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January 19, 2019

Miguna deportation raises gaps in citizenship regime

NASA's Miguna Miguna addresses the media at Okoa Kenya offices on February 1, 2018. /JACK OWUOR
NASA's Miguna Miguna addresses the media at Okoa Kenya offices on February 1, 2018. /JACK OWUOR

The deportation of Miguna Miguna has brought to the fore the need to reflect on the citizenship regime introduced by the 2010 Constitution, and the enabling regulatory framework embodied in the Kenya Citizenship and Immigration Act (2011).

 

Without transgressing into the contested questions before the courts, this article aims to sheds light on the broader theoretical questions of citizenship and nationality in this country.

Citizenship is the legal bond that links an individual to his or her state. Legal citizenship grants status to the bearer, including the right of reentry. It is often a prized possession as signified by the quest by immigrants from Africa and other less-developed contexts for America’s diversity visa, the gateway to citizenship, and presumably the American dream.  

So central is the right to citizenship that the US Supreme Court in Luria v US (1913) defined citizenship as the “right to have rights”.

Two broad principles underpin citizenship regulations across different jurisdictions — birth and ancestry. Some states such as the US have adopted the role of place of birth (jus soli) as the basis for conferring citizenship.

This rule recognises the immateriality of a parent’s citizenship for purposes of determining that of a child.

It proceeds to grant to the child automatic citizenship based on where they are born.

No wonder President Barack Obama’s place of birth, Hawaii — which only became the 50th state of the Union in 1959, a few years before Obama’s birth — became controversial when some conservative politicians questioned his eligibility for the US presidency (which recognises only natural- born citizens as eligible to contest the presidency).

In contrast, other jurisdictions, including Kenya, take as their fundamental citizenship requirement the proposition that a parent’s citizenship is the basis for conferring citizenship to the child (jus sanguinis).

By giving primacy to the parent’s descent, this rule means that whenever a parent’s citizenship is uncertain, this transfers to the child, a highly disadvantageous situation.

Kenya’s Independence Constitution contained complex and antiquated provisions as it struggled to transition colonial subjects into citizens, while, at the same time, safeguarding “British protected persons” who chose to remain resident in Kenya.

This complexity, coupled with the level of state capacity at the time, created an opportunity for arbitrariness in the grant of citizenship, such that instead of it being an individual right, it became collectivised. 

Belonging to ethnic communities deemed Kenyan became proxy for individual citizenship eligibility and determination, as well as access to citizenship instruments, notably, identity cards and passports.

In this scheme of affairs, some communities were considered less indigene to Kenya and its members became subject to discriminatory access to citizenship instruments.

Such was the fate of the Nubians, the Somali, the Galjeel and the recently recognised Makonde, among others.

The 2010 Constitution was meant to cure these ills and set a foundation for a more just and secure regime based on equality. It proposes to do this in at least three ways.

First, it granted citizenship to children of Kenyan citizens wherever born. This provision effectively deepens the jus sanguinis basis for citizenship while de-emphasising reliance on the jus soli rule.

To protect minors found in Kenyan territory, whose parents’ nationality is unknown, the Constitution presumes such minors to be entitled to Kenyan citizenship by birth.

Second, those forced to renounce Kenyan citizenship in order to acquire another during the period when dual nationality was not permissible under our law, are allowed to re-assert Kenyan citizenship but only “on application”.  

Similarly needing to apply for Kenyan citizenship under the 2010 Constitution are non-national spouses of Kenyan citizens, but their right matures after seven years of marriage.

Thirdly, unlike in the previous constitutional dispensation, dual citizenship is recognised as a right

If the facts as stated in various reports hold true, Miguna’s case clearly falls in the category of those who renounced their citizenship before the 2010 constitutional order kicked in, and, therefore, requiring to make an application in terms of legislation, namely, the Citizenship and Immigration Act.

Only upon application as provided for in law does a reasserted citizenship crystalise.

The institutional arrangements for processing such an application — the Kenya Citizens and Foreign Nationals Management Service Board, the Minister for Interior and Director for Immigration — all play a role in the examination of the application.

Indeed, Section 10 of the Citizenship and Immigration Act sets down the procedure for regaining citizenship and involves an application to the Minister.

Miguna’s deportation may be unfortunate but enough chinks exist in the procedural amour of the law to facilitate it, especially if no application to reassert his claim to Kenyan citizenship had been made.

I am not certain if the existence of a Kenyan passport with his name on it is necessarily dispositive of his claim, especially if his Canadian citizenship had accrued before the 2010 Constitution.

In fact, possession of a Kenyan passport and another country’s during the period predating 2010 would be anomalous on the face of it.

Sing’Oei is an advocate and a legal adviser, Executive Office of the Deputy President. This article expresses personal views of the author

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