Kenya's dual citizenship law remains a trap for the unwary

How does the law and its application regarding citizenship, especially dual citizenship protect Kenyans who acquired other citizenship before 2010? Based on the constitution standard, should we assume that dual citizens automatically regain citizenship? There are two schools of thought. One based on Article 16 of the Constitution that simply states that a citizen by birth does not lose citizenship by acquiring the citizenship of another country.

The second opinion is based on Article 14 of the Constitution, which appears more relevant on the issue of regaining citizenship for those who were foreign citizens before the 2010 Constitution. As confirmed by the ruling by Justice Isaac Lenaola in Chandra case in 2014. Lenaola agreed with the State that under provisions of Section 97 of the former Constitution, the applicant needed to have first renounced their British citizenship in order to regain the Kenya citizenship.

The citizenship issue cannot be confused by that of nationality. Not all nationals are citizens and neither are all citizens nationals. Argument on whether Miguna Miguna is a Kenyan is wrapped around him coming from an identifiable village, all his family members are in Kenya and not just his origin but birth and sense of belonging are Kenyan.

However, citizenship is not a sense of belonging but an operation of law, unlike nationality, which is not operation of law. Moreover Kenyan laws do not guarantee right to nationality but citizenship, whether by birth, ancestry or registration. Unlike a child born in Kenya who acquires citizenship automatically by operation of law, or without having to take any concrete steps, that is not the case for those born in Kenya who acquired other citizenship before the 2010 Constitution.

Renunciation

In the matter of Miguna, like most Kenyans, he acquired his initial Kenya citizenship by birth. But when did he lose his citizenship? The crucial matter is whether renunciation of Kenya citizenship was necessary. I do not think Miguna needed to renounce his Kenyan citizenship before becoming a Canadian because Canada has a law for dual citizenship. However, from Kenyan laws the pertinent question is whether Miguna automatically lost his Kenyan citizenship by voluntarily applying and becoming a Canadian citizen.

The question is whether Miguna reversed the loss of Kenyan citizenship by the operation of the constitution allowing dual citizenship and saving Kenyans by birth who had lost their citizenship. The Constitution 2010 guarantees one regaining their citizenship upon application. Fortunately, this application is not time bound and even if one does not want to regain their citizenship immediately, they can, whenever they comply with the process.

It is important to note that Miguna’s issue of citizenship only surfaced when he started to criticise the Government, which raises the issue of immigration enforcement for political purposes. According to the Constitution, deportation is an administrative process. However, due to its implication to Miguna’s rights and interests, all administrative process are subject to the standards of Fair Administrative Act.

The push

There is very little international law on citizenship, even though there is mounting pressure for countries to deal with the issue of statelessness. Therefore, each state has set out laws of citizenship and they vary. The Universal Declaration on Human Rights set up guidelines and recognize right to Nationality.

Article 15 of UDHR states that everyone has the right to nationality and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. At some point in 1955, the International Court of Justice had ruled in the Nottebohm case that dominant citizenship can even supersede a case where one revoked their German citizenship and acquired Lichtenstein citizenship.

This discussion does not purport that Miguna’s deportation makes sense or, as discussed below, can pass the requirement of fair administrative act. Neither is the article discussing any infringement of rights or the practicality of Judge Kimaru’s judgement on cancellation of deportation of Miguna which raises the question of whether according to Judge the right of habeas corpus extend to a defendant out of Kenya jurisdiction.

However, the article finds that Miguna lost his citizenship and was not necessarily revoked by the State since regaining citizenship by birth is accessible through this Act to persons born in Kenya who had lost their citizenship. Citizenship is a crucial step towards protection of human rights, including diplomatic protection. The reason for dual citizenship was an acknowledgement of the social and economic reality of most Kenyans who are working out of Kenya but have continued to support the economy.

Dr. Ojwang is Dean Africa Nazarene University