, NAIROBI, Kenya, May 18 – The Committee of Experts (CoE) has defended a clause in the Proposed Constitution that allows children aged eight and below whose nationality and parents are unknown to automatically become Kenyan citizens.
In an interview with Capital News, CoE member Bobby Mkangi said Article 14 (4) should not be misconstrued to mean creating leeway for child traffickers but a means of protecting the rights of Kenyan children.
Mr Mkangi who pointed out Uganda and Ghana had similar provisions, also added that the international convention on the rights of children called upon countries signatory to the United Nations Conventions to protect children found within their borders.
“One of the particular rights of children is the right to a name and nationality which facilitate their enjoyment of other rights. We held on to this clause because it is contained in the previous drafts and has never been identified as contentious. It is our duty to protect children,” he said.
Foreign Affairs Minister Moses Wetangula has previously expressed concerns with the clause, and sought to introduce an amendment when debate on the draft law took place in Parliament.
“I was very uncomfortable with that clause for obvious reasons – that we will be creating room for possible child traffickers who will bring children from conflict zones and dump them here. And since the Constitution says that in the absence of everything else, they’ll be presumed to be Kenyans, you can imagine the fall out,” he said.
Mr Mkangi however pointed out that it was up to the government to ensure proper mechanisms were put in place to ensure Kenyan borders were not so porous to allow foreigners to come in and out of the country at will.
He further explained that concerns raised by various persons over the clause assumed that Kenyan borders were already porous.
“Because we have laws that govern how people come in and get out of Kenya including how children are accompanied and how people seeking asylum and refugee statuses are treated, the fear that people are about people sneaking in children actually speaks more about other issues in our country,” he said.
He also added that Article 17 (2) of the Proposed Constitution stated that in the event children (who were granted citizenship) were found wanting in their eligibility, then their nationality would be cancelled.
“Later if the nationality or parentage of such a person is revealed or comes to be known or it is revealed that the age of the person which was presumed to be eight or below was wrong and that the person is older than that, their citizenship will be revoked,” said Mr Mkangi.
The reason why the CoE settled on the age of eight is because children start attaining self identity between the ages of seven and 12. It is also around this time that they start enjoying public services like education.
Some church leaders have also taken issue with the article.
Article 14 (4) of the Proposed Constitution states: 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.
The clause was borrowed from the Proposed New Constitution of Kenya, 2005 (popularly known as the Wako draft), the National Constitution Conference Draft (known as the Bomas Draft that was released in 2004) and also in the Constitution of Kenya Review Commission draft (also known as the Ghai Draft).