On 30 January 2023, President William Ruto, through a special issue of the Kenya Gazette, recognised the Pemba community as one of Kenya’s ethnic communities. The long-awaited recognition was received joyously by the Pemba who are said to have arrived on the Kenyan coast in the 1930s. Their recognition as Kenyan nationals under the law puts an end to the community’s statelessness. Now the government must ensure that they are issued with national identity documents and registered as citizens.
Registration of stateless persons in Kenya follows a three-step process. The first is the application by an individual for naturalisation at the immigration office. If it is approved, the immigration office will issue the applicant with a certificate of nationality. A national ID card is then issued to anyone with this certificate without questions. Stateless persons born in Kenya can also use the certificate of nationality to obtain a birth certificate.
While the proclamation is a big step towards ending the marginalised Pemba community’s long struggle for Kenyan nationality and citizenship, their woes will persist if they do not receive identity documents. In Kenya, the identity card is the gate-pass to citizens’ rights and benefits. Therefore, granting nationality to the Pemba without immediately issuing them with national IDs continues to expose them to the discrimination they have faced as a stateless community.
The nationality and citizenship question relates to the link between an individual’s rights and obligations on the one hand, and the state on the other. The absence of this link renders an individual or community stateless. Statelessness leads to marginalisation and exclusion from the political and social-economic opportunities accessible to citizens.
The decision to recognise the stateless Pemba community demonstrates Kenya’s commitment to ending statelessness within the country. Their recognition followed that of other previously stateless communities, including the Makonde from Tanzania and Mozambique in 2017, and the Shona from Zimbabwe in 2020.
It is believed that the Pemba people entered Kenya from the eponymous island in the Zanzibar archipelago and ventured into fishing as their main economic activity. They settled within the ten-mile strip which was then under the sovereignty of the Sultan of Zanzibar. The Sultanate of Zanzibar was formally recognised as a protectorate and, therefore, not subject to the British Crown. Consequently, people living within the ten-mile strip enjoyed certain rights that those living in colonial Kenya did not.
The coastal strip became part of Kenya after independence, and its communities, such as the Pokomo and the Mijikenda, were recognised as citizens, with the exception of the Pemba.
In the report of a petition dated 19 November 2020 and presented to parliament on behalf of the Pemba by Hon. Owen Baya, it was claimed that the Pemba were part of the Mwambao (“coastline” in Swahili) United Front, a group comprising Arabs, Europeans and Swahili communities that had been opposed to the coastal strip coming under Kenya’s sovereignty at independence.
Mwambao identified with the Sultan of Zanzibar to protect their privileges as laid out in the 1895 treaty with Britain. Some of the benefits they sought to safeguard included control over land by the elites, staffing of administrative posts and the free exercise and preservation of the Sharia along the coastal strip.
Despite their objection to the unification of the ten-mile strip with mainland Kenya, the coastal protectorate was transferred to Kenya in an agreement between Colonial Secretary Duncan Sandys, Sultan Seyyid Jamshid, Kenya’s Prime Minister Jomo Kenyatta, and Zanzibar Prime Minister Mohammed Shamte on 8 October 1963. The agreement stated that “the territories comprised in the Kenya protectorate shall cease to form part of His Highness dominions and shall thereupon form part of Kenya.”
The Independence Constitution did not guarantee that anyone residing in Kenya prior to independence would be recognised as a Kenyan. The Pemba, among other groups, were required to provide proof that they had been born in Kenya and to show their parental lineage. However, in the spirit of Pan-Africanism, the Kenyan government had, immediately after independence, directed the registration as citizens of people born or residing in Kenya but who could not prove their parental lineage.
By the end of the two-year window within which the registration exercise was to take place, about 20,000 people had applied to register as Kenyan citizens, the majority being of South Asian origin. In contrast, some African communities, including the Pemba, ignored or did not understand the implications of the directive, thereby missing the opportunity. Although they possessed the colonial and independent Kenya identity cards famously known as Kipande, the Pemba became stateless immediately after the 1st generation national identity cards were introduced.
The Independence Constitution did not guarantee that anyone residing in Kenya prior to independence would be recognised as a Kenyan.
Two significant reports highlight the challenges faced by stateless communities in Kenya. The first is the Katiba Institute report on Participation of Ethnic Minorities and Marginalised Communities in Political and Other Governance Processes: realities and approaches. The second is the report on the Public Petition No. 41 of 2020 regarding recognition of the Pemba people of Kenya as Citizens of the Republic of Kenya.
The latter report notes that, as a stateless community, the Pemba people were denied access to resources and opportunities at the disposal of their Kenyan neighbours. They could not access healthcare services, missed out on education and other social services, could not register births, businesses, bank accounts, and sim cards, and were excluded from formal employment. The former report adds that their marriages were also unrecognised under Kenyan law.
As a result of their marginalisation and exclusion from Kenya’s political and socio-economic spheres, the Pemba people began to demand recognition and protection of their human rights. In the 1970s and 1980s, their elders visited the Kwale and Kilifi district commissioners, pleading that the community be issued with national IDs. Despite unsuccessful attempts during President Daniel arap Moi’s era, their struggle almost bore fruit during Mwai Kibaki’s time as president. Members of the Pemba community were allowed to apply for IDs in a process that, however, did not go beyond the taking of fingerprints.
The report on the public petition presented in parliament reveals that the Pemba resolved to register themselves as a Community-Based Organisation and used it to print self-identification cards that they would present whenever faced by law enforcement agents. The report does not explain how the Pemba succeeded in registering a CBO without IDs. Their call for recognition began to gain momentum as they used the CBO to petition their respective county governments and area legislators for cultural and social inclusion.
Members of the Pemba community were allowed to apply for IDs in a process that, however, did not go beyond the taking of fingerprints.
Petition n° 41 of 19 November 2020 was the culmination of their struggle for identification and citizenship and was put before parliament by Hon. Owen Baya, Member of Parliament for Kilifi North. As a result, the Administration and National Security Committee was mandated to investigate the petitioners’ claims and report back to the National Assembly within sixty calendar days. Accordingly, the twenty-seven-member committee visited and held public hearings on 12th March 2021 in Kilifi and Kwale counties, where over 5,000 members of the Pemba community reside.
The committee observed that the Pemba are an indigenous community most of whose members were born in Kilifi and Kwale. Consequently, they must have registration and identification documents in order to access their rights, privileges and benefits as Kenyan citizens. The committee therefore recommended that the Pemba be recognised as one of Kenya’s ethnic groups and that the Ministry of Interior and Co-ordination of National Government ensure they are issued with the relevant identification documents in line with the law and the constitution.
It is within this context that President William Ruto recognised and declared the Pemba to be one of Kenya’s ethnic communities. The president’s proclamation was also in line with Kenya’s pledge at the High-Level Segment on Statelessness in October 2019 to, among other commitments, permanently remedy statelessness in Kenya through legal reforms by 2023.
The Constitution of Kenya 2010 provides for the registration of stateless people and, in 2011, parliament passed a new Immigration Act that required the registration of stateless people within five years. However, by 30 August 2016 the registration of stateless persons had not taken place.
Now that the Pemba have been recognised as Kenyan nationals, the most significant next step is for them to be issued with national identity cards so that they may begin to enjoy their right to education, health care, social protection, and access to financial services and the formal labour market.
Otherwise, if they continue to be denied access to the rights, privileges and benefits enjoyed by all other Kenyan citizens, their long struggle for recognition as Kenyans will have been in vain.
