Third Eye

Which way for Kenya in dual citizenship debate?

Sunday, October 20th, 2019 09:58 |
Activist Okiya Omtatah moved to court yesterday seeking to stop the President from extending the BBI team’s mandate. Photo/PD/FILE

George Mucee       

As the debate about Mwende Mwinzi’s dual nationality and her appointment as the Kenyan envoy to South Korea rages on and drags in court, activist Okiya Omtatah has caused a storm by claiming that more than a dozen parliamentarians could be dual citizen. 

Opinion is divided on whether the country should allow dual citizenship, especially among persons holding public office.  Both the proponents and opponents have their reasons, with patriotism topping the list. Those against it argue that a dual citizen owes allegiance to more than one state and, therefore, cannot be trusted to have the best interests of Kenya at heart.

Before the promulgation of the 2010  Constitution, our laws did not allow dual nationality. While Kenya could not stop its citizens living abroad from acquiring other nationalities, it maintained the position that whoever did so they automatically lost the Kenyan citizenship. 

However, there were categories of Kenyans that by default held dual nationality even under the repealed Constitution. Such include a child born to, for instance, a Kenyan father and an American mother like Mwende 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 to be American, then they lost the Kenyan citizenship. 

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. A good example was Switzerland. 

What this shows is that even under the old dispensation, it was reasonable to consider special circumstances and it is the same spirit that Article 78 (3b) of the Constitution embraces. According to the Article, whereas all State officers must relinquish citizenships of other countries, there are three categories not required to do so. They are judicial officers, constitutional commission members and Kenyans that are dual nationals by virtue of the other countries laws, and without an option to opt out.

It will be good to see how courts interpret Article 78 as it will mean a lot to many Kenyans that 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 citizens. 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. 

The issue has sparked a debate among Kenyans in 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. They are questioning what they term double standards: how is it that they are considered patriotic when sharing their resources but their loyalty is questioned when they want to occupy public office? 

Globally, the dual citizenship debate is massive. Proponents believe the world is a global village, where boundaries are becoming blurry and global citizens emerging.  On the other hand, opponents argue that people holding multiple nationalities cannot be trusted and are not patriotic enough and would easily change allegiance at their convenience.

In Kenya, the clamour for the 2010 Constitution saw the Kenyan diaspora push for the provisions on dual nationality. At that time, everyone was trying to have their interests preserved in the constitution hence the bulky document we have as our Constitution. It is increasingly looking like the issue of dual nationality was not well thought through. 

It is envisaged for example that the Kenyan diaspora will ultimately be represented in the National Assembly and the big question is who will be eligible? This is indeed a difficult and complex issue that as a country, we should have a discussion around in the wake of referendum debate.

—The writer is the practice leader, Fragomen Kenya

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