There is something profoundly revealing about the public controversy now unfolding around President Ruto's remarks concerning foreigners in Kenya. The immediate instinct has been to locate the controversy within immigration law, who entered lawfully, who has overstayed, who has a permit, who does business without authorisation, and who is entitled to remain. Those are legitimate questions.
But they are not the first constitutional questions. The more unsettling question is this: When a foreigner walks onto Kenyan soil, does the Constitution temporarily become less of a constitution? Recent reports of Burundi nationals and other East Africans facing hostility, including attacks on people and businesses, should force Kenya to confront that question with unusual seriousness. A foreigner may have an immigration problem. That does not make them a constitutional non-person to be precise.
The architecture of the Constitution is remarkably deliberate on this point. Article 20 provides that the Bill of Rights applies to all and binds all State organs and all persons. More importantly, many of its guarantees are deliberately expressed in the language of “every person” or “a person”, rather than “every citizen”. This is significant phraseology in the constitutional design. Article 260, in defining “person”, is equally instructive. The constitutional language is capacious; a person includes an individual and other recognised legal entities. Read together, these provisions establish a principle that is easy to obscure in the heat of immigration politics: constitutional personhood is not synonymous with Kenyan citizenship.
There are, of course, conspicuous exceptions. Article 35, dealing with access to information, expressly speaks in citizenship-specific terms. Article 38, concerning political rights, reserves the core political franchise to adult citizens. One cannot therefore contend that foreigners possess ALL constitutional rights as citizens. The right to vote and the right to access to information, for instance, are not open to foreigners. But that concession makes the opposite argument even more pronounced. Where the Constitution intended to distinguish citizens from non-citizens, it knew how to say so.
Where it instead said, “every person”, no one, not at least the core organ of state, the presidency, which ought to know better can casually insert the word “citizen”. This is why the popular proposition that foreigners “half enjoy” the Bill of Rights is constitutionally misleading. The Bill of Rights is not a membership card handed out according to nationality. Its starting point is human dignity and legal personhood, subject to specific constitutional limitations, most of which are universal in nature and only differ on the extent of limitation.
For us, Article 24 permits limitation of rights, but the limitation must itself satisfy constitutional requirements. It must be authorised by law, reasonable and justifiable in an open and democratic society, with relevant considerations including the nature of the right, the importance and purpose of the limitation, and whether there are less restrictive means available.
Those limitation criteria are enough red cards against governing migration through political improvisation. Kenya unquestionably has sovereign authority to control its borders, determine immigration status and remove persons who have no lawful basis to remain. The Kenya citizenship and Immigration Act supplies the statutory machinery for doing so. But sovereignty is exercised through law.
It is not exercised through public anger, roadside declarations or collective punishment. There is an especially dangerous slippage here. “You are unlawfully present” can, in a lawful system, be the beginning of an administrative process. It cannot become a synonym for “you have no rights” and must have to leave without being accorded procedural fairness which is the hip bone of rule of law under Article 10 of the Constitution.
The distinction matters enormously. A foreign national whose status is irregular may ultimately face removal. But until that lawful process occurs, the person remains a person. They retain the constitutional protections that attach to personhood. They remain entitled to dignity, fair administrative action, protection from arbitrary deprivation, and the other guarantees whose beneficiaries are constitutionally described without reference to citizenship. Article 47 is particularly relevant. Administrative action must be expeditious, efficient, lawful, reasonable and procedurally fair. The State cannot convert immigration enforcement into a theatre in which procedure is treated as meaningless.
Nor should citizens be invited to become an auxiliary immigration police force. The Constitution does not establish a popular tribunal for deciding who looks Kenyan enough to trade, work, live or walk safely through a neighbourhood. This is where the reported attacks acquire a constitutional significance that goes beyond immigration law. Once political rhetoric produces an atmosphere in which nationality becomes an invitation to harassment, the issue is no longer just whether an individual possesses the correct permit. It becomes whether the State is maintaining the constitutional order for everyone within its jurisdiction.
There is an irony Kenya should not miss. The East African Community project itself rests upon the idea that borders need not erase human dignity, economic interdependence and regional belonging. Burundians, Ugandans, Tanzanians, Rwandans and South Sudanese are not abstract foreigners arriving from an alien civilization in the moon. They are participants in a region whose integration Kenya has itself embraced. Even for just ‘gallery’ reasons. The deepest point of the Constitution may therefore be found in deceptively small words and phrases, “person” or “a person” or “all persons.” The terms are deliberately larger than the term “citizen.” Citizenship determines the political community and carries rights that foreigners cannot claim. But constitutional protection begins somewhere more fundamental. Before the State asks whether you belong to Kenya politically, the Constitution recognises that you exist legally and possess human dignity.
A passport may determine whether you may remain in Kenya. It should never determine whether, while here, you are a person in the eyes of the Constitution.
