There is an invisible but numerous Kenyan population living in the shadows in the Kingdom of Saudi Arabia, worried about how to ever set foot at home. Hundreds of Kenyan Women Migrant Workers and their undocumented children are indeed trapped, victims of legal loopholes impeding the enjoyment of their basic rights and their immediate resettlement in Kenya. The conundrum they find themselves in is not an easy matter to resolve and requires strong political will and coordinated work of the Kenyan authorities to guarantee their protection, recognition and repatriation.
Women in Saudi Arabia, including foreign migrants, may face the death penalty for having children out of wedlock. The prospect of facing criminal charges poses an insurmountable barrier to registering a birth or applying to confirm a child’s nationality. This is even more difficult in the case of these Kenyan women who have lost their legal residency in Saudi Arabia since they fled their employers, and now live in hiding because of their illegal status.
Some may wonder how it is possible that so many Kenyan women find themselves in such a quagmire. A brief look at the numbers of Kenyans employed in the Kingdom of Saudi Arabia as domestic workers and at the legal framework regulating their status helps to make sense of it. Official Kenyan Government statistics indicated that, as of August 2023, there were about 210,000 Kenyans in Saudi Arabia, 151,687 of whom are women, employed as domestic workers. The number has increased since then and is deemed to grow even more, seen that the current administration has set an intensive labor export agenda creating 350,000 new jobs for Kenyans in the Kingdom (of which, approximately 2,500 are for skilled workers).
Saudi Arabia is unfortunately known for its extremely poor record regarding the labor rights and working conditions of domestic workforce, and plagued by complaints of mistreatment, including cases of severe physical injuries and deaths (between 2020 and 2022, 185 Kenyan women died in the Kingdom during their employment). For many women who do not receive help in securing their safe release from the hands of their employers, running away is the last bid to end abuse or even save their lives.
Saudi Arabia, as many other Arab countries, regulates the temporary residence of the domestic workforce through a controversial legal framework known as “Kafala system”, according to which foreign domestic workers must be sponsored by a local employer. The sponsor (kafeel) exerts almost total control over foreign workers’ residency, freedom of movement (or lack thereof), and right to work. If the workers run away, independently from the reason, incur criminal charges and must be “arrested until the finalization of the deportation procedures”. In practice, when arrested, illegal immigrants end up spending long periods of time (up to years) in deportation centers trying to raise the money for their tickets home and other debt they have incurred (including fines for fleeing the employer). The repatriation is not funded by the Saudi State.
There are between 4 and 5 million illegal immigrants in Saudi Arabia, most of them from Africa and Asia. Foreign workers who stay away from work without permission, refuse to work, or run away from the sponsor, are reported by the employers to the authorities as huroob (runaway/absconding). They lose their legal rights, salary dues, service benefits, iqama (Saudi ID), insurance, bank account, cannot work and are unable to leave the Kingdom except through deportation centers. They are known to the Kenyan public as “kembois”, and majority of them are women. Some happened to give birth in makeshift shelters and work illegally to sustain their children, who for the authorities simply do not exist.
This denied existence is the result of loopholes in Saudi nationality law, which does not provision the eventuality that a non-Saudi woman can give birth in the country from unknown father. Indeed, Saudi Arabia’s nationality law states that “Individuals born inside or outside the Kingdom from a Saudi father, or Saudi mother and unknown father, or born inside the Kingdom from unknown parents (foundling) are considered Saudis.” There is therefore no way for a child born from a known non-Saudi mother and unknown father to be registered at birth.
These stateless children are denied their most basic rights from medical care (including -of course- vaccines prescribed from birth) to education, as well as all the most necessary safeguards and protections, making them extremely vulnerable to child labor, sex and organ trafficking, illegal adoption, and other forms of exploitation and abuse. For the mothers, who are exposed to similar risks, the options are only either surrender themselves to the authorities, leave their children behind and start the deportation procedure for themselves alone, or continue leaving in the shadows with their children.
Hundreds of these women are now raising their children and their own voices in a strong quest for justice. In March 2023, they went to the Embassy of Kenya in Riyadh, where they received assistance to perform DNA tests to establish the biological relationship with the children, but the results are yet to be released. Non-profit organization Do Bold, which supports migrant worker communities, is assisting the group and has gathered details on each case. Global Justice Group, specializing in access to justice and remedy for victims of international crimes, is in the process of coordinating a coalition of Kenyan authorities toward obtaining legal recognition of the children and their repatriation together with the mothers.
The Convention on the Rights of the Child is an international legally binding instrument ratified by both Kenya and Saudi Arabia which has set standards for protection of the best interests of children. Article 2 calls on State parties to respect and ensure the rights set forth in the Convention irrespective of the child’s or his/her parent’s sex. Article 7 states that a child has “the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents … in particular where the child would otherwise be stateless.” Article 8 calls for States Parties to “undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations”. Saudi Arabia’s law does not fulfill these requirements.
The Constitution of Kenya in Article 14(1) grants citizenship by birth to any person whether they were born in Kenya or abroad, if EITHER the mother or the father is a Kenyan citizen. It also outlines in Article 53(1)(a) the right of every child to a name and nationality from birth. These children born in Saudi Arabia are therefore Kenyan citizens and as such deserve the attention, care and protection of their best interests spearheaded by the Government of Kenya.
In accordance with the mandate bestowed upon them by the Children’s Act, The Directorate of Children’s Services domiciled within the Ministry of labour and Social Protection ought to be spearheading and championing for the rights of these Kenyan children trapped in a foreign land. In collaboration with the State Department for Diaspora Affairs and the Office of the Attorney General, it is possible for the Government of Kenya to form a taskforce that will engage in the resolution of any legal challenges toward realization of safe repatriation of these Kenyan women and their children to Kenya.
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