Citizenship Rights: The Quest for Identification

Civil rights organisations and community-based organisations in Kenya have disparaged the new registration requirements for national identity cards issued to communities residing on border and cosmopolitan areas of the country. The new regulation is criticised for maintaining an unfair and potentially arbitrary procedure for ID applications that is similar to what was in place. 

For many years, groups like Kenyan-Somalis, Nubians, and Kenyan Arabs have lamented unfair identification and verification procedures, which go against the equal treatment principle (Maasais and Tesos have reported comparable difficulties). Members of these ethnic groups are subjected to a vetting process to prove their citizenship in order to be eligible for a Kenyan ID.

Under growing pressure from these groups and with support from civil society organisations and community-based organisations, President Ruto declared that vetting committees would be eliminated by 1 May 2024. But according to the new guidelines, which were made public by the State Department for Citizen Services on 29 April 2024, vetting committees have been replaced with yet another bureaucratic process that includes chiefs and security agencies (Directorate of Criminal Investigations and the National Intelligence Service) with discretionary power to grant IDs. 

Examining the intricate relationship between identification, rights assertions and citizenship claim-making, raises the question of why communities along Kenya’s borders and in cosmopolitan areas are not able to reap the benefits of the reforms aimed at promoting inclusive citizen identification. Three claims are at the centre of this investigation: citizenship among the aforementioned communities is presented as an issue of ineligibility; the identification procedure is not based on well-documented standards and instructions to the relevant officials; citizenship is overemphasised as a matter of national security rather than rights.

To comprehend these assertions and the challenges encountered by communities like Nubians and Kenyan-Somalis in establishing their citizenship, it is necessary to ground the registration and identification procedure in historical flow and approach it analytically instead of programmatically. 

The complex nature of this interplay can be traced to the 1915 Native Registration Ordinance that discriminated against the registration of women. Only African males aged 16 and above were registered and issued with an identification document, known as a Kipande, that was carried in a small copper box hanging from the neck by a chain. Similarly, the 1947 Registration of Persons Ordinance required males of all races aged 16 years and above to be registered. However, it failed to address gender-based discrimination while at the same time making a distinction between protectorate and non-protectorate individuals. The discriminatory aspect of these laws was in the identification and registration of Blacks separately from Whites.

At independence, and in subsequent years, the government attempted to address the issue of citizen identification and registration through the constitution, amendments to the law, and various citizenship Acts. For example, the independent constitution, and later the 1963 Kenya Citizenship Act (KCA), permitted British-protected persons and persons of African descent to register for Kenyan citizenship via birth, registration or naturalisation. The challenge with these reforms was that an applicant had to prove his/her citizenship through a minister with vast powers to deny or grant a Kenyan ID. 

In 1978, the late President Moi’s regime amended the Registration of Persons Act that reserved identity cards for Kenyan citizens, including women, while alien cards were introduced for foreigners. Due to the modification, some historical migrant groups and communities who were considered “outsiders” were no longer eligible to receive citizenship documents. The final nail on the registration process was, however, hammered by Section 89 of the 1985 constitutional amendment that effectively denied Kenyan citizenship to qualifying persons.

In 2010, two significant concerns were addressed in the constitution that brought about a new system of establishing citizenship. The first addressed the discriminatory provisions regarding citizenship acquisition to include children born outside Kenya to a mother who is a Kenyan citizen. The second concerned dual citizenship. In addition, the law now includes historically marginalised and discriminated-against individuals – and their descendants – as potentially eligible candidates for citizenship by registration.

Even with the new constitution’s goals of realising equality and non-discrimination, groups such as Kenyan-Somalis, Nubians, Maasai, and Tesos still have trouble getting identification documents that serve as confirmation of their Kenyan citizenship. The Identity Card plays a pivotal role in establishing an individual’s entitlement to fundamental rights and is closely linked to citizenship and nationality in Kenya. A person cannot exercise their citizenship rights – including the right to vote, work, receive healthcare, and own property – without an ID.

Thus, the pressure, both as a demand for socio-economic and political rights, and as an assertion of citizenship status by the affected communities, led to the call for the dissolution of ID Vetting Committees. The committees (composed of a Deputy County Commissioner [Chairperson], Civil Registration Officer, Registration Officer, three elders nominated by the community and chiefs/assistant chiefs) were accused of applying non-standardised screening procedures to ID applicants from certain ethnic groups. In essence, a person must show the registration official their birth certificate and parents’ IDs as proof of age and citizenship. 

The Vetting Committee has come under fire for allegedly asking for more information and documents beyond what is required by the Registration of Persons Act. This information includes land title deeds, screening cards, and grandparents’ identification documents for citizenship verification. Affected community members have also complained about corruption and the unusually long waiting times for appearance before the vetting panel. 

On 8 April 2024, President Ruto announced the dissolution of ID Vetting Committees and directed the Ministry of Interior to develop new procedures to enable affected communities to be easily identified and registered. The new guidelines that were published on 29 April 2024, however, have been criticised by the affected communities, civil rights organisations and community-based organisations for being a replicate of the abolished process. The new process requires an applicant to prove his/her name, age, citizenship, and to present a birth certificate and a parent/guardian’s ID as identification documents. It also requires a letter of introduction from the local chief, a parent or guardian to thumbprint the application, a follow-up verification from the chief, with the application being sent to the Directorate of Criminal Investigations and the National Intelligence Service for additional verification.

In a joint statement, a coalition of civil society organisations criticised the new procedure that has a set of steps involving the same government departments that have led to requests being denied, much like was the case with the Vetting Committees that were dissolved. They reasoned that the chiefs’ discretionary powers could be used to recreate the experiences under the Vetting Committees, including requests for bribes from committee members. The ad hoc inquiries and review processes of the ID applications may result in protracted delays in the ID approval procedure.

Their concerns validate the three major claims made here. The first argument points to the lack of a clearly documented framework with instructions for the application process. How, for instance, does a chief identify a person? Which standards will the chief apply when confirming and verifying an application? Will all chiefs employ an identical verification procedure? Are applicants required to be aware of any checklists issued by the Directorate of Criminal Investigations or the National Intelligence Service? Will the applicant be informed of the reasons in case both these entities reject their application? 

The second assertion relates to the framing of Kenyan citizenship as a case of ineligibility, based on the assumption that an individual from the aforementioned communities seeking identification will be “properly seen” and then properly registered. The impacted communities are still subjected to discrimination since they are initially deemed ineligible for Kenyan IDs unless they demonstrate that they deserve citizenship. 

The third claim addresses the notion that terrorism and crime are associated with communities and religious groupings, making citizenship an issue of national security rather than rights. The view that an applicant is first ineligible for an ID justifies the ongoing prejudice, marginalisation, and denial of identification to eligible Kenyan citizens who reside in border and cosmopolitan areas.

In order to comprehend the replacement of Vetting Committees with an ad hoc review process containing a series of steps, it is imperative to revisit the history and context surrounding Kenyan citizenship identification. History reveals that the discriminatory process of citizen registration hacks back to the colonial period where gender, race and descent played a significant role. The context in the post-independence period is threefold: lack of clear guidelines, citizenship as a question of ineligibility among the aforementioned groups, and the interplay between citizenship, national security and rights.

To ensure that ID application processes are free from discrimination and unfair treatment, the following factors need to be considered: First, right historical wrongs by providing IDs to Kenyans who were previously turned away due to biased screening. Second, make sure the application requirements and the new bureaucratic process involving ad hoc reviewers are clearly defined, and establish legal grounding for the procedure. Third, granting IDs to Kenyan citizens should be seen less as a national security issue and more as a matter of rights.