Since independence, Kenya has relied on a few sources of income to run the economy. Traditionally these have been agriculture, tourism and most recently we are on the path of becoming an oil producing country. Incomes from whatever resources we have, are not sufficient to sustain our budget and therefore we have borrowed heavily to fill the gaps. Kenyans are highly taxed as the government tries to raise money to run the country. As we speak the proposed VAT on petroleum products will hit every Kenyan in a huge way starting September 1st 2018 if no miracle happens. IMF has already warned Kenya of the ballooning debts that are becoming unsustainable by the day.
I know President Uhuru and CS Rotich are scratching their heads as to where the money to finance the ambitious budget we have for the year 2017/2019 will come from and I would like to give them some 10 cents worth of at least one place they can think of to get some extra cash to help with at least one item in the big 4 Agenda. Yes, this may sound funny but it is actually very easy money if we dare think outside the box. Immigration products! Yes…Immigration. Let us get creative with our Immigration laws and make some good money out of it.
Every time we talk about Immigration, people think of passports and those tired officers in our border control stamping passports…and most recently CS Matiang’I warning that all illegal foreign nationals in Kenya must go so as to protect jobs for Kenyans. Let’s throw that box away for now and let me show you why we are sitting on natural resource bequeathed to us as sovereign state by international law and our constitution.
Many countries in the world today have citizenship and residency by investments where good wealthy people invest money in those countries and in return are given residence or citizenship. Some of the countries with these options include; United Kingdom, Malta, Cyprus, Netherlands, St. Kitts and Nevis and closer home South Africa. The options and costs differ from country to country but the costs range from USD 100,000 to Millions. In the UK for instance one is required to invest at least 2 Million Pounds or about 260 Million equivalent in Kenya Shillings! I am talking of big money for sure.
Currently in Kenya, one can become a citizen by residing here on a lawful residence for 7 years upon payment of Kshs. 200,000. While this is fine, I think if we get creative with the category of residency or citizenship and create one exclusively for the Ultra High Net worth individuals that are keen on having residence in Kenya. I can assure you that in Africa, Kenya is one place many wealthy people would love to reside…either at the beautiful coastal beach fronts, Kenyan high lands or the leafy suburbs of Nairobi or other cities and towns in the country. I have been approached by such individuals keen on exploring Kenyan citizenship or residence by investment but unfortunately our Immigration laws do not have those kind of options. If for example Bill gates or Aliko Dangote wants to have a home and residence in Kenya today, their options would be either class K (ordinary residence) or Class G (investor permit) both of which are limiting and issued only for 2-3 years and renewable every 2-3 years. This is not the case with countries with residence or citizenship by investment. In those countries, once you meet the investment threshold and obviously get cleared on other considerations such as security you are either given permanent residence or citizenship allowing you to enjoy all the benefits attendant to it.
As an Immigration Consultant I believe if we get creative with our Immigration we can raise substantial foreign investment and cash injections into our economy from Ultra High Net Worth individuals of good global standing that are keen having Kenyan residence or citizenship. I am imagining Bill Gates or Aliko Dangote having a Beach front home in Mombasa that they frequent and what that means in terms of jobs created and money spent here. Additionally, the rich people are always scouting for places to invest thus they could be here on holiday and spot an opportunity and decide to inject more investments into the country. In fact the mere fact that such people own homes in a place make prices of properties in such places increase exponentially because it is likely that other wealthy personalities will consider investing there too.
I see Immigration as a natural resource akin to oil, gold or even the airwaves that we sell licenses to the telecoms to raise money…we can tap into this on our own terms and raise cash. We could for instance say if you inject Kshs. 100 Million to 1 Billion into specific sectors of the Kenyan economy as we decide then you get Kenyan Permanent Residence and if you inject more say 10 Billion we give you citizenship if you pass other security and legal requirements.
Unfortunately, this may take awhile or not happen at all because we see immigration role as the one of just policing who is coming to Kenya and what they are coming to do. If I were to have my 5 minutes of fame with H.E The President that is what I would propose to him. We shall not be re-inventing the wheel because there are many countries with this program and there are many wealthy Kenyans that have gotten citizenship in those countries by investing there.
Kenya is a beautiful country with quite a developed infrastructure, educated population, amazing weather, culture, fantastic tourist attraction sites and very centrally located in Africa for ease of travel across the continent and we need to tap into that and get the monies coming in… Yes we can do it.
George M. Mucee ( BA, MA, LLB-Ongoing)
Immigration and Communication Consultant.
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.