By Evelyn Kwamboka
A politician, who successfully dislodged Wajir South MP Abdulrahman Hassan from his parliamentary seat in an election petition, has refused to be charged as an Australian citizen.
Dr Mohammud Sirat, who holds a Kenyan identity card and passport, yesterday said charging him as a foreigner would breach his constitutional rights.
Sirat said if the prosecution believed he has dual citizenship, they should have stated in the charge sheet that he is a Kenyan/Australian citizen. The court was told by allowing the prosecution to charge him as a foreigner, it would be taking away his presumption to a fair trial.
The Immigration Department wants Sirat, who is preparing to contest in the coming Wajir South by-election, charged as an Australian for being in the country illegally.
The charge states that on May 25, 2008, at Nairobi’s South C estate, being an Australian, he was found to be in the country unlawfully.
The other count is that on November 29, 2006 at Nyayo House, he misled Mr William Okello, an immigration officer, by not disclosing he was an Australian.
Free person
It is this charge sheet that he is now challenging before Nairobi Chief Magistrate Gilbert Mutembei, on grounds that his rights would be violated if he takes a plea.
"Once the charge sheet is admitted by the court, he will not be a free person, but an Australian and without a fair trial in such circumstances," his advocate, Ms Kethie Kilonzo told the court yesterday.
For the prosecution, State Counsel Victor Mule said there is no provision to defer taking plea or rejecting a charge sheet.
He said he should file the application challenging taking of plea at the High Court’s Judicial Review Division and not the magistrate’s court.
"He failed to disclose that he had dual citizenship. The offence was committed before the new Constitution was passed," he said.
In his decision on the election petition, Justice Luka Kimaru said Sirat, "by virtue of his birth in Kenya, and the fact that both his parents are citizens of Kenya, is entitled (to) citizenship of Kenya."
The possession of a Kenyan national identity card and passport, the judge ruled, are prima facie evidence of citizenship.
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