Children’s citizenship rights

There are instances where people who are not Kenyans come to Kenya for one reason or another. During their stay, they end up having their children born in Kenya. It is at times these people’s desire to have their children’s nationality become Kenyan. Most of them believe that, a belief that isn’t true, by virtue of their children being born in Kenya, the children acquire Kenyan citizenship automatically. This is not the case as Kenya has its own citizenship laws.The Kenyan constitution and the Citizenship and Immigration Act sets out the requirements and procedures of acquiring Kenyan citizenship for both minors and adults.

Article 13(2) provides that citizenship can be acquired by birth or by registration. Citizenship is acquired by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth. These are the instances where one can become a Kenyan citizen by birth. Citizenship is also acquired by registration. A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen. A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen.

A child who is not a citizen, but is adopted by a citizen, is entitled on application, by the adopting parent or legal guardian to be registered as a citizen. Section 14 of the Citizenship and Immigration Act setsdown the requirements before one is registered, they are:-

•The production of proof of the Kenyan citizenship of the adopting parent.

•The production of a valid adoption certificate issued in a reciprocating state or other jurisdiction whose orders, decrees are recognised in Kenya

•Proof of lawful residence of the child in Kenya.

Children can also acquire citizenship by presumption of foundlings. Where a child is found anywhere in Kenya, and the age of the child is less than eight years, the government agencies shall take necessary steps to ascertain the origin and identity of the child, including the use of all forms of media. If the government department fails to establish the origin and identity of the child in question, then it shall present the child to the children's court and take out proceedings for the determination of the age, nationality, residence and the parentage of the child. The childrens court will then assess the measures taken by the government department to ascertain the origins and identity of the child, and may issue an order that the child be presumed to be a citizen by birth. The child will then be registered in the register of children presumed citizen by birth. This presumption is however a rebbutable presumption. Any person who has evidence as to the origin and identity of the child can bring it forth so as to rebut the presumption, since the origin of the child will now have been ascertained.

Section 9 (7) of the Citizenship and Immigration Act provides that any person who brings into Kenya, conspires, assists or facilitates the abandoning of a child with the intention of conferring citizenship on the child commits an offence and is liable, on conviction, to a fine not exceeding Sh10 million or imprisonment for a term not exceeding ten years or both. The presumption of foundlings would and can be used by child traffickers to traffick children into Kenya and then use the processes provided by the act for the presumption to confer citizenship to the trafficked children. Section 9 (7) however seeks to curb the menace by imposing serious penalties to the offenders.

It is therefore possible for foreigners to have their children registered as Kenyans if they meet the stipulated requirements of the Kenyan laws. The effect of registration will be that the citizens will enjoy all the rights, privileges and benefits that are enjoyed by citizens subject to lawful limitations. They shall also be obligated to exercise their duties as citizens.