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Nubian Community in Kenya v Republic of Kenya (Communication 317-2006)

African Commission on Human and Peoples' Rights · [2015] ACHPR 2 · 2015 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter on Human and Peoples' Rights
Decision
Communication declared admissible and violations found; remedial orders issued to the Respondent State

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found that Kenya violated multiple provisions of the African Charter by subjecting the Nubian community to discriminatory vetting procedures for identity documents based on ethnicity and religion, thereby denying them effective nationality and rendering many stateless. The Commission held that Kenya failed to recognise Nubian land rights in Kibera and carried out forced evictions without due process. The discriminatory denial of identity documents resulted in consequential violations of rights to movement, work, health, and education. Kenya was ordered to establish non-discriminatory citizenship criteria, recognise Nubian land rights, and ensure evictions comply with international standards.

Outcome

Communication declared admissible and violations found; remedial orders issued to the Respondent State

Facts

The Nubian community in Kenya, numbering over 100,000, are descendants of Sudanese soldiers conscripted by the British colonial administration in the early 1900s for military service in East Africa. After military campaigns, the Nubians were settled in Kibera (4,197 acres) but were not granted British citizenship or repatriated to Sudan. At Kenyan independence in 1963, their citizenship status was not addressed and they were treated as aliens. The Kenyan government subjected Nubians to a discriminatory vetting process requiring additional documents, court affidavits, and fees to obtain national identity cards, unlike other indigenous Kenyan ethnic groups. Many Nubians were denied identity cards, rendering them effectively stateless and unable to access education, healthcare, employment, and other rights. The government refused to recognise Nubian property rights in Kibera, treating them as squatters on government land, and carried out forced evictions without notice, compensation, or alternative housing. Domestic legal proceedings initiated in 2003 faced numerous procedural obstacles and no substantive hearing occurred despite multiple court appearances over several years.

Issues

  1. Whether the Complainants have exhausted local remedies as required by Article 56(5) of the African Charter.
  2. Whether the Respondent State discriminates against Kenyan Nubians in the acquisition of identity documents in violation of Articles 2 and 3 of the African Charter.
  3. Whether the restrictions imposed on Kenyan Nubians through the vetting process amount to an arbitrary deprivation of the right to effective nationality and recognition of legal status in violation of Article 5 of the African Charter.
  4. Whether the failure to recognise the property rights of Kenyan Nubians in Kibera and the forced evictions constitute a violation of Article 14 of the African Charter.
  5. Whether the discriminatory treatment of Kenyan Nubians results in consequential violations of their rights to freedom of movement (Article 12), work (Article 15), health (Article 16), and education (Article 17) of the African Charter.
  6. Whether the Respondent State has failed to give effect to the rights guaranteed in the African Charter in violation of Article 1.

Orders

  • The Republic of Kenya has violated Articles 1, 2, 3, 5, 12, 13, 14, 15, 16, 17(1) and 18 of the African Charter on Human and Peoples' Rights.
  • The Republic of Kenya shall establish objective, transparent and non-discriminatory criteria and procedures for determining Kenyan Citizenship.
  • The Republic of Kenya shall recognize Nubian land rights over Kibera by taking measures to grant them security of tenure.
  • The Republic of Kenya shall take measures to ensure that any evictions from Kibera are carried out in accordance with international human rights standards.
  • The Republic of Kenya shall inform the Commission within one hundred and eighty days (180) of notification of the measures taken to implement the decision.

Rules and key headnotes

Exhaustion of Local Remedies — Undue Prolongation — Procedural Obstacles
Where a complainant has instituted domestic proceedings but faces systematic procedural obstacles preventing a substantive hearing for over three years, and where the government has been sufficiently aware of alleged human rights violations to remedy them, the requirement to exhaust local remedies is satisfied under Article 56(5) of the African Charter.
Non-Discrimination — Ethnic and Religious Grounds — Identity Documents
Requiring members of a particular ethnic or religious community to meet different and more burdensome requirements than other citizens to obtain identity documents, without objective justification, constitutes unlawful discrimination in violation of Articles 2 and 3 of the African Charter.
Right to Nationality — Recognition of Legal Status — Statelessness
The right to recognition of one's legal status under Article 5 of the African Charter includes the right to nationality. States may not arbitrarily deprive individuals of effective nationality through discriminatory administrative practices that render them stateless, particularly where those individuals have established a genuine and effective link to the state over multiple generations.
State Obligation to Prevent Statelessness — Children Born in Territory
States have an obligation under international customary law and the African Charter on the Rights and Welfare of the Child to prevent statelessness by granting nationality to children born in their territory who would otherwise be stateless.
Collective Property Rights — Security of Tenure — Historical Settlement
Where a community has occupied land for over a century with the knowledge and initial permission of the state, and where the state recognises a moral obligation to provide settlement, the community is entitled to official recognition and registration of at least some of the land as communal property and to security of tenure under Article 14 of the African Charter.
Forced Evictions — Due Process — International Standards
Forced evictions violate Article 14 of the African Charter where they are carried out without adequate notice, without provision for alternative housing or compensation, without exploring feasible alternatives in consultation with affected persons, and without legal remedies or due process in accordance with domestic and international law.
Consequential Violations — Identity Documents — Access to Rights
Where discriminatory denial of identity documents prevents individuals from accessing voting, employment, education, healthcare, freedom of movement, and other essential services, such denial results in consequential violations of the rights to freedom of movement, work, health, and education guaranteed in the African Charter.

Legislation cited (25)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 12
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 15
  • African Charter on Human and Peoples' Rights Article 16
  • African Charter on Human and Peoples' Rights Article 17
  • African Charter on Human and Peoples' Rights Article 18
  • African Charter on Human and Peoples' Rights Article 19
  • African Charter on Human and Peoples' Rights Article 22
  • African Charter on Human and Peoples' Rights Article 24
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Constitution of Kenya Section 70
  • Constitution of Kenya Section 75
  • Constitution of Kenya Section 84
  • Constitution of Kenya Section 87
  • Kenya Citizenship Act Cap 170
  • African Charter on the Right and Welfare of the Child
  • Convention Relating to the Status of Stateless Persons
  • Convention on the Reduction of Statelessness Article 1
  • Convention on the Reduction of Statelessness Article 8

Cases cited (24)

  • Mouvement Burkinabé des droits de l'homme et des Peuples v Burkina Faso (Communication 204/1997)
  • The Law Office of Ghazi Suleiman v Sudan (Communication 228/99)
  • Sir Dawda Jawara v The Gambia (Communications 147/95 and 149/96)
  • Recontre Africaine Pour la Defense des Droits de l'Homme v Zambia (Communication 71/92)
  • Akdivar v. Turkey
  • Famara Kone v Senegal (Communication 386/1989)
  • Social and Economic Rights Action Centre and Centre for Economic and Social Rights v Nigeria (Communication 155/96)
  • Amnesty International v Sudan (Communications 48/90, 50/91, 89/93)
  • Malawi African Association v Mauritania (Communications 54/91, 61/91, 98/93, 164/93, 196/97, 210/98)
  • Free Legal Assistance Group v Zaire (Communications 25/89, 47/90, 56/91, 100/93)
  • Rights International and Others v Sudan (Communication 215/98)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v Zimbabwe (Communication 294/04)
  • Legal Resources Foundation v Zambia (Communication 211/98)
  • Yean Bosico v Dominican Republic I-ACtHR, Judgment of 8 Sept 2005
  • John K Modise v Botswana (Communication 97/93)
  • Institute for Human Rights and Development in Africa and Open Society Justice Initiative v Kenya (Communication 002/2009)
  • Sudan Human Rights Organization and Centre for Housing Rights and Evictions v Sudan (Communications 279/03 and 296/05)
  • Nottebohm case (Liechtenstein v Guatemala), second phase, Judgment of 6 April 1955, ICJ Reports 1955
  • Harksen v Lane No 1998 (1) SA 300 CC
  • Centre for Minority Rights Development and Minority Rights Group International v Kenya (Communication 276/2003)
  • Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (Communications 140/94, 141/94, 145/95)
  • Loayza Tamayo Case, Preliminary Objections, Ser. C, No. 25 (31 January 1996)
  • Velasquez Rodriguez Case, Ser. C, No.4(29 July 1988)
  • Godinez Cruz Case, Ser. C, No.5 (20 January 1999)

Full judgment

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Nubian Community in Kenya v Republic of Kenya (Communication 317-2006) [2015] ACHPR 2 (28 February 2015)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.