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Post Reply: Citizenship Rights for Children of Kenyan-Refugee Unions

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on July 29, 2025, 2:06 pm</div><div id="pl-7291"  class="panel-layout" ><div id="pg-7291-0"  class="panel-grid panel-no-style" ><div id="pgc-7291-0-0"  class="panel-grid-cell"  data-weight="1" ><div id="panel-7291-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	<h2 dir="ltr" data-pm-slice="0 0 []">Introduction</h2>
<p dir="ltr">The High Court of Kenya at Garissa, in the consolidated Constitutional Petitions E001 of 2022 and E001 of 2023, delivered a landmark judgment on July 17, 2025, in <em>Haki Na Sheria Initiative &amp; 2 others v Cabinet Secretary Ministry of Interior and Coordination of National Government &amp; 5 others</em> [2025] KEHC 10567 (KLR). The court declared that children born from unions between a Kenyan citizen and a refugee or a person seeking refugee status are Kenyan citizens by birth under Article 14(1) of the Constitution of Kenya, 2010, and are entitled to all rights, privileges, and benefits granted by law. This commentary analyzes the legal implications of this ruling, its alignment with constitutional and international law, and its broader impact on citizenship and non-discrimination principles in Kenya.</p>
<h2 dir="ltr">Legal Framework and Constitutional Basis</h2>
<p dir="ltr">Article 14(1) of the Kenyan Constitution provides that a person is a citizen by birth if, at the time of their birth, either their mother or father is a Kenyan citizen, regardless of whether the birth occurs in Kenya. The court's declaration reaffirms this provision, emphasizing that citizenship by birth is an automatic right, not contingent on administrative processes or the status of the non-Kenyan parent. The ruling addresses the discriminatory practice of marking birth certificates of children born to Kenyan-refugee unions with "Refugee" or stamps from refugee agencies like the International Rescue Committee (IRC), which effectively denied these children full recognition as Kenyan citizens.</p>
<p dir="ltr">The judgment also invokes Articles 10, 27, 28, 29, 39, 45, 47, and 53 of the Constitution, which enshrine principles of national values, equality, human dignity, freedom and security, freedom of movement, family protection, fair administrative action, and children's rights, respectively. By declaring the respondents' actions unconstitutional, the court underscores that administrative practices that undermine these rights violate the supreme law of Kenya.</p>
<h2 dir="ltr">Key Issues Addressed</h2>
<p dir="ltr">The court's ruling tackles two primary issues:</p>
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<p dir="ltr"><strong>Citizenship of Children Born to Kenyan-Refugee Unions</strong>: The court clarified that children born to a Kenyan parent and a refugee parent are unequivocally Kenyan citizens by birth under Article 14(1). The practice of labeling such children as refugees through birth certificate markings or inclusion in the UNHCR/Government of Kenya refugee database was deemed discriminatory and a violation of their constitutional rights to equality (Article 27), dignity (Article 28), and freedom of movement (Article 39).</p>
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<p dir="ltr"><strong>Administrative Barriers and Fair Action</strong>: The absence of birth and death registration offices in refugee camps, such as Hagadera in Dadaab, was challenged as a barrier to accessing citizenship documents. While the court did not mandate the establishment of such offices, citing administrative discretion, it urged the respondents to consider improving access to registration services to ensure compliance with Article 47's requirement for fair and expeditious administrative action.</p>
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<h2 dir="ltr">Alignment with International Law</h2>
<p dir="ltr">The judgment aligns with Kenya's obligations under international human rights and refugee law, as domesticated under Article 2(5) and (6) of the Constitution, which incorporates general rules of international law and treaties ratified by Kenya. Key instruments include:</p>
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<p dir="ltr"><strong>1951 Convention Relating to the Status of Refugees</strong> and its 1967 Protocol, which mandate non-discriminatory treatment of refugees.</p>
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<p dir="ltr"><strong>African Charter on Human and Peoples' Rights (ACHPR)</strong>, prohibiting discriminatory deprivation of nationality.</p>
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<p dir="ltr"><strong>UN Convention on the Rights of the Child (UNCRC)</strong>, particularly Articles 3, 7, and 8, which emphasize the best interests of the child, the right to nationality, and the preservation of identity.</p>
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<p dir="ltr">The court referenced cases such as <em>ZH (Tanzania) vs Secretary of State for the Home Department</em> [2011] 2 AC 166 to highlight the link between citizenship and social identity, reinforcing that denying citizenship to children based on their parent's refugee status contravenes international norms on non-discrimination and the prevention of statelessness.</p>
<h2 dir="ltr">Implications of the Ruling</h2>
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<p dir="ltr"><strong>Non-Discrimination and Equality</strong>: The court's declaration that marking birth certificates with "Refugee" or entering such children's details in refugee databases is discriminatory sets a precedent for equal treatment. It aligns with the three-part test for discrimination articulated in <em>Kihoro &amp; Others</em> [2019] 1 KLR, which examines whether differential treatment constitutes discrimination, is unfair, and impacts the complainant's dignity or well-being.</p>
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<p dir="ltr"><strong>Protection of Family Unity</strong>: By addressing the separation of children from their Kenyan families due to encampment policies, the ruling upholds Article 45's protection of the family as a fundamental social unit. This is particularly significant for children like AMM, who were confined to refugee camps despite having a Kenyan parent.</p>
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<p dir="ltr"><strong>Administrative Reforms</strong>: The court's mandamus orders directing the removal of refugee markings from birth certificates and the exclusion of such children from refugee databases compel administrative reforms. These orders ensure that children born to Kenyan-refugee unions are treated identically to those with two Kenyan parents.</p>
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<p dir="ltr"><strong>Citizenship by Marriage</strong>: While the primary focus was on children, the court also addressed the rights of refugees married to Kenyan citizens for over seven years under Article 15(1). It recommended amendments to Sections 11 and 34 of the Kenya Citizenship and Immigration Act to recognize refugee identification documents as proof of lawful residence, addressing barriers to citizenship acquisition.</p>
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<h2 dir="ltr">Challenges and Recommendations</h2>
<p dir="ltr">Despite the progressive nature of the ruling, challenges remain. The court's decision not to mandate the establishment of registration offices in refugee camps leaves room for administrative discretion, which could perpetuate delays in accessing citizenship documents. Additionally, the recommendation to amend the Kenya Citizenship and Immigration Act within one year places the onus on the Attorney General and Parliament, and non-compliance could delay justice for affected refugees.</p>
<p dir="ltr">To ensure effective implementation:</p>
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<p dir="ltr">The government should prioritize establishing registration offices or mobile units in refugee camps to facilitate access to birth registration.</p>
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<p dir="ltr">Parliament should expedite amendments to the Kenya Citizenship and Immigration Act to recognize refugee documents as valid proof of residence.</p>
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<p dir="ltr">Awareness campaigns should be conducted to inform affected families of their rights under this ruling, ensuring they can seek redress for past discriminatory practices.</p>
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<h2 dir="ltr">Conclusion</h2>
<p dir="ltr">The High Court's ruling is a significant step toward upholding the constitutional and international rights of children born to Kenyan-refugee unions. By affirming their citizenship by birth and condemning discriminatory administrative practices, the court reinforces Kenya's commitment to equality, non-discrimination, and the prevention of statelessness. The judgment also highlights the need for legislative and administrative reforms to ensure that refugees married to Kenyan citizens can access citizenship rights without undue barriers. This decision serves as a beacon for protecting vulnerable populations and ensuring that constitutional guarantees are applied uniformly, regardless of parental status.</p>
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