Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR Whether there was a Violation of the Right to Equality and Non-Discrimination 923. The 1st Petitioner challenges the impugned amendments on the procedural grounds relied on by the other Petitioners and supported by the Interested Parties who support the Petitions. At the core of its case, however, is the contention that the impugned amendments violate or threaten to violate the rights of members of the Nubian community and other vulnerable groups to equality and non-discrimination. The 1st Petitioner argues that the impugned amendments disclose violations of the rights to privacy, right to be free from any form of discrimination, citizenship rights, the right to dignity, as well as the right to information. It is also the 1st Petitioner’s contention that the impugned amendments implicate social- economic rights as well as the rights and the best interests of the child. 924. The 1st Petitioner’s arguments are set out in the submissions dated 19th June 2019 and Supplementary Submissions dated 8th October 2019. They were highlighted by the 1st Petitioner’s counsel, Mr. Waikwa and Mr. Bashir. 925. The 1st Petitioner’s case is premised on the contention that the system introduced by NIIMS will perpetuate the discrimination that members of the Nubian community have been subjected to over the years. It is submitted on their behalf that despite having been settled in Kenya more than 100 years ago and qualifying as citizens under Kenyan law, most of them have not been recognized as citizens and are treated as aliens, which they term as contrary to the constitutional prohibitions of discrimination. In support of this argument, it is submitted that Nubians are required to go through a long and complex vetting procedure to obtain identity cards and birth certificates necessary for recognition of their citizenship, and essential for everyday life. As a result, most of them have been unable to access the basic services offered by the State or to enjoy their constitutional rights. 926. In elaborating on the question of violation of the right to equality and non-discrimination the 1st Petitioner submits that through the NIIMS systems, the State is content to continue with the exclusionary practices under the present legal regime and leave thousands of people behind instead of fixing the present discriminatory practices. It is its contention that Nubians and other vulnerable minority groups in Kenya undergo mandatory heightened scrutiny on the basis of race, religion and tribe prior to registering as citizens and obtaining a national ID card. The averments of Ms. Fatuma Abdulrahman and Ahmed Khalil Kafe, as well as the supporting affidavit of Mr. Shafi Ali Hussein are cited in support. 927. The 1st Petitioner observes that the State has continued with the discriminatory practices despite international opprobrium and judicial censure of such practices. It contends that the Respondents have not controverted its contentions that, unlike other Kenyans, Nubians are subjected to an unfair and arbitrary vetting process in which they are required to prove their citizenship by producing extra documents such as their grandparents’ birth certificates which most of them cannot reasonably access. 928. In linking up the contention of past discrimination with the system mooted under the impugned amendments, the 1st Petitioner contends that enrolment in NIIMS presents a number of potential harms that will be suffered disproportionately by Nubians and other similarly situated groups. The basis of this contention is that there are hardships which they are already being subjected to which the Respondents were aware of at the time the impugned amendments were made. 929. According to the 1st Petitioner, these hardships are, first, that individuals who have been unsuccessful in obtaining documentation of their Kenyan nationality on account of the government’s discriminatory practices have been unable to enroll because enrolment hinges on possession of identity documents. The second is that the enrolment process requires an administrative determination of citizenship or non-citizenship. Accordingly, because of the ongoing effects of vetting and the exclusionary attitudes towards minorities it represents, Nubians are at a heightened risk of being “successfully” enrolled as non-citizens, even though they are entitled to Kenyan http://www.kenyalaw.org - Page 153/174