Proposed law gifts ‘outsiders’ citizenship status

By Julius Kitheka

With the process of integration for members of the East African Community having formally kicked off last Thursday, Kenya may have unknowingly embarked on an ‘ambitious goal’ to accord as many members of neighbouring countries as possible citizenship status.

And there is no denying August 5 could mark the beginning of an upsurge in population figures if the Greens have their way at the referendum poll, thanks to the highly defective and porous citizenship legislations stipulated in the Proposed Constitution.

While focus has been about trading and employment opportunities open to the relatively high skilled and versatile Kenyans, what is lost to many is cheap labour the EAC Protocol will open up to Tanzania, Uganda, Rwanda and Burundi nationals, especially along the borders.

Kenya may find herself with a host of domestic workers including watchmen and house-helps who after a short period of stay may easily become Kenyans. All they will have to do is marry a local.

Those with intent to enter into marriages of convenience, to just acquire citizenship, may easily abuse article 15(1) of the Proposed Constitution. And one does not have to organise a major wedding as the Constitution relegates this critical procedure to a mere registration affair. What is more, it states such individuals shall be ‘entitled’ to Kenyan citizenship! The right wording ought to be ‘eligible’ instead of ‘entitled’ to give the relevant Government officer to inquire into the circumstances of each specific case. So what will stop layabouts from neighbouring countries from becoming Kenyans by a stroke of the pen? Haven’t some ‘enterprising’ Kenyans in Diaspora acquired citizenship of other countries by contracting commercial marriage arrangements where they pay heftily for acquisition of marriage certificates to their so-called spouses?

Even more intriguing is that the Proposed Constitution could open floodgates for some in the neighbouring countries to turn Kenya into a children’s dumping ground. Why a struggling developing country would want to play Santa Claus by overstretching its thin resources begs a host of answers.

Article 14 subsection (4) states: "A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth".

While it is commendable this piece of legislation seeks to rescue the Kenyan child from destitution, the law is open to abuse. One even wonders where these ‘children who appear to be eight years old’ are.

What is so important about the eight-year appearance? Why are they being presumed to be citizens ‘by birth’? One is compelled to refer to, among others, Article 137 (1)(a) where a person who wants to be a president must be a citizen by birth.

As Special Programmes Minister Naomi Shaban recently observed, this law opens the country to an influx of such children whose qualification for citizenship is mere presence and appearance. Are we so desperate for new citizens to craft this clause in such a manner?

Worse still, there is no cut-off time when this article will cease to operate. Shouldn’t there be a time limit when this presumption will cease to operate assuming that there is any valid reason for it?

Paradoxically, the Ministry of Education recently directed all candidates in Standard Eight and Form Four to provide birth certificates before registering for national exams. The import of this is the Government’s admission of the presence of foreigners, known and unknown to it, who have been sitting national exams.

Now, with this constitutional window wide open allowing all and sundry to be automatically presumed to be citizens ad infinitum, someone is surely economical with the truth or is deliberately hoodwinking us.

Clearly, the supposed safeguards in Article 17(2) are not foolproof. Let’s make what is good better and safeguard our right and that of future generations.

—The writer is an advocate of the High Court