54. As a result of the above, the African Committee finds violations of Articles 6(2), 6(3) and 6(4) of the African Children’s Charter buy the Government of Kenya. Alleged Violation of Article 3 55. The Complainants allege that children of Nubian descent in Kenya are treated differently from other children in Kenya, for which there is no legitimate justification, amounting to unlawful discrimination and a violation of Article 3 of the African Children’s Charter. They further allege that the fact that children of Nubian descent are expected to go through a lengthy and arduous process of vetting (including requiring them to demonstrate the nationality of their grandparents, as well as the need to seek and gain the approval of Nubian elders and governmental officials, etc.) is discriminatory, and depriving them of any legitimate expectation of nationality, and leaving them effectively stateless. 56. Racial and ethnic discrimination are prohibited as binding jus cogensnorm of international law. The African Children’s Charter is no exception. Article 3 provides in full that: [e]very child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status. The current facts in relation to children of Nubian descent in Kenya indicate a prima facie case of discrimination and violation of Article 3 of the Charter. As a result, the burden shifts to the state to justify the difference in treatment indicating how such a treatment falls within the notion of fair discrimination. The failure of the State to be present for a consideration of this Communication makes such an engagement impossible. However, the African Committee weighed whether the treatment of the children of Nubian descent in Kenya can be considered to be a fair discrimination, but found otherwise. For instance, in a very similar case involving children of Haitian descent in Dominican Republic, it was held that the refusal and placing of unfair obstacles by local officials to deny birth certificate and recognition of the nationality of Dominicans of Haitian descent as part of a deliberate policy which effectively made the children stateless constituted racial discrimination.20 Moreover, after a thorough investigation of the situation of children of Nubian descent in Kenya, the Kenya National Commission on Human Rights has concluded that “the process of vetting… Nubians… is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society”.21 57. The current practice applied to children of Nubian descent in Kenya, and in particular its subsequent effects, is a violation of the recognition of the children’s juridical personality, and is an affront to their dignity and best interests. For a discriminatory treatment to be justified, the African Commission has rightly warned that “the reasons for possible limitations must be founded in a legitimate state interest and … limitations of rights must be strictly proportionate (sic) with and absolutely necessary for the advantages which are to be obtained”.22The African Committee is not convinced, especially in relation to a practice that has led children to be stateless for such a long period of time, that the current discriminatory treatment of the Government of Kenya in relation to children of Nubian See, generally, Yean and Bosico v. Dominican Republic, I-ACtHR Judgment of 8 September 2005. KNCHR, (note 10 above), vi. 22 Legal resources Foundation v. Zambia, Communication No. 211/98, para 67 20 21 12