Government sued for failing to recognise Kenyan, refugee unions

The two women argue that refugees' eligibility for citizenship through marriage remains an unsettled issue. [iStockphoto]

Two women have sued the government for failing to recognise marriages between refugees and Kenyans.

In their case filed alongside a human rights lobby Haki na Sheria, the two codenamed FYO and FMA argue that despite being in a marriage with Kenyans for more than seven years, the government has declined to change their statuses, thus denying them an opportunity to live with their husbands.

In her case, FYO narrated that she married her husband codenamed AAI, a Kenyan, in 2005. The two have been together for at least 17 years and have four children.

At the same time, FMA is a wife of a Kenyan codenamed AHF. In her court papers, she narrates that they have been married for 10 years.

The two women live at Hagadera Refugee camp in Dadaab. They, however, lament that their marriages have been set up for failure owing to the prohibitive law.

"Due to legislative and administrative hurdles highlighted herein, they cannot successfully enjoy the right to citizenship envisaged by the Constitution in Article 15 (1)," their court papers filed by Bashir and Noor Advocates read in part.

In the early 1990s, Kenya received the largest number of asylum seekers following civil wars in Somalia and South Sudan. Most of them were issued refugee identification cards.

In order to accommodate the large numbers of refugees, Kenya established Ifo, Dagahaley, Hagadera in Garissa County and later Kakuma refugee camp in Turkana County.

The camps are host to Congo, Rwanda and Ethiopia nationals who escaped war in their home countries.

As love knows no boundaries, some ended up in marriages with Kenyans. Countless families have grown from the unions.

The two women argue that the law does not allow refugees to have documents such as passports and visas, and therefore they cannot immigrate if their spouses want to leave the country.

According to court documents, a foreigner married to a Kenyan is entitled to citizenship if the two have been married for at least seven years.

However, the two women argue that refugees' eligibility for citizenship through marriage remains an unsettled issue.

FYO and FMA have sued Interior Cabinet Secretary, Director-General of Citizenship and Immigration Services, Registrar of Persons and Attorney General.

"The petitioners assert that the drafters of the Constitution advertently established citizenship by marriage separate from citizenship by residency, thus giving an inkling as to the importance of the institution of marriage as the basis for the formalisation of the family which is recognised as the fundamental unit of society by Article 45 of the Constitution.

The petitioners contend that Section 11 of the Kenya Citizenship and Immigration Act is inconsistent with Articles 15 (1) and 45 of the Constitution in so far as it establishes an additional criterion for citizenship by marriage not prescribed by the Constitution and in fact otherwise provided for in Article 15 (2) of the Constitution," court papers filed before the High Court read.

They want the court to find that the law makes it impossible for refugee spouses to seek citizenship. According to them, it is unlikely for a refugee to even attain residency status, which is a gateway to citizenship.

"By excluding the refugees from the purview of persons who could apply for dependent's pass and permit and simply envisioning only other foreign nationals as eligible candidates for the same, amounts to a violation of the right to equality."