As the debate about Mwende Mwinzi’s dual nationality and her appointment as the Kenyan envoy to South Korea rages on and drags through the corridors of justice, activist Okiya Omtata has caused a storm by claiming that more than a dozen parliamentarians could be dual nationals.
In both instances, there are enough views for and against Kenyans holding dual citizenship especially those holding a state or public office. There are many reasons given on both sides but top on the list is patriotism. Those against it, argue that a dual national owes allegiance to more than one state and therefore, cannot be trusted to have the best interests of Kenya at heart.
From independence to 2010, Kenyan Constitution and citizenship laws did not allow dual nationality. While Kenya could not stop its citizens out there from acquiring other nationalities, it retained the position that whoever did so then automatically lost the Kenyan citizenship.
However, there were categories of Kenyans that by default held dual nationality even under the repealed constitution: one was a Kenyan child born to say a Kenyan father and an American mother like Mwende Mwinzi. Such a child remained a dual citizen up to the age of 23 when he or she would choose which nationality to retain.
If they chose the other, then they lost the Kenyan one. Another group of Kenyans that never lost their citizenship was Kenyan women married in countries where automatically they became citizens of those countries that their spouses came from. A good example was Switzerland.
What this shows is that even under the old order, it was reasonable to consider special circumstances and it is the same spirit that Article 78 (3 b) embraces. According to the Article, whereas all state officers must relinquish citizenships of other countries, there are three categories of state officers not required to do so. These are; judicial officers, constitutional commission members and Kenyans that are dual nationals by virtue of those other countries’ laws and without an option to opt out that other citizenship.
It will be good to see how courts interpret Article 78 as it will mean a lot to many Kenyans that have parents from different countries and thus are automatically citizens by birth in those countries as well. That said, the Constitution and other relevant laws are clear that state officers should not be dual nationals. Where one acquires nationality of another country by registration or naturalization, then they are without a shred of a doubt, not eligible to occupy a state office.
However, there is a huge debate among the Kenyan diaspora as to why that should be the case bearing in mind that most of them work hard and send money back home to build the Kenyan economy – remittances statistics that have been confirmed by the Central Bank of Kenya.
The question then that those holding dual citizenship want answered is -why the double standards – how is it that they are considered patriotic when sharing their resources or when they are leading their private lives yet, their loyalty is questioned when it comes to them holding public office.
Globally, the dual nationality debate is huge with some countries, like Somalia where their President is believed to also be an American Citizen, seemingly not bothered by it while others frown upon the mention of dual citizens being in leadership. On one side, the proponents of multiple nationality believe that the world is becoming flat and a global village where boundaries are falling and true global citizens emerging. Such global citizens can reside and invest anywhere and therefore holding dual nationality is crucial for them.
On the other hand, those opposed to dual citizenship argue that people holding multiple nationalities cannot be trusted and are not patriotic enough and would easily change allegiance at their convenience. While they could remotely entertain the idea of allowing dual nationality, for them it is unfathomable that dual citizens can hold public or state positions.
In Kenya, the clamour for the 2010 Constitution saw the Kenyan diaspora push for the provisions on dual nationality. At that time, everyone was trying to have their interests preserved in the constitution hence the bulky document we have as our constitution.
It is increasingly looking like the issue of dual nationality and how to treat Kenyans holding dual citizenship, was not well thought through. It is now dawning on us that this dual nationality issue is one that warrants attention and national discourse instead of directing it to the wrong people and for wrong reasons.
It is envisaged for example that the Kenyan diaspora will ultimately be represented in the National Assembly and the big question is how will that happen and who will be eligible? If this person is to be a true representative of their constituency then they should be one of them – a diaspora Kenyan who probably is a dual national!
Otherwise why would those in the diaspora then vote for someone they feel will not represent them fully? This is indeed a difficult and complex issue that as a country, we should have a discussion on even as we seek to amend the constitution.
By George Mucee the Practice Leader of Fragomen Kenya.