Kenya's Dual Citizens Should Not Have to Re-Apply for Their Birthright

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In one breath they are encouraged to continue investing in “their country,” to keep sending the remittances that have become among the top forex earners for Kenya. But in another and not so fresh breath, they are told they are not Kenyan citizens and must reapply for citizenship. This is the unfortunate predicament of those Kenyans in the diaspora who, although having acquired citizenship of other countries, continue to dream of returning to their motherland.

There is a stark contradiction between the Dual Citizenship clause of the new Constitution: “A citizen by birth does not lose citizenship by acquiring the citizenship of another country,” and the reality of the requirement being put to Kenyans in the diaspora, that they must reapply for Kenyan citizenship if they acquired another citizenship prior to August 2010, when the new constitution came into force.

The plain meaning of the words of the Constitution, the Supreme Law of the land, seem unambiguous enough. So why do Kenyan’s in the diaspora remain subject to the old constitution while the rest of the country moves on? Under the old constitution; “A person who, upon the attainment of the age of 21 years, is a citizen of Kenya and also a citizen of some country other than Kenya shall... cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country.”

Arguably, the plain meaning of these words was automatic loss of citizenship for those who acquired other citizenship, and that may well have been if that was the end of the matter.

But it was not.

A Kenyan who acquired other citizenship was required to be proactive in completing the loss of Kenyan citizenship by filling out a declaration of renunciation of Kenyan citizenship (Form L) in duplicate, having it notarised, paying a fee, and surrendering their Kenyan passport. Many dual citizens never filled out this declaration, therefore their loss of citizenship arguably never became effective.

Amazingly, the landmark Kenya High Court ruling of January 22, 2010 by Justice L. Kimaru seems also to have been forgotten. In Sirat v. Abdirahman, Justice Kimaru ruled that under the constitution then in place, dual citizenship was allowed for persons who got their Kenyan citizenship by birth and had not renounced it while acquiring the second citizenship.

Those who did effectively renounce their Kenyan citizenship are on record as having done so. Logically, it is these people that would now have the opportunity to re-apply for Kenyan citizenship under the new Constitution’s provision that, “A person who is a Kenyan citizen by birth and who has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled on application to regain Kenyan citizenship.”

It is a long and winding road, however, from allowing those who did formally renounce their citizenship to apply for reinstatement and declaring that all have lost their citizenship prior to the new Constitution whether they formally renounced it or not; and that in the face of the plain meaning of the current law of the land, “A citizen by birth does not lose citizenship by acquiring the citizenship of another country.”

Kenya’s choice; gain or lose

The sad truth is, there are probably many Kenyans in the diaspora who, never having renounced their Kenyan citizenship, may decline to reapply if required to do so, and choose to continue with their lives as they are. It is foolhardy to ignore the fact that Kenya needs these citizens as much as they need Kenya.

Kenya’s diaspora remittances hit a new high in February 2012 at $103.98 million. In 2011, diaspora remittances were $891 million, an increase of 39 per cent from 2010. As a foreign exchange earner, diaspora remittances are right up there with tea, which brought in $1.27 billion, tourism $1.18 billion, and horticulture $1.10 billion. In 2011, the Central Bank of Kenya revised its investment procedures to allow Kenyans abroad to open accounts for buying Treasury securities. The government’s savings development and infrastructure bonds issues and subsequent awareness campaigns led to increased diaspora interest in investing through these formal channels over this period, according to the CBK. A diaspora-targeted infrastructure bond attracted Ksh13.5 billion ($159.7 million), while a savings bond raised Ksh19.5 billion ($230.8 million).

Official estimates indicate that the Kenya diaspora is about three-million strong. In the United States alone, it is estimated that there are about 500,000 Kenyans, although only some among these have taken US citizenship.

Kenyans in the diaspora include some of our highest achieving athletes, as well as other high achievers in various fields whom others are already happy to call citizens of their own countries. Swimmer Achieng Ajulu-Bushell, a former world No. 1 in the 50m, now competes for Great Britain; long distance runner Lorna Kiplagat, holder of five world records, gained Dutch citizenship in 2003 and competed for the Netherlands thereafter. She and her husband have since founded the High Altitude Training Center in Iten, Kenya, where high profile athletes from all over the world come to train. Kenyan-Danish athlete Wilson Kosgei Kipketer holds the current indoor world records in the 1,000 and 800 metres race. Kipketer’s 800 metres world record stood for almost 13 years until it was broken on August 22, 2010 by Kenya’s David Rudisha. And these are just the tip of the iceberg.

By all indications, Kenya recognises the value of its diaspora, at least on paper. The government has ratified the Amendment to the African Union Constitutive Act Article that lists among the AU’s objectives, to “invite and encourage the full participation of the African diaspora as an important part of our continent in the building of the African Union.”

Kenya’s Foreign Policy document has also incorporated Diaspora Diplomacy as one of the five key pillars of Kenya’s foreign policy along with Economic Diplomacy, Peace Diplomacy, Environmental Diplomacy and Cultural Diplomacy, with Diaspora Diplomacy slated as one of the paramount strategic objectives to be achieved. Kenya’s Vision 2030 has highlighted the diaspora as one of the flagship projects under the financial sector.

Perhaps the time has come to recognise their value in practice as well. Permitting dual citizenship under the new constitution has been an excellent first step. But this clause, like all others in the new constitution, must be correctly interpreted and implemented quickly. There are Kenyans in the diaspora who, identifying more with their roots in Kenya than any other place on earth, might play along and apply to regain their “lost” citizenship, and indeed have it “restored.” But the matter is more complex than that, and the repercussions more dire.

Children

Kenyan citizenship is acquired by jus sanguinis (Latin for “right of blood”), a legal principle by which citizenship is not determined by place of birth but by having one or both parent who are citizens of the nation. It contrasts with jus soli (Latin for “right of soil”), which confers citizenship by place of birth. Kenyan citizenship “by birth,” along with the privileges of running for election or appointment to state office and the right to run for election as president or deputy president, is the entitlement of those who are born to a Kenyan citizen parent anywhere in the world and are therefore “citizens by birth.” If Kenyans in the diaspora accept that they are deemed to have automatically renounced their Kenyan citizenship the moment they acquired other citizenship prior to the promulgation of the new constitution, they are accepting that they were not and are not now Kenyan citizens prior to reapplication; nor are any children born to them at that time Kenyan citizens. How will these children regain their “citizenship by birth” status, not having been born to Kenyan citizens?

The new constitution sheds little light on the predicament of these children, stating only that, “A person born outside Kenya shall be a citizen by birth if on the date of birth that person’s mother or father was or is a citizen by birth.” The “was or is” of this clause is among the areas that the diaspora may want to seek urgent clarification on to safeguard their children’s citizenship status if they themselves are indeed required to reapply for citizenship. Will their children subsequently have to be registered as citizens? As “registered citizens” rather than “citizens by birth” they can never be appointed to state office or run for president or vice-president.

Land

Calls have continued to be made to Kenyans in the diaspora from as high up as the head of state to continue investing in Kenya and building their country. Many would-be dual citizens have invested in land in Kenya. Under the current constitution, “A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.” Now it appears that for some, their citizenship status may be in question, and along with it the status of their land. Besides, those who acquired freehold land prior to the time they “lost” their citizenship may find themselves victim to the clause that reserves freehold land ownership for citizens.

Voting

For the first time in history, Kenyans in the diaspora have the constitutional right to register and vote in a national election remotely from wherever they reside — but only if they are citizens of Kenya. The constitution requires parliament to enact legislation to provide for “the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.” The issues raised by the qualification of this right with the word “progressive” are an important issue for another day.

More pertinent here is the issue of whether dual citizens who acquired their citizenship in another country prior to the 2010 Constitution will be able to vote. If they must re-apply for citizenship, how long from the date of their application to approval and their eligibility to register as voters or run for election to public office if they choose to do so? As the constitution does not allow a dual citizen to hold state office, one who “lost” Kenyan citizenship under the old constitution would need ample time to have it reinstated and to renounce the other citizenship before vying for state office.

Criminalisation

As far as dual citizenship goes, is our citizenship law one that gives with one stroke of the pen and seeks to take away with another by criminalising the very people meant to benefit from the new law? Indisputably, the government has a legitimate interest in collecting data on how many Kenyans acquired other citizenship and where. But the proclamation of the Citizenship and Immigration Act, that, “Every dual citizen shall disclose his or her other citizenship...within three months of becoming a dual citizen,” and its prescription of a “fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both,” perhaps goes more than a little too far. Crimes that attract similar jail terms under Kenyan law include “intimidation and molestation,” “supply of harmful substances to children” and common theft. Some might say it appears more than a little odd to criminalise citizens and impose such harsh penalties simply for failing to report that they have done what the law allows them to do — become dual citizens.

Most urgently, clarification for those Kenyans in the diaspora who acquired other citizenship prior to the new constitution is needed. Are they or are they not Kenyan citizens? Need they reapply for what for all intents and purposes appears to be their constitutional right? Can their children some day run for top office? What is the status of their landholding in Kenya? Will they be voting in the coming election? The letter of our constitution, the current law of the land, appears well in their favour: “A citizen by birth does not lose citizenship by acquiring the citizenship of another country.” There is no qualification to this statement — no “forthwith” or “henceforth” about it. Hopefully this is the interpretation and implementation that will be given to this clause.

By Carol Gachiengo
Source: The East African

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Carol Gachiengo
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