Are punitive measures the best approach to increasing registration levels in the country?

mustafa_mahmoud · October 15, 2015, 5:09pm

Reflecting on the findings of the mobile birth registration that NRF in conjunction with Namati and UNHCR held last month where out of the 2,100 birth applications only 408 of the 420 births certificates issued were collected and the others are still being processed. This event that only lasted for three days on the ground with this high turn out. The collection day just like the application day had a huge turn out as seen in the picture and still the paralegals played a major role of guiding the applicants in checking for errors, advising those whose applications were denied on additional supporting documents for their applications and even to call the applicants who never came to collect their birth certificates and those who had not yet aid for their births to be processed.

Applicants surrounding Zena one of the NRF paralegals checking for errors in the certificates before collecting them.

That acting as the preamble of my short article I would like to go back to my main topic and that’s on whether punitive measures should be the solution to increasing the registration of persons in the country taking case study of the registration of persons bill 2011 which has several versions that its even next to impossible to get the exact clause number but the text for the penalty is constant. In some of the versions bills I have interacted with its section 22:

Any person who (a) Fails to apply to be registered in accordance with the provisions of this act Commits an offence and shall upon conviction be liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding six months or to both.

The bill can be downloaded from the link below:

http://www.cickenya.org/index.php/resource-center/downloads/item/download/62_125df3873f759ecaa979c18da89e9e47

In the other version it’s found in section 451.

(1) A person who is under legal duty to give notice of birth or death and who, without reasonable cause, fails to do so within the appropriate period provided in this Act commits an offence and shall be liable, upon conviction, to imprisonment for a term not exceeding six, or to a fine not exceeding fifty thousand shillings or both.

And in the other version its section 48 (a) which reads fairly the same way as quoted above. Though am not a lawyer but the text is so clear though I stand guided by the learned fraternity @paulmccann @vivekmaru @Purity_Wadegu @lauragoodwin @laurabingham

The sad bit is that this section is being supported and even has been proposed by the civil society who are entrusted as the voice of the voiceless. The excuse being that it is the right to other rights and rights come with responsibilities.

So why did I begin by acknowledging the roles of paralegals and stating the findings of the mobile birth certificate event? I wanted you to get a glimpse of the findings where 60% of the cases were late registration cases and bearing in mind that its a settlement that is located in a walking distance to the registration offices that by bus it could take 10-15 minutes to reach while it will take you 30 minutes by foot. Some of the reasons for the late registration can be related to bureaucracy, ignorance, though it is not an excuse in law, and even some blame it on poverty as many of the persons living there live below a dollar scale and have no permanent jobs. I know this is the situation in many parts of the World and in Brazil birth registration is free and for the poor they are even provide with more copies of the document free of charge.

In relation to the above context, I would like you to picture the condition of pastoral communities in Wajir which @muktar can be my witness, where it might take several months for the communities to reach the city center while searching for pasture and water during the dry period which takes more than two thirds of the year, what shall be the fate of such communities? Or in areas like in Kwale county where one has to travel half day to file an application and the cost of transportation can feed the family for a week and @Lore can bare witness t that. Should the people have to be punished for the state failing to fulfill its obligation to the rights of every child who has the right to be registered? By doing so are we shifting the responsibility of the state to the people who can not control the registration process?

I don’t know if such punitive measures have yielded success in other countries and has it increased on the registration level? How effective is it? Lets ponder on that…

Lore · October 15, 2015, 3:06pm

When it comes to increasing registration levels, it is true that punitive measures can do very little. It is important to note that the punitive measures in the proposed bill is not to increase the registration numbers, but rather to prevent deprivation of citizenship due to lack of registration.

In Kenya, current birth registration do not require one to move to the registration centre and it is done free of charge. Currently current birth registration is done at the locational level, and some areas at the village level.

Purity_Wadegu · October 16, 2015, 1:13pm

Well @mustafa_mahmoud an interesting question has popped up in my mind, The government wants to punish people who do not have these documents. So shouldn’t the government come up with better structures to ensure that the public are able to access these documents at the appropriate time? I mean they give out birth notification and burial permits, Why not switch that and put up an improved structure where Birth certificates are issued immediately… well as we have established, applicants are more likely to give false information if the application is late.

mustafa_mahmoud · October 16, 2015, 2:52pm

Reading your reply made me smile. Sorry to say but that phrase is just sugar coating the fact that you are divided between the importance of punishment versus the dangers of punishment. Leaving that aside, lets be factual my brother, we are all are that many people both at the village level and the town level the poor depend on Traditional Birth Attendants who do not register births. Secondly we need to make a distinction between registering the event and getting a notification for the event which is for free and registering the birth to get a certificate of course it ain’t for free and it should be clear that the certificate is the recognized document for a registered birth. To top to the burden of registration I hope you have interacted with the bill and you know that registration starts from 12 years and shall end at 17 years of identification, the article stipulates not registering as an offense and we both know it shall be a big challenge and I hope we wont be subjecting these minors to possible arrests.
@Purity_Wadegu I do conquer the government should not shift its responsibilities to the applicants and then punish them for their own failures. @Lore I strongly believe in @Purity_Wadegu when she requests for better systems and I know you understand the distance challenge to the registration offices.

Lore · October 16, 2015, 3:33pm

@Purity_Wadegu I totally agree with you “on the Government should switch and put an improved structures where Birth certificates are Issued Immediately”. In deed this speaks the problem at the coastal region of Kenya. @mustafa_mahmoud this proposed punitive measures is not about penalizing those without birth certificate; but it is penalizing those who refused to register their children at birth. And this registration is to be done by registration agents i.e village heads (who are more in numbers as compared to Traditional Birth Attendance). Finally, I agree that the government has the responsibility to register but the citizen also have a responsibility to ensure they are registered. @Purity_Wadegu just posted about your recent Mobile Birth registration drive, and at the end she noted that it is not about ignorance.

peninah · April 18, 2016, 6:14pm

On the issue of registration in Kenya, I had an experience where women, many of them sex workers in Majengo, Nairobi, were arrested, some were Uganda and Tanzanian nationality, at the police station it was discovered that some did not have valid papers (although I though all we need in East Africa is a passport or I.D card). Many women have lived in Kenya for more than 7 years.

To @mustafa_mahmoud I ask:

Does Haki help these women to renew their documents?
Do those who have been residents for 7 years in majengo qualify for Kenyan citizenship?
What about their children born in Kenya and not registered at all?

Thank you Mustafa.

Peninah Mwangi- BHESP

Lore · April 19, 2016, 5:28pm

Good question @peninah_bhesp_org. Question one is a challenge to us, and we shall strive to segregate our data to capture such important information. Currently, our data only covers the bio data of the clients and the nature of documents applied for. Hence not able to know of their profession. Second question. Being a residence of Kenya for seven years is just one of the requirements to qualify for Kenyan citizenship. It is not automatic that once the seven years elapses then you are a citizen; one mist go through a process. Hence you can lawfully reside in Kenya for all your life, but fail to become a Citizen because you did not follow the procedures. You can refer to Kenyan Citizenship and Immigration Act of 2012 in particular section 13. Question 3: Those children are only entitled to a birth certificate while they are bellow 6 months (Note: birth certificate is not a prove of citizenship). You can refer to my earlier article on how children acquire citizenship in Kenya. @mustafa_mahmoud, @lauragoodwin @amoory @AndrewOchola @Purity_Wadegu and any other person can add on what I have not covered.

mustafa_mahmoud · April 19, 2016, 7:35pm

@peninah_bhesp_org Thank you for your very nice questions. First which documents are they renewing? I would also like to bring to your attention that prostitution is a punishable offense in Kenya and thus they cannot get a work permit. So this brings to question on their lawful stay. @Lore thanks for citing this article

13 Lawful residence (1) A person who has attained the age of majority and capacity who has been lawfully resident in Kenya for a continuous period of at least seven years may on application be registered as a citizen if that person— (a) has been ordinarily resident in Kenya for a period of seven years, immediately preceding the date of application; (b) has been a resident under the authority of a valid permit or has been exempted by the Cabinet Secretary, in accordance with section 34(3) (h) and who is not enjoying the privileges and immunities under the Privileges and Immunities Act (Cap. 179);

What this means is you should have a lawful stay and conducting a lawful business because one of the requirements is a good conduct certificate. On a lighter note do you think they can get this document?

In addition, the proof of lawful stay is very broad but narrowed by the discretion of the registrar. For the children, were they born in the hospital? Or at home? Are their fathers known? Are they Kenyans or non Kenyans? How old are they? Did they take them for vaccination? Did they attend pre-natal clinics?

In order for me to answer you fully I would like you to furnish me with these information to get alternative options in the cases. but also the paralegals can cheap in and add more info. @Purity_Wadegu @yasahkym @zena and @lauragoodwin

lauragoodwin · April 21, 2016, 4:28pm

Thanks for raising these questions @peninah_bhesp_org - and thanks to @lore and @mustafa_mahmoud for your thoughts!

Since Lore and Mustafa already addressed the 7 year requirement (must be a lawful stay, and citizenship still isn’t automatic - nor is any other status) I wanted to add a couple points on the nationality and documentation of children born to these women.

In Kenya, citizenship by birth is not granted based on being born within the territory of the country - it’s based on having either a Kenyan mother or father (or both). If the fathers are unknown and the mothers are foreign nationals, such as from Uganda or Tanzania, the children aren’t eligible to be Kenyan citizens by birth. However, they should be able to get a Kenyan birth certificate since they were born in the country - and the process will be much easier if they were born at a hospital and are registered within 6 months of birth. The children may qualify for Ugandan or Tanzanian nationality through their mother - though I am not familiar with the nationality laws in those countries. You may want to assist the women in contacting their respective Embassies in Nairobi to find out what documentation they may need to bring to have the children registered as citizens of the mothers’ country of origin. (A Kenyan birth certificate stating the date and place of birth, as well as the particulars of the mother, is a likely requirement!)

Hope this helps somewhat - and feel free to send a direct message if you want to discuss specifics of cases or have us put you in touch with lawyers who are experts on nationality law in the country!