Will Nubian children have to go to the African Court?

Author: Ayalew Getachew Assefa
Lecturer in Law, Makelle University, Ethiopia

Reflections on the Decision of the African Committee of Experts on the Rights and Welfare of the Child concerning the violation of the rights of Nubian children in Kenya

The African Committee of Experts on the Rights and Welfare of the Child (the Committee) has recently made a decision on the communication concerning the violation of the rights of Nubian children in Kenya. (Communication 002/2009 Institute for Human Rights and Development in Africa and Open Society Justice Initiative on behalf of children of Nubian descent in Kenya v Kenya). This body’s first ever decision tells much about the avowed intent of the Committee to address the challenges of the Nubian children as it goes a great length despite the continuous disregard of cooperation from the government of Kenya. In its well-articulated decision, the Committee finds the Government of Kenya in violation of the right to non-discrimination, nationality, health and health services, protection against statelessness and education of Nubian Children living in Kenya. Addressing a wide range of issues, the Committee even goes beyond what was requested by the applicant and interpreted Article 31 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter) in the light of the issues raised (para 66).

The decision of the Committee should be commended for taking a step further in developing African jurisprudence on children’s rights. Its stance reveals deep reflections of the problems affecting throughout the continent. However, there are a number of areas of concerns which were overlooked by the Committee.

First, in discussing the alleged violation on the right to education, the Committee asserts that the Nubian children were provided with ‘fewer schools and disproportionally lower share of available resources in the sphere of education’ (pars 54 & 65). This fact forms part of the main grounds on the basis of which the Committee reaches the conclusion that the Government of Kenya has violated the right to education of Nubian Children. However, the Committee should have backed its position by further elaborating with the necessary data which, among other things, might show the amount of budget allocated, the number of schools built, and the teacher and student ratio in these particular Communities as compared to other regions in Kenya.

Furthermore, the Committee, in some of its arguments, relies on ‘unconfirmed indications’. It is understandable that the absence of cooperation from the Government of Kenya makes the investigation very difficult. However, investigating some issues, like ‘whether the case is still pending in the High Court of Kenya’ does not strictly require the Government’s engagement into the matter. Instead of relying on such ‘unconfirmed indications’, the Committee could have investigated the fact in cooperation with some other local NGOs and Human Rights Institutions in Kenya. There are also typos and other systematic errors with regard to the choice of language and phrasing that could have been taken into consideration. For instance, the second line of paragraph 54 states ‘buy the Government…’ intending to say ‘by the Government…’

Finally, it is important to anticipate the challenges in relation to enforcement of the decision. As it is stated in paragraph 69 of the decision, the Committee recommends that the Government of Kenya report on the implementation of the decision within the coming six months. However, bearing in mind the previous trend of non-cooperation, it is less likely for the Government of Kenya to comply with its obligation. In such likely event, the Committee should consider referring the case to the African Court on Human and Peoples’ Rights (African Court). According to Article 5(1)(e) of the Protocol to the African Court, African intergovernmental organizations can submit contentious cases to the court. As one of such organisations, the African Committee of Experts can take the case before the African Court, which, in a way, enhances the required collaboration between the African Committee of Experts and the other Regional organs.

About the Author:
Ayalew obtained his LLB from Makelle University Ethiopia in 2006 and an LLM in Human Rights in Democratization in Africa from the University of Pretoria South Africa in 2011. He is a lecturer in Law at the Makelle University and the editor in chief of Makelle University Law Journal.