to belong. For Kenyan Nubians the lack of a link to the state, lack of integration and lack of social acceptance have been part of our existence. We are neither Sudanese nor accepted as Kenyans.”
The circumstances of Nubians are by no means unique, but they are the most pronounced of all the Kenyan communities in their vulnerability and marginalization. When the British left Kenya, they bestowed a state on its elite, but not a nation—a people divided and in some respects, antagonistic towards each other. The state therefore retained its characteristics of exclusion and exploitation of the many for the benefit of a few—and human dignity and rights remained a chimera. The challenge to those who were entrusted to draft a new constitution at the end of 2000 was therefore two-fold, namely nationhood and statehood: to create out of diverse people of Kenya a united and integrated nation: social solidarity through common values and aspirations, and reconstruction of the state accordingly, making it inclusive, participatory, protective of vulnerable and marginalized communities, founded on human dignity, social justice and integrity.
Will the constitution now herald a new political and social order for the Nubians, as indeed for other groups marginalized by history? If so, it will not be because Nubians will wield political power—their numbers, small and dispersed, will make that difficult given the majoritarian electoral system. But the constitution promises them easier access to the state and participation in state institutions, ensures all communities respect for their culture and the promotion of their languages, makes the state secular and thereby promising all religions equal recognition and protection, securing access to all the basic amenities and resources for a life in dignity, including education.
The new constitution promises communities marginalized by state policies or in other ways the redress of historical injustices—for which the Nubians amply qualify. They qualify also for affirmative action so that they can catch up with the more favored communities in terms of education, employment, and basic needs. The question of citizenship is still ambiguous, so the implementing legislation should, unambiguously, entitle them to citizenship. The judiciary has already struck out as unconstitutional some of the requirements to obtain an ID, including documentation about details of grandparents’ birth, demanded only from Muslims and some “migrant” communities, which have clearly disadvantaged many Nubians. Given the past discrimination against Nubians and the poverty in which most of them live, a test of the effective implementation of the constitution, and the birth of a new Kenya nation, will be the way in which Nubians are now treated and integrated into the social, political and economic life of the country.
For this reason we are deeply grateful to Greg Constantine for his efforts to highlight the situation of the Nubians and for his commitment to justice for them. His highly successful photography exhibition in Nairobi in 2010 of the Nubian history and way of life did much to increase people’s knowledge of this community, and to evoke considerable sympathy for their predicament. Now this wonderful book, full of fascinating photographs, records the many aspects of the community and shows how it has been a part of Kenya’s history. It reminds us of other small minorities who have been neglected by our government and society—and of the wonderful ethnic, cultural and religious diversity of the people of Kenya, which the constitution proclaims in its preamble. It also reminds us of what a community can lose when deprived of the fundamental rights and protections afforded to others. This is also one of the communities for which the constitution has placed major responsibility on the government and people, for their recognition and justice to them—of which I hope this book will be a constant reminder.