Constitutional provisions on citizenship during transitions pose challenges

The Miguna Miguna deportation incident has undoubtedly brought to the fore the need to reflect on the citizenship regime introduced by the 2010 constitution and the enabling regulatory framework embodied in the Kenya Citizenship and Immigration Act (2011).

Without transgressing into the contested questions before the courts, this article sheds light on the broader theoretical questions on citizenship and nationality in Kenya.

Citizenship is the legal bond, the existence of which links an individual to her State. Legal citizenship grants status to the bearer, including right of re-entry, and is often a prized possession as signified by the quest by immigrants from Africa and other less developed contexts for America’s diversity visa, the gateway to American citizenship, and presumably the American dream.  So central is the right to citizenship that the US Supreme Court in Luria v U.S. (1913) defined citizenship as the “right to have rights”

Two broad principles underpin citizenship regulations across different jurisdictions: birth and ancestry. Some States such as the United States have adopted the role of place of birth (jus soli) as the basis for conferring citizenship. This rule recognizes the immateriality of a parent’s citizenship for purposes of determining that of a child.

It proceeds to grant to the child automatic citizenship based on where such child is born. No wonder, President Obama’s place of birth, Hawaii, which only became the 50th state of the Union in 1959, a few years before Obama’s birth, became controversial when some conservative politicians questioned Obama’s eligibility for US presidency (which recognizes natural born citizens only as eligible to contest the presidency).

In contrast, other jurisdictions including Kenya, take as their fundamental citizenship requirement the proposition that a parent’s citizenship is the basis for conferring citizenship to the child (jus sanguinis). By giving primacy to the parent’s descent, this rule means that whenever a parent’s citizenship is uncertain, this transfers to the child; a highly disadvantageous situation.

Kenya’s independence constitution contained complex and antiquated provisions as it struggled to transition colonial subjects into citizens while at the same time safeguarding “British protected persons” who chose to remain resident in Kenyan territory. This complexity coupled with the level of state capacity at the time created opportunity for arbitrariness in the grant of citizenship, such that instead of citizenship being an individual right it became collectivized.

Belonging to ethnic communities deemed Kenyan became proxy for individual citizenship eligibility and determination as well as access to citizenship instruments; notably, identity cards and passports. In this scheme of affairs, some communities were considered less indigene to Kenya and its members became subject to discriminatory access to citizenship instruments. Such was the fate of Nubians, Somali, Galjeel and the recently recognized Makonde, among others.

The 2010 constitution was meant to cure these ills and set a foundation for a more just and secure regime based on equality. It proposes to do this in at least three ways. First, it granted citizenship to children of Kenyan citizens wherever born. This provision effectively deepens the jus sanguinis basis for citizenship while de-emphasizing reliance on jus soli rule.

To protect minors found in Kenyan territory, whose parents’ nationality is unknown, the constitution presumes such minors to be entitled to Kenyan citizenship by birth. Second, those forced to renounce Kenyan citizenship in order to acquire another during the period when dual nationality was not permissible under our law, are allowed to re-assert Kenyan citizenship but only “on application.”   Similarly needing to apply for Kenyan citizenship under the new constitution, are non-national spouses of Kenyan citizens, but their right matures after seven years of marriage. Thirdly, unlike in the previous constitutional dispensation, dual citizenship is recognized as a right

If the facts as stated in various reports hold true, Miguna’s case clearly falls in the category of those who renounced their citizenship before the 2010 constitutional order kicked in, and therefore requiring to make an application in terms of legislation, namely,  the Citizenship and Immigration Act. Only upon application as provided for in law does a reasserted citizenship crystalize.

The institutional arrangements for processing such an application, namely the Kenya Citizens and Foreign Nationals Management Service Board, the Minister for Interior and Director for Immigration, all play a role in the examination of the application. Indeed, section 10 of the Citizenship and Immigration Act sets down the procedure for regaining citizenship, and involves an application to the Minister.

Miguna’s deportation may be unfortunate but enough chinks exist in the procedural amour of the law to facilitate it, especially if no application to reassert his claim to Kenyan citizenship had been made. I am not certain if the existence of a Kenyan passport with his name on it is necessarily dispositive of his claim especially if his Canadian citizenship had accrued before the 2010 constitution. In fact, possession of a Kenyan passport and another country’s during the period predating 2010 would be anomalous on the face of it.

(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive Office of the Deputy President – This article expresses personal views of the author)

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