“Everyone has the right to a nationality”

Examining the human impact of legal identity documentation – one client at a time

25 September 2013 | Laura Bingham, legal officer for the equality/citizenship issue area of the Open Society Justice Initiative

Working on issues like citizenship, equality and inclusion – issues that both inform and are informed by ponderous social constructs like belonging and identity – we spend a lot of time talking about “in-betweenness,” to borrow from Julia Sardelic’s post: about legal limbos, lacunae and protection gaps. For many of the people that we work with, these legal or theoretical “gaps” are also felt most acutely in the form of a negative: the absence of a document.

Legal identity – what it is and why it matters – is front and center for many advocates seeking to instill concepts of access to justice and the rule of law in the post-2015 development framework. As the General Assembly unfolds this week with a dizzying array of meetings, events and publications related to post-2015, all eyes are on New York. Back in May, a High Level Panel of eminent persons, convened by the Secretary-General, delivered its report reflecting one possible vision for future of global development. Illustrative goal 10, on governance, includes a target specifically addressed to legal identity: “provide free and universal legal identity, such as birth registration.”

Lack of access to documentation of legal identity can undermine access to citizenship and to services that are vital to allowing individuals to develop and thrive in society. But tackling “legal identity,” however defined, is only one way of addressing the bedrock problems that tend to undermine the right to nationality.

One of our recent projects lends an important opportunity to explore more deeply the relationship between obtaining legal identity documents and realizing the right to nationality (our core goal) and, it may be shown, other rights that are key to advancing human development (the HLP’s conclusion). The Open Society Justice Initiative (Justice Initiative) has partnered with Namati this year to develop several pilot projects employing a community-based paralegal methodology to assist certain communities in accessing documentation of citizenship. Our project in Kenya is an example, in which our joint partner the Nubian Rights Forum manages seven paralegals, currently handling over 600 individual applications for basic documents: national identity cards, birth certificates, death certificates and passports. Their original target was to reach just 150 cases between February and July 2013.

The Justice Initiative has been engaged in Kenya and specifically with the Kenyan Nubians for nearly a decade. We have undertaken several of interrelated projects, together with partners within Nubian communities across Kenya, to document the problems faced by Nubians in access to citizenship, and to fight to have the countless injustices they have faced as a community recognized and redressed, have led to important achievements, and some meaningful changes in practice. Many of these initiatives also, inevitably, led to further questions about how to realize total and lasting change: a system that no longer systematically targets Kenyan Nubians for heightened scrutiny; one that offers all individuals transparency, strong procedural safeguards and meaningful guarantees that the principle of equality will be respected in practice.

Working with the paralegals, we see Kenya’s civil registry and identity documentation practices in a level of detail that has not been possible through other methods of evidence gathering or research. Cases are documented and updated in real time through a secure online database. The data set accumulated through the paralegals’ work and the experience and knowledge they gain in implementing the project are invaluable assets.

It would be foolish to assume that this new tool will provide us with a flawless picture of what needs to be fixed and how, but the nature of the engagement means that each individual application is a chance for our team to reexamine these questions. At the same time, with each successful application, one layer of uncertainty is demonstrably eliminated: document in hand, the client is there to tell us what it means and the promise it holds for them.  

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