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May 26, 2018

Why deporting Miguna was wrong

Why deporting Miguna was wrong
Why deporting Miguna was wrong

As a political opponent Miguna Miguna is a major presence for his bravado, abrasive eloquence, anarchical bent and sheer guts. The self-declared NRM general was bound to give the Jubilee administration a rough time in its second term in power. He left no doubt as to the challenge he posed to the peace and quiet of those in power when he dared Interior CS Fred Matiang’i to arrest and charge him for administering the oath to Raila Odinga.

In a sense, his deportation was a rare master stroke to water down extremist strategies by NASA in the short run. But in the long run, his deportation is self-defeating, ahistorical and less smart than it seemed in the heat of the moment, for five reasons.

First, the preamble to our Constitution and Article 1 on sovereignty of the people recognise that there existed people in the African territory now known as Kenya upon whom the British foisted a government. After Independence, they willingly established a lawful authority upon themselves.

Anyone born in Kenya and whose parents belong to any of the 42 indigenous communities is a Kenyan by a primordial and pre-constitutional right. They cannot cease to be so by an act of the state or operation of any law of a foreign country. In short, Miguna could not lawfully renounce his Kenyan citizenship and any such renouncement was and remains void, if it ever occurred.

Secondly, during the constitution-making process, the rationale for allowing dual citizenship for Kenyans was twofold. First, to spare Kenyan citizens the dilemma or anguish of having to renounce their citizenship in order to secure the citizenship of another county.

It was to facilitate the Kenyan Diaspora — whose remittances are the highest foreign exchange earner for Kenya — to secure socioeconomic advantages the citizenship of the countries they reside in might offer. Dual citizenship is neither a trade-off nor a negation of a native Kenyan’s inalienable right to the non-extinguishable citizenship of his ancestral land.

Thirdly, citizenship is only recognised — not conferred — by government in a given territory. Thus, a government issues an ID card or passport to acknowledge rather than confer citizenship upon the recognised inhabitants of its jurisdiction. In other words, a passport is a right of every citizen and not a privilege conferred by government during good behaviour of a citizen.

The Bill of Rights is categorical that the political rights enshrined in Article 38 are exclusive rights of citizens and by dint of Article 39( 3 ) of the Constitution every citizen has the right to enter, remain in and reside anywhere in Kenya. These citizenship rights are secured, sacred and remain beyond the reach of the State, political contestation or lawful derogation. Government can only regulate rather than create and extinguish these exclusive citizens’ rights.

The fourth reason is historical and why I was embarrassed by Miguna’s deportation. According to historians Tabitha Kanogo and Frank Furedi, the deportation of thousands of Kikuyu families from Olenguruone in 1946 was one of the major causes of the Mau Mau revolt in the 1950s. When the rebellion broke out in 1952, my late father — as a 16 years’ teenager — was one of the members of the Kikuyu, Embu and Meru communities who were “deported” from Nakuru district to their respective native reserves.

I am eternally proud and grateful to my hero, Dedan Kimathi, who established the Kenya Land and Freedom Army to fight colonial rule. After Independence my father returned to Nakuru where I was born.

During the agitation for multi-partyism, Kanu politicians from places like Nandi district began threatening to “deport” foreigners (meaning Kikuyus, Luhyas and Luos) from the Rift Valley Province if they continued supporting multiparty democracy. Deportation is a dirty word and is not a fate I can wish upon any Kenyan citizen, however revolting their brand of politics.

There is a fifth reason why Miguna’s deportation horrified me. President Kenyatta is a Kikuyu, the tribe whose citizenship rights have most often been questioned by evil political forces. The 2010 Constitution deliberately secured citizenship rights in such an absolute manner that anyone, Kikuyus included, will never have to worry again wherever they choose to reside in Kenya. It is therefore both ironical and unwise for a government with a Kikuyu at its head to undermine the citizenship rights of any Kenyan. Governmental power is transient in nature.

What happens tomorrow when a non-Kikuyu takes over and begins to question the citizenship rights of Kikuyus for political expediency? As attractive as Miguna’s deportation might be, I cannot endorse it without feeling that I am betraying Dedan Kimathi and my late father. Period!

 

The writer is a constitutional lawyer

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