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On 28 July 2023, President William Ruto declared the Pemba community to be an “ethnic community of Kenya”. At a citizenship award ceremony in Kilifi County he read aloud from a proclamation issued in January, which states:

“I, William Samoei Ruto, President and the commander-in-Chief of the Kenya Defence Forces, having considered the said petition and the consequent Parliamentary Report in light of the Constitution of Kenya, our National Values, and the Principles of Governance, by the authority vested in me by the Constitution, do recognise, proclaim and order:
1.
That Kenyans of Pemba heritage constitute a community that is one of the ethnic communities of Kenya.”

This is the second group which a president has formally proclaimed to be a tribe or ethnic community of Kenya in recent years. Uhuru Kenyatta did the same for Kenyan Asians in 2017, and gave less formal forms of recognition to other groups in speeches and statements. In 2016, registration of the Makonde people was declared to be compulsory following a cabinet decision, and Uhuru handed out certificates of citizenship to community members at a function in 2017. Uhuru also supported citizenship for Shona people and in 2020, issued certificates and ID cards to them at a public ceremony on Jamhuri Day.

But citizenship is not granted to groups. Indeed, there is much that is not well understood about how citizenship functions in Kenya.

Citizenship is the relationship between an individual and the state. It is a social contract and a symbiotic relationship where the state recognizes the rights and entitlements of an individual while at the same time the individual recognizes their responsibilities to the state. It also expresses the relationship of an individual to a national community. It is the legal recognition of belonging. When presidents talk of granting citizenship to communities, they are affirming that belonging in order to right some historical injustices. But they are also (perhaps unintentionally) giving a misleading interpretation of the way that citizenship law works in Kenya – or indeed in most other countries.

In this article we examine the use of presidential decrees of nationality, and their relationship not just to a politics of belonging, but to the laws of Kenya. 

How citizenship status really works: by birth vs by registration

Citizenship status derives from the Constitution of Kenya 2010, the Citizenship and Immigration Act 2011, and the regulations that define the procedures to apply for recognition or grant of citizenship. It is important to distinguish between citizenship by birth and citizenship by registration.

Citizenship by birth means citizenship that is automatically attributed to a child at birth. It does not require an application but is acquired simply by operation of the law. Of course, a person who is attributed citizenship by birth will in practice later have to apply for a national ID card to be able to prove the status when needed, but if the relevant facts are established, the person cannot in law be denied the documents. According to the constitution, a person is a citizen by birth if either their mother or father is a Kenyan citizen. Birth on Kenyan territory does not give any rights to Kenyan citizenship.

The next step, of course, is to prove that either the mother or father is Kenyan, and this is where it may become complicated for those whose parents do not have identity documents. The burden of proof of the relevant facts is on the individual who claims to be a citizen. This is not always obvious. On the one hand, there are real challenges in interpreting the law on automatic or voluntary acquisition of Kenyan citizenship upon independence in 1963, and up until an amendment to the constitution in 1985 that removed rights to citizenship based on birth in Kenya. This amendment was stated to be retroactive to the date of independence – against the general principles of the rule of law. On the other hand, very many people who are undoubtedly Kenyan citizens in law have historically held no identity documents.

Citizenship by registration, as opposed to by birth, is citizenship that a person who is not already a citizen has to apply for. It depends on an administrative process. For some people, citizenship by registration is available (in principle) on simple application, for example if they have been married to a Kenyan for seven years.

However, for others the process is much more discretionary and can be refused on a wide range of grounds. For example, someone who is a legal resident of Kenya for seven years can apply for citizenship, but must satisfy a list of conditions including being “capable of making a substantive contribution to the progress or advancement in any area of national development within Kenya” (section 13 of the Citizenship and Immigration Act). Again, the burden of proof that the conditions are fulfilled lies with the individual.

Very many people who are undoubtedly Kenyan citizens in law have historically held no identity documents.

As we know, members of some communities who have been living in Kenya for a very long time were not previously recognised as Kenyan. In recognition of this, the Citizenship and Immigration Act 2011 created special temporary procedures to enable such a person to apply to register as a citizen. These procedures were for people who have been living in Kenya continuously since independence in 1963 and who did not have a claim to citizenship in Kenya or any other state, or who did not hold an identity document recognising citizenship in any country. Descendants of people fulfilling these conditions were also eligible. The term “stateless” is commonly used to refer to such people in Kenya (although the law is more complicated). Just as with a normal application for registration, the process is an individual application, the burden of proof of the relevant facts is with the individual, and no membership of a community is mentioned.

There was a legal window of five years for this process, and in that time practically no use was made of it – a few people tried to apply, but there was no procedure in place to treat the applications. Diana Gichengo of the Kenya Human Rights Commission at the time was quoted in the Daily Nation (4 October 2016) saying, “It is unfortunate that the deadline has elapsed without a single person being registered.” It was thanks to the efforts of the Makonde community and their famous march, and the civil society groups that supported them, including the KHRC, that the interior secretary agreed to take action and to extend the registration deadline, using the additional three-year extension available in the law. This extension expired in 2019.

What has been the procedure applied in recent cases?

In none of the cases of the Makonde, the Shona, or the Pemba – or Kenyan Asians – did the president “grant” citizenship to all members of those communities. Instead, the presidential declarations, preceded by a parliamentary committee report in the Pemba case, and lobbying from civil society (as well as the UNHCR), generated the political will to find the legal means to resolve their statelessness. It is still the case that every individual had or will have to go through their own process, and provide proof of their own birth, parentage and so on.

The nature of these registrations was different in each case. The Makonde and Shona people were registered as citizens during the special window provided in law for the registration of stateless people (although the ceremony for the Shona took place after it had expired). They had to first apply for citizenship and swear an oath of allegiance. Only once citizenship was granted for each individual were they issued with ID cards.

For Pemba people, the proclamation by President Ruto took place after the expiry of that special window. This meant that they would not be able to apply for citizenship in the same way. Instead, it seems that the government is taking the approach that they were citizens by birth and simply lacked recognition of that fact – despite the previous statement by the cabinet secretary that this was not the case. Accordingly, it seems they will simply be issued with ID cards without swearing an oath – if they can fulfil whatever evidential requirements are put in place. By issuing ID cards to members of a community on the basis that they are citizens by birth, the government admits that they have been legitimate Kenyans all along but have been denied citizenship for all these years.

It is still the case that every individual had or will have to go through their own process, and provide proof of their own birth, parentage and so on.

The government could have introduced a bill in parliament to amend the Citizenship and Immigration Act (Section 15(2)) to further extend the window for registration of stateless people, but this has not yet happened. The reasons for this are not transparent. If this window can be extended, there are other communities who could also benefit from targeted registration processes – including people of Rwandan and Burundian descent (with the exception of a handful of Rwandans who have been issued with ID documents).

What is the relevance of “communities” or “tribes” of Kenya for citizenship?

Kenya’s citizenship law does not contain any mention of “tribes” or “ethnic communities”. What, therefore, is the relevance of the recent proclamations and declarations?

They are important because, despite the lack of relevance of ethnicity for citizenship law, membership of an “ethnic community” has historically had official and unofficial significance in the processes of acquiring identity documentation.

The Registration of Persons Act 1947 is still in effect, and until a 2018 amendment, required a person to declare their “race or tribe” to acquire a national ID. This is, of course, a hangover from colonial administrative practices, including for the infamous kipande system to ensure that men did not move from their Native Reserves without the permission of the settler authorities.

Though there is, since 2018, no longer any legal or regulatory requirement to include ethnicity on application forms or in a population or citizenship register, it continues to happen. The National Registration Bureau is not transparent about why it collects this data, or what impact it has on an individual’s application. But we know from the experiences of several marginalised communities that members of some ethnic communities continue to face “vetting”, requiring additional forms of proof of identity and parentage that can be impossible fulfil. When they can’t meet these sometimes unduly onerous requirements, they can find themselves stateless.

In practice, the communities most affected by these unofficial and discriminatory practices are ethnic groups that are vaguely perceived, en masse, as not belonging to Kenya either now or at the time of independence: Nubians, Makonde, Shona and Pemba are the most well known but not the only examples. This leads to a situation in which public debates take place about an entire community’s belonging and history in Kenya. These debates then shape public perceptions of whether these people “deserve” citizenship or not, even though this should really be a question of each individual’s biography.

Members of some ethnic communities continue to face “vetting”, requiring additional forms of proof of identity and parentage that can be impossible fulfil.

Take Shona people, for example. They tell their history as having come from Zimbabwe before independence, as missionaries of the Gospel Church of God. Pemba peoples have sought to present themselves as long-term inhabitants of the coast, not of Pemba Island, and therefore indigenous to what is now Kenya for centuries. They use their fishing prowess to further support this point. Nubian people point to having been settled in Kenya long before independence, and to their support for Tom Mboya and the Kenyan nationalists.

In all these cases, these communities – as communities – have been in Kenya for generations, they have made it their home, and they have strong ties and allegiances here. This is in the spirit of what citizenship is meant to be, even though the law is actually about individuals. In this sense, ethnic community is something of a vehicle to a generalised sense of belonging and a widespread political acceptance thereof, and this can be useful. But it does not, and should not, supplant the notion that citizenship is individual.

The president has no powers to grant citizenship

While it is welcome that the president took an inclusive tone in his address to the Pemba community, he overstated his powers. The Constitution of Kenya 2010 sets up the backbone of citizenship acquisition in Kenya and it doesn’t give the president any powers to confer citizenship or declare “ethnic communities of Kenya” in any official way. Nor did the drafters ever dream of giving such power to the president, as it could reduce nationality to a political tool. This is not to discredit the president’s roles in advancing the political will to help end statelessness in Kenya, but rather to examine the sustainability and fairness of such initiatives, and to clarify the limits of the executive in this area.

As described above, entitlements to citizenship are outlined in the constitution and in laws. If it appears that citizenship by birth can be granted to groups on the basis of discretion and not as a legal right, that can undermine the perceived authority of the constitution and the rule of law more generally. Such powers were not given to the president because they are not meant to be discretionary, and there are meant to be safeguards in place to ensure all those entitled to citizenship can get it. If we were to centre these powers in the presidency, what would the procedure be for application? What would the appeals mechanisms be if you have been denied the opportunity due to your political inclination or other discriminatory grounds?

While it is welcome that the president took an inclusive tone in his address to the Pemba community, he overstated his powers.

So why have both Uhuru and Ruto acted as if they have more powers than they do? The answer is, of course, political. It is a way for presidents to continue to gather political support. The “launch” or “citizenship declaration” events become like rallies. This is especially so since devolution. The blow to Kenya’s executive delivered by devolution has perhaps been removing opportunities for the president’s “benevolent” flights every other week from one corner of the country to the other, launching “development”: schools, hospitals, water projects, agriculture projects. The executive has been forced to be creative in the ways that they connect to the wananchi on the ground. Such a proclamation as made by Ruto on the Pemba or the directives issued by Uhuru in favour of the Makonde and Shona gives the illusion of the president as still a dispenser of state goodies in a decentralised system of patronage.

For the local politicians involved, their role in lobbying the parliament and the executive is also, at least in part, for political benefit. Where the executive used to play the biggest role in handing out political favours, this has now shifted to the county-level political class like members of parliament, senators and governors. The Makonde trek was flagged off by Kwale governor Salim Mvurya who said at the time, “My government fully supports this registration and we are going to fight tooth and nail until you get your rights.” Later, a kicker in the local daily on Makonde’s recognition read, “Nkaissery, Mvurya ask community to return the favour by voting Jubilee in next year’s elections”

There are two take-home messages here.

One is that in making our judgments about the presidential citizenship declarations, we must take into account that although they have been inclusive for some, they also reproduce ethnic patronage politics more generally, and that is not always such a good thing.

The second is that Kenyans must remember there are checks and balances in place to ensure the proper conferral of citizenship in line with the law, and it is not up to the president. This is especially important for those whose citizenship is still denied.

Citizenship and IDs are given to individuals, not to groups

The practice of conferring citizenship looks – on the surface – as if it has been conducted on a community by community basis. This is how the president, the media, civil society groups and the UNHCR have presented the process for the Pemba people.

However, citizenship is an individual status. Despite appearances – the big ceremonies and targeted registration drives – every Makonde, Shona and Pemba individual had to go through their own process to either prove their right to citizenship by birth, or by registration.

Importantly, this means there are people in all these communities who, because of the inability to acquire sufficient proof, still do not have any citizenship. Civil society groups and bureaucrats must be careful to ensure nobody falls through the cracks, and that these individuals receive assistance in building their case to get their Kenyan documents when they are entitled to them.

There is no such thing as a register of Kenya’s ethnic groups

It is also important to recognise that, despite the presidential proclamations and other gazette notices of “tribes of Kenya”, there is actually no single, authoritative register of Kenya’s ethnic groups. When people refer to “the 42 tribes” and add 43 (Makonde) and 44 (Asian), this draws on the number of ethnic groups counted in the 1969 census, but that is usually not acknowledged. And the census is not a singular, fixed and definitive list of the ethnic groups in Kenya. It changes every decade, in fact, and now counts well over 100 if you include “sub-tribes” (and even if you don’t, the number is still not 42, or 44).

The idea, then, of giving a “tribe” a “code” is something of a fiction. It is a political stunt.

There are other lists of ethnic groups in use, including by the National Registration Bureau (though they are not transparent about this) and the Independent Electoral and Boundaries Commission to keep track of ethnic representation in political parties, and by the Public Service Commission to keep track of ethnic diversity in public service employment. But none of these are the same as each other, and some groups find themselves on one and not on the other. Being “recognised” with a code does not guarantee access to jobs or electoral constituencies.

Most importantly for this article, there is absolutely no list of ethnic groups that would mean that if your group were on it, you automatically get citizenship.

Where to from here?

The approach of the government and politicians has painted a misleading picture of citizenship, enabling its politicisation. It is our hope that there can be a more sensitive and informed discussion of citizenship and inclusion in Kenya that might adhere to the following principles:

Stop promoting the idea that the president grants citizenship to groups.

While it is great that presidents talk in inclusive terms, and they can continue to drum up political support for registration drives, they and others need to be more careful and clear that they are only implementing the law.

The executive’s “granting” of citizenship through declarations and orders for stateless communities without clarifying their legal basis makes citizenship acquisition look like a game of musical chairs.

Push the bureaucracy to do its job on citizenship

The National Registration Bureau and associated bodies have learnt a lot in these processes. Although they have targeted particular communities based on the political will generated by the presidential declarations, that does not mean these same capabilities cannot be put to wider use. Civil society must continue its important work of pushing NRB in this direction.

Individuals who believe they are Kenyan citizens by birth should have access to the same processes that seem to be proposed for Pemba people. The NRB has shown that there are ways of dealing with difficult situations where individuals may lack all the formal documents necessary, and it should make more use of them.

Being “recognised” with a code does not guarantee access to jobs, or electoral constituencies.

In some cases, an individual’s right to citizenship by birth is reasonably contested, and the NRB may deem they require “vetting”. However, vetting should only be directed at establishing if a person is a citizen by birth under the law. It should never be used because of an individual’s membership of an ethnic group. Vetting procedures should also be reviewed to be more transparent and less discriminatory, as recommended by the parliamentary committee considering the issue of ID cards for Nubian people.

In cases where individuals are applying for citizenship by registration, these processes could also be made more accessible, learning from these recent experiences, including by extending the timeline for the registration of stateless persons indefinitely. While the law unfortunately provides for discretion in some cases, this does not mean procedural improvements would not help in many of them.

Problematic as the misleading “mass grant” narrative is, can some of the gains of these processes be put to work for those who have previously faced mass exclusion? We hope so.