DUAL NATIONALITY IN KENYA: WHO QUALIFIES?

The storm over Mwende Mwinzi’s appointment as a Kenyan envoy to south Korea is till simmering. The Kenya’s National Assembly is of the view that she must renounce her American citizenship if she has to assume that role. Reason? Well, they cite the Constitution as well as  Leadership and integrity Act of Kenya. There are tons of arguments for as well as against a dual national holding such a position but my concern today is this concept of dual nationality in Kenya: who is eligible?

It is important for me to clarify that Citizenship and Immigration laws are exclusively left to individual states to determine how to deal with. There are no international laws or conventions on this. So Citizenship and Immigration are not within the realm of Public International Law. Secondly, the terms citizenship and nationality are used interchangeable by many writers…is there really a difference? Well, in principle they mean the same but citizenship is used more within the national borders while nationality is used in international law issues.

The Kenyan situation

Pre 2010

Prior to the 2010 constitution, Kenya did not allow dual nationality. Thus all persons holding dual nationality were required to take a choice once they reached the age of majority (23 years then). Failure to renounce the other citizenship led to one losing their Kenyan citizenship automatically. Similarly, any foreign national that sought to acquire Kenyan citizenship by registration or naturalization was required to renounce their citizenship within a specified time after acquiring Kenyan citizenship. Failing to provide the Minister in charge of Immigration with the certificate of renunciation led to the loss of Kenyan citizenship. This is the situation that faced many Kenyans in the diaspora where many of them acquired other nationalities but never renounced their Kenyan citizenship explicitly. The Issue of dual nationality was a key issue during the clamor for new constitution.

Post 2010:

The Constitution of Kenya 2010 (COK 2010), the Kenya Citizenship and Immigration Act 2011 and the Kenya Citizenship and Immigration regulations of 2012 provides for dual Nationality. Article 16 of COK 2010 provides that a citizen by birth does not lose citizenship by acquiring citizenship of another. My understanding of this article is that it is meant to protect Kenyans by birth from losing their right to Kenyan citizenship under any circumstance.

Some lawyers have interpreted this to mean that only Kenyans by birth can be dual national… in my view that is erroneous. Why? If you look at the Kenya Citizenship and Immigration act 2011 Part 3 (sections 6 to 22) the various categories of acquiring Kenyan citizenship are enumerated. Curiously, at no point is a foreign National applying to be Kenyan citizen required to renounce their other nationality. They are only required in section 8(3) to disclose their dual nationality. What this therefore means is that any person holding citizenship of another country that applies and is granted Kenyan citizenship is effectively a dual national in similar manner as a Kenyan acquiring citizenship of another country…what is required is that they both must declare their dual nationality.

In fact renunciation in the Kenya Immigration Act sections 19 & 20 is voluntary. Even where a foreign national applying for Kenyan citizenship voluntarily offers to renounce their other nationality (section 20 (1,2 &3) and fails to do so within 90 days after being granted the Kenyan citizenship, they do not lose their Kenyan citizenship…instead section 20(3) deems them as dual national and therefore liable to declaring dual nationality under section 8(3).

I have read all the relevant laws of Kenya on citizenship and at no point did I see a mandatory renunciation of either Kenyan or foreign citizenship… It is thus my considered view that any Kenyan can today be a dual national regardless of how they became Kenyan in the first instance. In fact application for renunciation of Kenyan citizenship can be denied by the Cabinet Secretary in charge of Immigration in the case of a Kenyan by birth if he/she is convinced it is not in Kenya’s interest to grant such renunciation (section 19(4) of Kenya Immigration Act. Under section 20(4) the cabinet Secretary may decline to accept renunciation by a foreign national if Kenya is at war with the other country that he seeks to renounce its nationality or if such renunciation is contrary to public policy.

Conclusion:

Based on the foregoing, it is clear that any Kenyan can be a dual national regardless of how they acquired Kenyan citizenship. Secondly, there is no requirement in Kenyan law of a person applying for Kenyan citizenship to renounce their other citizenship. Thirdly, renunciation in Kenyan law is voluntary to the person interested in so doing and may be denied by the cabinet secretary in charge of Immigration.

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