MUCEE: The legal minefield that is Kenya’s dual citizenship

Friday October 25 2019

The new electronic passports. PHOTO | COURTESY

The new Kenya electronic passport. PHOTO | COURTESY | IMMIGRATION DEPARTMENT 

GEORGE MUCEE
By GEORGE MUCEE
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As the debate about Mwende Mwinzi’s—a nominee for ambassadorship South Korea—dual nationality and her appointment rages on and drags through the corridors of justice, claims that more than a dozen parliamentarians could be be holding dual nationality have raised yet another storm.

In both instances, there are enough views for and against Kenyans with this status, especially those holding state or public office.

There are many reasons advanced why holders of public office should not hold dual nationality but top on the list is patriotism. Those against it argue that a dual national owes allegiance to more than one state and therefore cannot be trusted to have the best interests of Kenya at heart.

From Independence to 2010, the Constitution and citizenship laws did not allow dual nationality. While Kenya could not stop its citizens from acquiring other nationalities, it meant automatic loss of their Kenyan citizenship.

However, there were categories of Kenyans who, by default, held dual nationality even under the repealed Constitution: One was a Kenyan child born to say a Kenyan father and an American mother like Ms Mwinzi.

Such a child remained a dual citizen up to the age of 23, when he or she would choose which nationality to retain. If they chose the other, then they lost the Kenyan one.

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Another group of Kenyans that never lost their citizenship was Kenyan women married in countries where automatically they became citizens of those countries that their spouses came from, such as Switzerland.

What this shows is that even under the old order, it was reasonable to consider special circumstances under which one could be a dual national.

It is the same spirit that Article 78 (3 b) embraces. According to the Article, whereas all state officers must relinquish citizenships of other countries, there are three categories of state officers not required to do so.

These are; judicial officers, Constitutional Commission members and Kenyans that are dual nationals by virtue of those other countries’ laws and without an option to opt out that other citizenship.

It will be good to see how the courts interpret Article 78 as it will mean a lot to many Kenyans who have parents from different countries and thus are automatically citizens by birth in those countries as well.

That said, the Constitution and other relevant laws are clear that state officers should not be dual nationals. Where one acquires nationality of another country by registration or naturalisation, then they are without a shred of a doubt, not eligible to occupy a state office.

However, there is a big debate among Kenyans in the diaspora as to why that should be the case, bearing in mind that most of them work hard and send money back home to build the Kenyan economy – as per remittance statistics that have been confirmed by the Central Bank of Kenya.

The question then that those holding dual citizenship want answered is why the double standards? How is it that they are considered patriotic when sharing their resources or when they are leading their private lives yet, their loyalty is questioned when it comes to them holding public office.

Globally, the dual nationality debate is big with some countries, like Somalia where their president is believed to also be a US Citizen, seemingly not bothered by it while others frown upon it.

On one side, the proponents of multiple nationality believe that the world is global village where boundaries are falling and true global citizens emerging.

Such global citizens can reside and invest anywhere and therefore holding dual nationality is crucial for them.

On the other hand, those opposed to dual citizenship argue that people holding multiple nationalities cannot be trusted and are not patriotic enough and would easily change allegiance at their convenience. While they could remotely entertain the idea of allowing dual nationality, for them it is unfathomable that dual citizens can hold public or state positions.

It was the Kenyan diaspora that pushed the clamour for dual citizenship to be included in the 2010 Constitution. It was purely in their interest, and now the issue is increasingly looking like it was not well thought through. Thus the current situation.

It is envisaged for example that the Kenyan diaspora will ultimately be represented in the National Assembly and the big question is how that will happen and who will be eligible?

If this person is to be a true representative of their constituency then they should be one of them - a diaspora Kenyan who probably is a dual national.

Otherwise why would those in the diaspora vote for someone not one of their own? It is a complex issue that should be discussed even as we seek to amend the Constitution.

George Mucee is the practice leader of Fragomen Kenya, an immigration consultancy firm in Nairobi.

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