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Miguna’s fate now draws focus on dual citizenship

By Wahome Thuku | Published Fri, February 9th 2018 at 00:00, Updated February 9th 2018 at 17:36 GMT +3
Miguna Miguna after he arrived in Toronto Canada

 

The deportation of self-proclaimed National Resistance Movement (NRM) General Miguna Miguna has exploded a debate on dual citizenship, both in Kenya and abroad.

And particularly abroad because dual citizenship is an article in the Constitution which the common Kenyan would not have had much interest in. Millions of Kenyan citizens have no intention of ever travelling or living abroad, leave alone acquiring citizenship of another country.

Until Miguna’s deportation happened on Tuesday night, many Kenyans, even those residing abroad, had not given a thought to the details required in acquiring dual citizenship.

Until the new Constitution was promulgated on August 27, 2010, dual citizenship was unknown in Kenya. One was either exclusively a Kenyan or a foreigner.

Before that date, the only other time the country had a moment of having to clearly define Kenyan citizenship with constitutional timelines was on December 11, 1963, being the eve of Independence Day which was December 12, 1963.

Indeed the Constitution that was repealed in August 2010 heavily covered citizenship in 12 sections that elaborated in detail what Kenyan citizenship entailed. It had clear provisions on transition from a foreigner to Kenyan citizen before and after independence.

On the eve of independence, every person who was born in Kenya but had become a citizen of the United Kingdom and all the British colonies became a Kenyan citizen. But it was on condition that one or both parents were born in Kenya.

Every person born outside Kenya but whose father qualified to be a Kenyan citizen, even posthumously, automatically became a Kenyan citizen on the eve of independence.

And any woman married to a man who was entitled to become a Kenyan citizen on December 11, 1963, was also entitled to get Kenyan citizenship upon making application.

The repealed Constitution required any Kenyan above the age of 21 years with dual citizenship to expressly renounce the citizenship of the other country to retain his or her status in Kenya.

And any Kenyan above 21 years, who after independence acquire citizenship of another country voluntarily other than through marriage, immediately lost the Kenyan citizenship.

The Constitution even provided that a person born in the high seas aboard a registered ship or aircraft was deemed to have been born in the place of registration. And if the ship or aircraft was a government registered vessel, the person was deemed to have been born in that country.

There was also provision for naturalisation as a Kenyan citizen, which was open to any person above 21 years who had been lawfully residing in Kenya for over five years, was of good character and competent in spoken Kiswahili among other requirements.

The current Constitution has seven articles that mainly provides for citizenship by birth and by registration and the rights of a citizen as well as how to apply for the same, renounce citizenship and how it can be revoked.

Between December 12, 1963, and August 27, 2010, thousands of Kenyans had migrated to other countries and acquired citizenship, thereby losing their status in Kenya.

RegainIing citizenship

The new Constitution reintroduced dual citizenship. However, under Article 14(5) of that constitution, one has to apply to regain that citizenship. The application is made in a two-page Form 1 provided under the Citizen and Immigration Rules.

This is the fact that has been unknown to many, who presumed that regaining Kenyan citizenship was automatic and no application was required.

It can be expected that many Kenyans who acquired citizenship in other countries will now apply to regain their Kenyans status.

The Constitution provides that citizenship is not lost through marriage or dissolution of marriage. Likewise, citizenship by birth cannot be revoked.

Upon regaining status as a Kenyan citizen, is that citizenship to be regarded as “birth” or “registration” and can it be revoked?  That will be the main question henceforth.

[Wahome Thuku is an advocate of the High Court of Kenya]


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