In the last few days, Kenyans have been treated to a lot of discourse around the loss of Kenya citizenship by birth. Without delving into a lot of legal jargon around this, I wish to demystify the process of regaining ‘lost ‘Kenyan citizenship. But before then, allow me to say this…when all is said and done, it boils down to this: The architecture of the Constitution of Kenya 2010 is such that it DOES NOT envisage a situation where a Kenyan by birth can be denied of their birth right when they are willing to have it. However, one can not be forced to retain or reclaim it… it is all up to such would be Kenyan to apply to regain as per article 14(5) of the constitution, Section 10 of the Kenya Citizenship and Immigration Act 2011 and Section 5 of the Kenya Citizenship and Immigration regulations of 2012.
How then is the process?
- Confirm that at the time of your birth, one of your parent was Kenyan( either by birth, registration or naturalization)
- Confirm that if you acquired citizenship of another country it was before August 27th 2010 and that by then you were above 21 years.
- If 1 & 2 above is tick, then ensure that you have the following documents: Evidence of your Kenyanness by birth e.g.: National ID or passport previously held, evidence that one of your parent was Kenyan at the point of Birth if you never had Kenyan documents.
- Ensure you get certified copy of the following: Citizenship certificate and copy of passport of your acquired citizenship.
- Log into Kenya foreign nationals management portal (https://fns.immigration.go.ke) and create an account.
- Then go to the dash board and under citizenship you will see regaining citizenship. Please proceed and make the application by providing relevant information as per the guidelines provided thereof.
- Once done, you will save the application, print it, sign and ensure it is submitted to Nyayo House ground floor alongside the relevant documents as per the check list provided. Please note you do not need to do this in person, you can send it to someone to submit on your behalf. I think you can submit through various Kenyan Embassies/consulates near you and this will be relayed to Nairobi for processing.
- Once that is done, you then await communication from the Citizenship section through your email or notifications on the eFNS portal. Please note this may take a while so keep following up and be patient.
- Once this is processed, you will receive a notification in your email or eFNS portal. Log into your account and make payment of government fees of Kshs. 5,000, print the receipt alongside the invoice and submit to Immigration and await processing and issuance of your regaining certificate.
- As you collect your regaining certificate you will be required to declare dual Nationality ( Will write about this at a later date)
- Your are now back to your default Kenyan citizen by birth and can proceed to apply for your ID as well as a Kenyan passport….Karibu nyumbani.
NB: Failure to declare dual nationality is an offense punishable by a fine not exceeding Kshs. 5 Million, 3 years in prison or both! This declaration has to be done within 3 months of becoming dual National.
An immigration consultant/lawyer can also take up such applications on your behalf at a fee as per your agreement.
At no other time in our country has the question of citizenship by birth been this emotive. While I do not seek to give a legal opinion, I thought it worthwhile to apply my mind to this.
The big question today is whether Kenyan citizenship by birth can be lost or not. I think the answer is yes and no. Yes under the constitution of Kenya 2010 a foundling below 8 years that was found in Kenya and thus acquired citizenship by birth under article 14(4). This citizenship can be lost under article 17(2). On the other hand, It is my view that under the current constitution, a Kenyan by birth ( Except foundlings under article 14(4)) CANNOT lose their citizenship.
However, it is important to state that under the repealed constitution section 97, a Kenyan citizen by birth lost such citizenship automatically upon acquisition of another country’s citizenship. Therefore any Kenyan that held citizenship of another country prior to the promulgation of the 2010 constitution ‘was not a Kenyan’. It is this misnomer that the Kenyan Constitution of 2010 cured vide article 14(5) by allowing all those that had ‘lost their citizenship’ to regain.
So what is this regaining and what does it entail?
Article 14(5) says that any Kenyan citizen by birth is entitled upon application to regain citizenship by birth. The Kenya Citizenship and Immigration Act 2011 section 10 and the regulations of 2012 sections 5-8 prescribes the manner in which such an application shall be made. The key word here is entitled. This therefore means that the Cabinet Secretary has no option but to grant the request and issue a regaining certificate to such an applicant.
That being the case, should one assume that after COK 2010 they automatically regained their citizenship without even applying in the prescribed manner? The answer to this was given by Lenaola J ( As he then was) in the case of Bashir Mohamed Jama Abdi vs the minister for Immigration and Registration of Persons and others ( Petition no.586 of 2012).
Lenaola J in paragraph 42 says “…It is obvious to me that whereas Abdi is entitled to apply to regain his citizenship, this Court cannot be the organ to grant it to him because it is not a matter of right. He should make the necessary application and if it is formally denied, then he can have recourse to the Court after that fact…”
In Paragraph 47 Lenaola J Says, “…there is no obligation on the part of the Kenyan Government “to accept” an application to regain citizenship because one must meet the lawful conditions set for so doing…”
It therefore my humble view that while those that had lost their citizenship under the repealed constitution section 97 are now entitled to regain the same under COK 2010, they are obligated to apply for the same in the prescribed manner. The government is duty bound to facilitate this process without unnecessary delays or bureaucracies.
Additionally, such a person must also declare their dual nationality within 3 months of regaining.
Applicable laws in this issue are:
The constitution of Kenya 2010 article 14(5),
The Kenya Citizenship and Immigration Act 2012 section 10
The Kenya Citizenship and Immigration Regulations of 2012 sections 5-8
The ruling by Lenaola J in petition number 586 of 2012.
The most recent amendments to the Kenya Immigration laws were contained in the Statute Law( Miscellaneous amendments) no 11 of 2017 contained in the Kenya Gazette Supplement no 54 (acts no. 11 of 2017)
The amendments focused on the areas below:
- Spouses of Kenyans applying for citizenship will need to have acquired a residence status in Kenya in addition to being married for 7 years before applying for citizenship. ( Section 11 was amended by insertion of the words…and has acquired residence status. Residence status refers to either a work permit or Dependent Pass.
- Migrants and stateless persons were added two more years to allow them to apply for citizenship under section 15 and 16 of the Kenya Citizenship and Immigration Act 2011. This therefore means from 2011 to 2018. This period may be extended by the Cabinet Secretary for another 3 years thus making a total of 10 years.
- Application for Kenyan passport/travel documents: The amendment allows the Director of Immigration services or his assignees to request for any other documentations or information he may require to ascertain citizenship before issuing a passport or a travel document.
- Renunciation of citizenship: Previously, the law only allowed Kenyan citizens by birth to renounce their citizenship but the amended law now allows citizens by registration to renounce as well upon application in the prescribed manner.
- Qualification for Permanent Residence (PR): Previously, section 37 of the Act, only allowed the applicant and their children to qualify for PR subject to meeting the requirements. An amendment to section 37 now allows dependents of PR holders to also apply. Important to note is that one has to provide evidence that indeed those persons are the bonafide dependents.
- Children of registered citizens who are born before their parents acquire citizenship now qualify to apply for Permanent residence. ( This is in my view a bit ambiguous because it does not give at what time in the process of acquiring citizenship should such a child be born to qualify.
- Widows and Widowers of Kenyan citizens now qualify for PR. Previously the law only spoke about spouses of Kenyans. The amendments do not say how wrong should they have been married before the Kenyan spouse passed on for them qualify.
- Appeals: Previously, anyone not satisfied with the decision of the Director of Immigration was required to appeal to the High Court for review. The amendments provides for one to appeal to the Cabinet Secretary for a review of such decisions and thereafter to the High Court if not satisfied with the decision of the CS. What this amendment has done is bring back an administrative process that was in the repealed Immigration Act.
My Appearance on KTN News on 29th November 2017 alongside Ken Ruoth of HRW and Yvonne Ndege of UNHCR Kenya discussing the enslavement of African migrants in Libya.
On Tuesday the 28th November 2017, President Uhuru Kenyatta was sworn in for his second and final term after a prolonged high octane election period. He gave a lengthy colorful speech full of hope and aspirations for the future. Two items caught my attention as an Immigration consultant because they are core to something I believe in.
Firstly the president directed that in the spirit of pan Africanism, ALL Africans should be given visas on arrival or the so called category 2 (a) in the Kenya Immigration Visa policy. He added that this will not be based on reciprocity as is the practice in Immigration practice. Important to note is that will benefit only a few countries: Somalia and Eritrea because the rest of the African countries are already getting their visas online or on arrival but still this is laudable.
Secondly and most fundamentally, the president directed that East African Citizens be treated as Kenyans in as far as Immigration processes are concerned. What does this mean? Ordinarily, for citizens of east Africa to travel to Kenya, they need a passport, temporary passport or National ID for Uganda, Rwanda and Kenya. They then must be cleared at the port of entry where they are given the duration they need to stay in country. If they need to work or do business in Kenya, such persons require an Entry Permit subject to meeting the set requirements. What the President’s directive means is that these people will only need to show their IDs at the point of entry and they are in to do business, get employed or get married without any additional process…just like citizens.
So then, is this a good or a bad thing for Kenya?
Well, from the face of, it looks well intended and in line with the aspirations of both the African Union and East African Community of a borderless Continent. I am sure this will be very good news to those that will benefit but not sure that Kenyans will feel the same. This morning as I was having my shoes polished, I overheard a discussion by ordinary Kenyans concerned about that move by the president on two things: one is security concern and two is influx of foreigners that will take over Kenyan jobs. I share similar sentiments in addition to the fact that all this puts no obligation on other countries whose citizens will benefit to accord similar courtesies to Kenyans because the president made it clear that this is NOT on reciprocity basis.
It is therefore my considered view that, once this is discussed by concerned agencies like Immigration Department, National Intelligence Services ( NIS), Foreign Affairs Ministry among others, there could be moderated implementation of the presidential directive. It is not lost on Kenyans that just a few weeks ago Kenyan herders had their cattle seized and auctioned in the neighboring Tanzania. Chicks from Kenya were burned alive at the Namanga border.
If the Kenyan public is not involved in the implementation of this directive either directly or through their elected representatives in Parliament, the well-intended gesture could see acrimony between Kenyans and the foreigners akin to xenophobia as we see in South Africa. I hope those that advise the president should get it right if this has to be well taken by ordinary Kenyans raising concerns.