Citizenship rights are sacred and beyond political contestation

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As a political opponent Kenyan-Canadian lawyer Miguna Miguna is a massive package for his bravado, abrasive eloquence, anarchical bent and sheer guts. Therefore as the self-declared general of the recently proscribed National Resistance Movement in Miguna Miguna the Jubilee government was in for a rough time in its second term in power. As evidence, Miguna’s final speech when he dared Internal Security CS Fred Matiangi to arrest and charge him for administering the now famous oath to Mr. Raila Odinga left no illusion about the challenge he poses to the peace and quiet of those in power.

Viewed this way, the deportation of Miguna was a rare master stroke by the government. On deeper reflection, Miguna’s deportation is an act of genius as a political tactic because it might help to water-down extremist strategies by Nasa in the short run. However, in the long run the deportation of Miguna – a native citizen born in Kisumu County – does not augur well for Kenya and so I was both shocked and embarrassed when I first heard about it. In my considered view there are five reasons why Miguna’s deportation is self-defeating, ahistorical and less smart than it seems in the heat of the moment.

First, the preamble to our Constitution and the famous Article 1 on sovereignty of the people embody the political theory that there were people in the African territory known as Kenya upon which the British foisted a government and after independence the people have willingly established as lawful authority upon themselves. On this interpretation, anyone born in Kenya and whose parents belong to any of the 42 indigenous communities of Kenya is a Kenyan by a primordial and pre-constitutional right and cannot cease to be so by an act of the state or operation of any law of a foreign country. In short, so long as Miguna is a lawyer and the Luo remains one of Kenya’s influential and better known communities, Miguna could not lawfully renounce his Kenyan citizenship and any such renouncement was and remains void, if it ever occurred.

Secondly, during the constitution-making process, the rationale of allowing dual citizenship for Kenyan citizens was twofold. First, to spare Kenyan citizens the dilemma or anguish of having to renounce their citizenship in order to secure citizenship of another county. Secondly, it was to facilitate the Kenyan Diaspora – whose remittances is the highest foreign exchange earner for Kenya – to secure socio-economic advantages that acquisition of citizenship of the country they reside in might offer. In other words, the option of dual citizenship is neither a trade off nor a negation of a native Kenyan’s inalienable right to non-extinguishable citizenship of his ancestral land.

Thirdly, citizenship denotes more than a legal status which is only recognised – not conferred – by government in a given territory. Thus a government issues an ID Card or passport to acknowledge rather than confer citizenship upon the recognised inhabitants of its jurisdiction and owners of the territory. In other words a passport is a right of every citizen and not a privilege conferred by government during good behaviour of a citizen. The Bill of Rights is categorical that the political rights enshrined in Article 38 are exclusive rights of citizens and by dint of Article 39(3) of the Constitution every citizen has the right to enter, remain in and reside anywhere in Kenya. These citizenship rights are secured for the simple reason that they are law-creating legal facts and the basis of legitimate government. And because they are sacred, they are and must remain beyond the reach of the State, political contestation and cannot be lawfully derogated. In my view, government can only regulate rather than create and extinguish these exclusive citizens’ rights.

The fourth reason is historical and it is why I was embarrassed by Miguna’s deportation. According to historians Tabitha Kanogo and Frank Furedi, the deportation of thousands of Kikuyu families from Olenguruone in 1946 was one of the major causes of the Mau Mau revolt in the 1950s. When the rebellion broke-out in 1952 my late father – as a 16 years’ teenager – was one of the members of the Kikuyu, Embu and Meru Communities, who were “deported” from Nakuru district to the respective native reserves. I am eternally proud and grateful that my hero Dedan Kimathi established the Kenya Land and Freedom Army to fight colonial rule and not a Kikuyu liberation movement. After independence my father returned to Nakuru district where I was born. During the agitation for multi-party democracy I was profoundly embarrassed to hear Kanu politicians from as far away as Nandi District issue threats to “deport” foreigners (meaning Kikuyus, Luhyas and Luos) from the Rift Valley Province if they continued to support multiparty democracy. In short deportation is a dirty word to me and is not a fate I can even wish upon any Kenyan citizenship, however revolting their brand of politics.

The fifth reason is why Miguna’s deportation horrified me. President Uhuru Kenyatta is a Kikuyu, which happens to be the community whose citizenship rights have most often been questioned by evil political forces. For the first time in Kenya’s history the 2010 Constitution protects citizenship rights in such an absolute manner that I imagine the Kikuyus will never have to worry again about their citizenship rights wherever they might choose to reside in Kenya. In my view, it is both ironical and unwise for a government with a Kikuyu at its head to undermine the citizenship rights of any Kenyan. Governmental power is transient in nature. What happens tomorrow when a non-Kikuyu takes over and begins to question the citizenship rights of Kikuyus for political expediency? Therefore as attractive as Miguna’s deportation might be I cannot endorse it without feeling that I am betraying my hero Dedan Kimathi and my late father. Period!

*The writer is a constitutional lawyer (kibemungai@yahoo.com).

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