Judge censures security agencies, State organs

Justice George Odunga     PHOTO: COURTESY

By WAHOME THUKU

Patricia Olga, 68, is a Kenyan-born British national. She was born in Eldoret on March 22, 1946. Twenty years later, on October 1, 1966, she was married to Kenneth William Howson, a Kenyan citizen. Their marriage was solemnised in Kenya and they are still married to date.

On March 13 last year Mrs Howson decided to exercise her constitutional right and applied for Kenyan citizenship.

Article 15(1) of the Constitution provides that a person who has been married to a citizen for a period of at least seven years is entitled, on application, to be registered as a citizen.

But the registration is not automatic. The Kenya Citizenship Act of 2011 provides that the person shall be entitled to be registered as a citizen only if the marriage was solemnised under a system of law recognised in Kenya (whether it was done in Kenya or outside), the applicant has not been declared a prohibited immigrant in Kenya, has not been convicted of a criminal offence and imprisoned for three years or more, the marriage was not entered into for purpose of acquiring status or privileges of a citizen and the marriage is still subsisting at the time of making the application.

Howson had met all these requirements. Her application papers were forwarded to the National Intelligence Service (NIS) for scrutiny.

After five months of waiting in vain, she moved to the High Court in Nairobi on September 18 and sought orders to have the authorities compelled to issue her with all the documents for registration as citizen within 30 days.

She sued the Interior Cabinet Secretary, the Immigrations director and the Attorney General, accusing them of breaching her legitimate expectation to fair administrative action as provided for under Article 47 of the Constitution — to be issued with Kenyan Citizenship certificate within a fair and reasonable timeline after complying with the legal requirements.

Administrative power

She told the court that she had fulfilled the constitutional and legal requirement to apply for citizenship by marriage. Despite several correspondences from the Immigration Department, no response had been coming forth.

During the hearing, her lawyer submitted that there had been a delay of eight months hence the authorities’ action amounted to improper, arbitrary and inefficient exercise of administrative power and discretion contrary to the law.

The Immigration Department defended itself, saying the application was forwarded to NIS for scrutiny and vetting and preparation of  confidential security reports, in accordance with the law.

The NIS would forward the report to the Citizenship Advisory Committee, which makes recommendations to the Cabinet Secretary to either grant or reject applications for citizenship. Chief Immigration Officer Alfred Abuya told the court that they had no control over the time the NIS would take to complete the process.

Abuya argued that Howson’s application was among many others waiting in the queue at the NIS and the law does not stipulate a specific timeframe within which the citizenship should be granted.

He urged the court to dismiss the application saying it was premature. The authorities conceded that the applicant had fulfilled all the legal requirements.

Presiding High Court judge George Odunga considered Article 47 of the Constitution which provides everyone with a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Howson was entitled to the same right though she was not a Kenyan citizen.

Judge Odunga said the six months from the time the application for citizenship was made to the time Howson filed the case amounted to inordinate delay.  “The delay in processing such an application deprives the applicant from the enjoyment of certain rights. To state that since there is no timeframe for considering the application no amount of delay can be termed as inordinate, in my view is irrational,” the judge said.

Odunga said the fact that the NIS was processing the confidential report did not bar the Immigration Department from carrying out their constitutional obligation especially if the report was not forthcoming.

“The respondents have contended that the applicant is among many other applicants who are still undergoing security vetting by the National Intelligence Service to determine their suitability. They have however not stated for how long this security vetting has been going on.

Timeline

“What is known however is that the applicant has been waiting for her application for eight months while the National Security Intelligence continue to babysit the same. That state of affairs cannot be tolerated as it clearly goes contrary to Article 47 of the Constitution.”

He added: “Whereas there is no specific timeline within which the application for citizenship ought to be considered, Article 259(8) of the Constitution provides that if a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay, and as often as occasion arises. Eight months delay in considering an application for citizenship without informing the applicant at what stage such application has reached is clearly unreasonable,” the judged summed up.

Justice Odunga acknowledged earlier remarks by the High Court saying the Kenyan security arms had not tried to understand and appreciate the provision of the new Bill of Rights and that the impunity yester-years was still thriving in the executive arm of government.

“For the security intelligence to sit on such a report for an unnecessarily and unjustified long period of time would fall foul of Article 47 of the Constitution and would amount to an abuse of power,” he held.

He directed the Interior Cabinet Secretary and the Director of Department of Immigration Services, to issue all relevant and necessary documents for the registration of the applicant as a Kenyan Citizen to Howson within 30 days from the date of his order. He also ordered them to pay costs of the suit to the applicant.

The order could have influence on other foreigners who intend to make similar applications for Kenyan citizenship or those whose applications are still being delayed by the authorities.

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