Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR decision in John Harun Mwau v. Independent Electoral and Boundaries Commission & Another [2013] eKLR. 950. The 2nd and 3rd Respondents emphasise, on the basis of the averments by Dr. (Eng.) Karanja Kibicho in his affidavit of 14th May 2019, that the process of vetting is neither a creature of the impugned amendments nor is it targeted at the Nubians only. It is also their submission that vetting is necessitated by, among other factors, national security and the fact that all individuals must prove their nationality before being issued with national identification documents. It is their submission that in any event, the question of the vetting process for border communities falls outside the purview of section 9 of the impugned amendments and of this matter. They reiterate that the impugned amendments are not in any way discriminatory against the 1st Petitioner or any other individuals residing in the country. 951. With regard to the reliance by the 1st Petitioner on the decisions of the African Commission and the African Committee on the Rights and Welfare of the Child, it is their submission that while the African Commission is mandated under the ACHPR to hear communications on violation of rights under the Charter and make recommendations, its recommendations are not legally binding on States, nor does the Charter obligate States to implement the recommendations of the Commission. They submit, however, that States are at liberty to implement such recommendations based on the principle of good faith based on their ratification of the African Charter. The 2nd and 3rd Respondents cite in support Nelson Enonchong’s article “The African Charter on Human and Peoples’ Rights: Effective Remedies in Domestic Law"” in which he notes that: “the African Commission has no jurisdiction to make binding decisions against state parties that have violated the provisions of the Charter. Once the Commission reaches a decision on the merits of a case, its only jurisdiction is to make recommendations to the Assembly of Heads of State and Government (AHSG) of the African Union (previously Organization of African Unity). But the AHSG itself cannot make binding decisions against state parties. It can only decide to permit publication of their violations.” 952. It is their submission that the above position notwithstanding, the Government of Kenya has implemented measures aimed at ensuring that Nubians and all other perceived marginalized communities are registered as citizens. They assert that it is within the knowledge of the 1st Petitioner that the government acknowledged and endeavored to ensure equality and non-discrimination against the Nubian Community. They draw the court’s attention to the letter dated 8th April, 2017 in which the 1st Petitioner acknowledged that the Government, through the National Registration Bureau, had taken commendable measures for the registration of Nubians. 953. The 2nd and 3rd Respondents assert that in any event, the recommendations of the African Commission and the African Committee on the Rights and Welfare of the Child cannot be implemented through constitutional petitions such as the instant ones, as the said recommendations were not based on interpretation of the Constitution of Kenya. 954. The 4th and 7th Respondents note that the challenge to NIIMS on the basis that it will perpetuate discrimination is based on the vetting procedures in obtaining an identification card as a prerequisite for registration in NIIMS, as emerged from the testimony of Ahmed Khalil Kafe (PW 3), Mr. Ali Shafi Hussein (PW 4) and Ms. Fatuma Abdulrahman (PW 5). They note that these witnesses all said that they had no issue with the Huduma Namba, their problem being with the vetting procedures that members of the Nubian community undergo in obtaining identification cards. 955. The 4th and 7th Respondents submit that, as outlined by Dr. Karanja Kibicho (RW 3), every person who applies for an identification card undergoes a form of vetting in which the Assistant Chief of the applicant’s locality must be able to first identify the applicant prior to approving the application. It is their submission that the 4th Respondent is clothed with the discretion, pursuant to section 8 of the Act, to require further information from http://www.kenyalaw.org - Page 157/174