Foundlings at risk of statelessness in Kenya: towards strengthened legal protection

Causes of childhood statelessness around the world

Childhood statelessness affects children who are not recognised as nationals by any country around the world. Globally, childhood statelessness is caused by gender discriminatory nationality laws that prevent women from conferring nationality to their children on an equal basis with men. Many countries around the world, including in Europe, lack adequate safeguards to identify where children may be at risk of statelessness, and to ensure every child born on their territory acquires a nationality as soon as possible or after birth. Additionally, in countries which grant nationality through jus soli, which confers nationality primarily to children born on the territory, children born abroad to parents from these countries, may be at risk of statelessness; if there are no safeguards to prevent this, or these are not properly implemented. Lastly, low birth registration rates and inadequate safeguards protecting foundlings from statelessness contributes to childhood statelessness in many countries around the world, including in Africa.

Efforts to address statelessness among adults and children in Kenya

Kenya is a party to the ICCPR, the CRC, and the African Charter on the Rights and Welfare of the Child. Consequently, the right to a nationality in Kenya is provided for under the Constitution, 2010 and the Children Act, 2022. However, Kenya is not a State party to the 1954 Convention Relating to the Status of Stateless Persons nor the 1961 Convention on the Reduction of Statelessness. Notably, the Citizenship and Immigration Act, 2011 defines a stateless person as “an individual who is not recognised as a citizen by any State under the operation of the laws of any State.” Therefore, Kenya has adopted the definition of a stateless person in line with the 1954 Convention within its nationality law.

Kenya has taken various positive steps to address childhood statelessness, including:

• Providing for stateless persons and their descendants to apply for Kenyan citizenship through registration. Through this provision, minority groups like the Amakonde, Shona, and Pemba who were formerly stateless have acquired nationality.
• Adopting gender-neutral legislation that allows men and women to pass nationality to their children on an equal basis.
• Registering the births of all children born in Kenya and issuing birth certificates as a way of preventing statelessness among children by providing a legal link between the child and the State.

Existing challenges in Kenya's legal framework

Statelessness in Kenya is mainly attributed to discrimination against minority groups such as the Nubians, Coastal Arabs, Galjeels, Kenyan Somalis, and people of Rwandese, Burundian, and Congolese descent, making it difficult for them to acquire documentation proving a legal bond between themselves and the State. As a result, children born to parents who face this discrimination inherit their parents’ lack of documentation, which prevents them from acquiring proof of citizenship and can result in childhood statelessness.

While Kenya has made significant efforts to address statelessness among adults and children, foundlings in particular remain at risk due to inadequate safeguards. A foundling is a child who is abandoned and of unknown parentage.

Kenyan law provides for the acquisition and revocation of citizenship. Citizenship is mainly acquired through birth (descent) and registration. A foundling of unknown parentage and nationality who appears to be less than eight years of age can acquire Kenyan citizenship and is presumed to be a Kenyan citizen by birth.  However, a foundling’s nationality may be revoked if:

• It was acquired through fraud.
• The foundling is found to be a national of another country.
• The foundling is found to be older than eight years old.

While States have sovereignty to determine their nationals and enact legislation on the acquisition and deprivation of nationality in accordance with international human rights law, depriving a foundling of nationality acquired through fraud or due to age restrictions may expose the child to statelessness if they do not possess another nationality at the time of revocation. Mai Kaneko, in her blog post Are parents of foundlings really “unknown”? - Avoiding statelessness under international nationality law’, posits that the implementation of the term ‘foundlings’ may result in statelessness for children who do not fit within the age restrictions in nationality laws or who are deemed old enough to communicate the identity of their parents.

International good practices for protecting foundlings

Article 2 of the 1961 Convention on the Reduction of Statelessness states that: “A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.” Therefore, State parties to the 1961 Convention are obligated to grant nationality to foundlings within their territories on the presumption that the child was born to parents who are nationals of that country, unless proven otherwise.

Good practices in protecting foundlings should also align with the guiding principles in the Convention on the Rights of the Child on the best interests of the child; non-discrimination; right to life, survival and development; and participation which should be upheld to ensure that children have a right to a legal identity and nationality.  Therefore, States should first, remove any age restriction that limits foundlings above a certain age from applying for nationality; and second, repeal laws that revoke foundlings’ nationality in cases where they do not possess another nationality, thereby exposing them to childhood statelessness. Finally, any action by States should not result in a child being left stateless.

Various countries provide adequate safeguards for foundlings to protect them from the risk of statelessness, including:

• In Africa, Egyptian children of unknown parentage born in Egypt are considered Egyptians. Similarly, in the Central African Republic, a foundling is presumed to have been born in the country and has a right to nationality. Both Egypt and the Central African Republic prevents statelessness among foundlings by not specifying any age restrictions for children of unknown parentage within their nationality laws, therefore allowing them to apply for citizenship until the age of 18.

• In Europe, Spain  grants nationality by birth to all foundlings, who can apply up to the age of 18, and then can opt for nationality for a further two years as adults. Additionally, a foundling’s nationality cannot be revoked if it would result in statelessness. Similarly, in Hungary, foundlings are considered Hungarian by birth and can apply for citizenship as long as they are a child (i.e. under 18 years of age), and a foundling’s nationality cannot be withdrawn unless they possess another nationality. 

• Latvia also provides citizenship to foundlings who are children (i.e. under 18) but additionally has the good practice that there is no provision to withdraw nationality from foundlings once this has been acquired. Türkiye prevents statelessness among children of unknown parentage by extending nationality to foundlings without age restrictions. It also does not provide for nationality to be withdrawn from foundlings but gives the option for the individual to renounce their Turkish citizenship if they acquire another.

Way forward for Kenya

Kenya has made commendable progress in addressing statelessness among children and adults, including extending citizenship to communities who were previously stateless and granting nationality to children under eight years of age of unknown parentage born in its territory. However, the age restriction leaves older foundlings at risk of statelessness. In addition, the revocation of citizenship from foundlings who obtained it through fraud places them at risk of statelessness if they do not possess another nationality at the time of the revocation.

Removing the age restriction for the acquisition of nationality by foundlings and introducing safeguards to ensure that a foundlings’ citizenship can only be revoked if the individual possesses another nationality would strengthen protections for foundlings and contribute significantly to efforts to prevent childhood statelessness in Kenya.