Citizenship by birth is irrevocable, court rules in Mwinzi case

Friday, November 15th, 2019 05:17 |
Mwende Mwinzi,
Mwende Mwinzi
Mwende Mwinzi,

The High Court yesterday ruled that President Uhuru Kenyatta’s nominee for South Korean ambassador, Mwende Mwinzi, cannot be forced to renounce her US citizenship because it was acquired by birth.

Justice James Makau said Mwinzi whose mother is a US citizen, could not opt out of her citizenship.

“I have no hesitation to agree citizenship by birth cannot be taken away by anyone. No one chooses his or her place of birth or parents,” ruled the judge.

State officer

“Article 78(3)b of the Constitution protects her. Citizenship by birth is an inalienable right which cannot be taken away,” he added.

The judge, however, said an ambassador is not a State officer, but a public officer and is not required by law to renounce his or her citizenship.

“There is no legislation establishing the office of ambassador as a State office but Parliament has powers to enact legislation to that effect. It’s clear that a State officer who acquires dual citizenship shall lose his position,” ruled the judge.  

He, however, dismissed an application by Mwinzi challenging the conditional approval of her nomination by Parliament because of her US citizenship, terming it premature.

In his ruling yesterday, Justice Makau said  the appointment process is not complete and that Mwinzi should wait for the decision of the President on whether she will be appointed or not before filing the petition.  

“The president is waiting approval of Parliament. The petitioner didn’t not allow the President to make his decision. The petition is premature,” noted the judge. 

Dual citizenship

Mwinzi, a dual citizenship holder, through lawyer Tom Ojienda moved to court after the National Assembly approved her nomination as Kenya’s ambassador to South Korea on condition that she renounces her American citizenship.

In her petition she argued that her American citizenship is by birth, therefore could not be renounced since it is out of her control.

Mwinzi wanted the court to determine if the National Assembly could grant conditional approval of a nominee and also whether the petitioner had any proprietary right to the office of ambassador. 

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