Saturday, Nov 29th 2014

Citizenship by marriage

Wednesday, April 25, 2012 - 00:00 -- BY JOHN CHIGITI

In many countries, marriage can confer citizenship to the foreign spouse who gets married to a citizen of that country. Under our old Constitution it was impossible for Kenyan women to confer citizenship to their foreign husbands. There was a lot of disquiet around the inequality. The fact that the provisions of personal law did not apply when dealing with issues of inequality under the repealed Constitution did not make life easy for such couples.
The Constitution and The Kenya Citizenship and Immigration Act , 2011 have since sorted out this mischief. Under Section 11 of, a person who has been married to a citizen of Kenya for a period of at least seven years shall be entitled, on application, in the prescribed manner to be registered as a citizen of Kenya, if -

(a) the marriage was solemnised under a system of law recognised in Kenya, whether solemnised in Kenya or outside Kenya;

(b) the applicant has not been declared a prohibited immigrant under this Act or any other law;

(c) the applicant has not been convicted of an offence and sentenced to imprisonment for a term of three years or longer;

(d) the marriage was not entered into for the purpose of acquiring a status or privilege in relation to immigration or citizenship; and

(e) the marriage was subsisting at the time of the application.

(2) The conditions for registration provided in section 11(a) to (d) shall apply to a widow or widower who has applied for registration under this section.

However, under the Act, a widow or widower who marries a non-citizen before the expiry of the period of seven years shall not be entitled to acquire citizenship by registration under this section.
Section 11 and 12 of The Kenya Citizenship and Immigration Act , 2011 is a very progressive provision in that it embraces equality in the marriage. Under the old, only men could confer citizenship to his wife and not the other way round. This occasioned a lot of inequality and offended the Convention on elimination of all forms of discrimination against women. Article 43 (3) of The Constitution stipulates that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
The legislator did not leave out the widows and the widowers. Under Section 12(1) of The Kenya Citizenship and Immigration Act , 2011 a foreign national who has been married to a citizen who but for the death of the citizen would have been entitled, after a period of seven years, to be registered as a citizen of Kenya under section 11, shall be deemed to be lawfully present in Kenya for the unexpired portion of the seven years and shall be eligible for registration as a citizen on application in the prescribed manner upon expiry of the seven year period.