BY ANTONY KARANJA in Dallas, Texas USA
As Kenyans overwhelmingly voted for a new constitution, two key items were under focus by Kenyans across the Diaspora namely dual citizenship and voting rights for those residing abroad. But for Kenyans in the US, a debate is raging as to whether holding US citizenship as well as Kenyan citizenship would violate US law.
A Kenyan citizen can apply to be a US citizen if he or she has been a permanent resident for five years or if a Kenyan citizen has been a permanent resident for three years, having been married to and living with the same US citizen for at least three years and the spouse has been a US citizen for the last three years.
Under current US laws, when taking up US citizenship, one is required to state under oath that they have renounced their old citizenship and any activities or conduct that contradicts this pledge could lead one to lose their newly acquired US citizenship. On the application form for US citizenship through naturalisation, a statement under the “oath of allegiance” section required to be signed by all applicants reads “…I hereby declare on oath that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.”
The Department of Homeland Security does not take your Kenyan passport after the oath-taking ceremony. The permanent resident card “Green Card” is however surrendered. The US State Department is being faced with situations where the new American’s old country refuses to acknowledge the “renunciatory clause” in the US naturalisation oath as having any effect on its citizenship laws which effectively means that the new American citizen continues to hold his or her former citizenship. However, holding dual-citizenship does not violate US law as many Kenyans have been led to believe. According to the US State Department website, the US Government recognises that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause.
According to the website, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. For those who intend to hold US/Kenyan citizenship while residing in the US, any attempt by the Kenyan Embassy to intervene on their behalf in case of a legal tussle will not be acknowledged by the US Government. Kenyans holding dual citizenship can continue to use their Kenyan passports outside the US, but must use their US passports while exiting and re-entering the US.
In January 2010, Kenya High Court Judge Luka Kimaru while presiding over the matter of Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 others , effectively ruled that one does not lose Kenyan citizenship just by merely acquiring another country’s citizenship. The High Court ruled that there was nothing in the Constitution that specifically prohibited him from acquiring Australian citizenship while at the same time retaining his Kenyan citizenship provided that the country’s law allowed for its citizens to acquire dual nationality.
Judge Kimaru however noted one exception in his ruling; where the petitioner had specifically renounced his Kenyan citizenship and acquired citizenship of another country that did not allow dual citizenship. Under the old constitution which had no provision for dual citizenship, this effectively meant that those Kenyans who had taken up US citizenship via naturalisation had effectively renounced their Kenyan citizenship as required by the US citizenship law. Under the new Kenyan constitution, a naturalised US citizen who is a Kenyan citizen by birth is entitled to regain Kenyan citizenship upon application if one lost Kenyan citizenship as a result of acquiring US citizenship.
However, this may not be straight forward. A paragraph on the State Department website reads “…..However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship….”
When a US citizen applies for a foreign country’s passport, a US consular official, may be notified of such actions. The consular officer will simply ask the applicant if there was intent to relinquish US citizenship when performing the act. If the answer is no, the consular officer will certify that it was not the person\’s intent to relinquish US citizenship and, consequently, find that the person has retained US citizenship. In a situation where one is required to apply to regain Kenyan citizenship while holding US citizenship, it is of paramount importance to specify that you do not intend to give up US citizenship under any circumstances.
Although a declaration to a US consulate officer that you do not intend to relinquish US citizenship is sufficient, it is recommended that a notarized affidavit be prepared by the applicant infront of three witnesses or more indicating the intention to retain US citizenship while obtaining Kenyan citizenship. The affidavit should be stored safely incase of any misunderstanding in future with the US State Department. Urgent consultation with qualified immigration lawyers is recommended in such situations as any mistake could cost your US citizenship.