BAD LAW

Parliament at crossroads on dual citizenship

House considering to amend the law to include ambassadors as state officers.

In Summary
  • MPs argument was that it would be hard to define a dual citizen’s loyalty to the state, eliciting debate on the measurability of the same.
  • Pundits argue that the definition of state officers as spelt in the Leadership and Integrity Act is a violation of the Constitution. 
Parliament Buildings in Nairobi.
Parliament Buildings in Nairobi.
Image: FILE

Parliament is at crossroads over the confusion around its conditional approval of Mwende Mwinzi as Kenya’s envoy to Seoul, South Korea.

The decision has cast the light on Kenya’s dilemma in defining whether envoys and ambassadors are state officers. State officers are barred from holding dual citizenship, a situation that has played into Mwende’s bid to represent the country in South Korea.

 

Parliament wants to rescind its decision by expunging Mwende’s June 6 approval from the report by the Defence and Foreign Relations committee.

 

The Implementation committee chaired by Moitalel ole Kenta (Narok North) recommended the move, saying the law should be amended to expressly include envoys and ambassadors as state officers.

The committee further wants an audit conducted to ascertain whether there are serving envoys who are dual citizens. The Defence committee, chaired by Kajiado South MP Katoo ole Metito, approved Mwende’s nomination on condition she renounces her US citizenship.

Their argument was that it would be hard to define a dual citizen’s loyalty to the state, eliciting debate on the measurability of the same.

“A diplomat represents the interest of the sending state and must, therefore, be in a position to assert his/her country’s position without any possible conflict of interest,” Kenta's team said.

Pundits say it does not make sense that the country can entrust its key installations to foreigners but cannot trust its own dual citizens. Kenya Airports Authority and Kenya Airways are among entities that have been run by foreigners—but the two, Jonny Anderson (KAA) and Sebastian Mikosz (KQ), recently left office.

But pundits say it does not make sense that the country can entrust its key installations to foreigners but cannot trust its own dual citizens. Kenya Airports Authority and Kenya Airways are among entities that have been run by foreigners—but the two, Jonny Anderson (KAA) and Sebastian Mikosz (KQ), recently left office.

Parliament has also been hit following calls to investigate 10 MPs, and a former lawmaker, for allegedly holding dual citizenship.

MPs Aden Duale (Garissa Township, Leader of Majority), Jayne Kihara (Naivasha), and Charles Nguna (Mwingi West) have denied the claims, as have Nakuru Senator Susan Kihika and former MP Philip Kaloki. The EACC says the probe will extend to governors and Cabinet secretaries.

 

Mwende, born of a father from Mwingi, has petitioned the High Court. She argues the House decision was unconstitutional on grounds an ambassador is not a state officer as provided for in Article 60 of the Constitution.

She further argues that she is exempted by virtue of Article 78 as she was born in the US and as such cannot renounce her citizenship. Article 78 (2) states that only those who renounce their citizenship of foreign nations are allowed to hold public office.

The law says a state officer or a member of the defence forces shall not hold dual citizenship. However, clause 3 says the provision does not apply to judges and members of commissions.

Also exempted are persons who have been made a citizen of another country by operation of that country’s law, without the ability to opt out.

The Constitution has defined the offices of the president, deputy president, cabinet secretary, MPs, judges and magistrates, and members of a commission.

Other defined offices are those of MCAs, governors, CECs, Attorney General, Secretary to the Cabinet, PSs, KDF boss, NIS chief, IG and deputy inspectors general of the police.

Lawyer Tom Ojienda, acting for Mwende, says his client cannot opt out of the decision of being born in the US as she did not participate in the same.

Not every person in the diaspora is a dual citizen…just a fraction are. It is a right people need and there are many benefits. We are working with them to increase the remittances to $5 billion (Sh500 billion). This can only happen when they feel appreciated and not when they feel there are obstacles in the face of the law.
Kenya Diaspora Alliance chairman Shem Ochuodho

Those following the events around Mwende’s predicament say Parliament is to blame for the confusion it has found itself in.

The view is that the House contravened the Constitution when it enacted the Leadership and Integrity Act defining public officers as state officers.

Kenya Diaspora Alliance chairman Shem Ochuodho said the section of the Act, whose interpretation they are seeking at the court, is the problem.

“Our premise is that the Act contravenes the Constitution, which is the Supreme law. What we are requesting the courts to interpret is whether that clause is in line with the Constitution or it is a question of amending the supreme law through the backdoor,” he told the Star on the phone.

The alliance says an ideal situation would be for the law to restrict Kenya’s four sensitive offices – Presidency, Chief of General Staff, Head of Military Intelligence, and Head of NIS, as “it is easy to justify why the four should not have questionable loyalty”.

They are of the view that the restrictions on other public officers be removed, but such a change would require amendments to the Constitution – which KDA is not for at the moment.

Kenya’s journey on defining the place of dual citizenship in the law started in 2001, when then Kanu and NDP MPs shot down the first motion by Ochuodho.

At the height of the clamour for constitutional change, the Diaspora Alliance successfully lobbied for the inclusion of the clause on dual citizenship.

Their petition to the Committee of Experts was for the limits to apply to the four sensitive offices, but the handlers included state officers.

Ochuodho says as such diaspora remittances have been affected—they currently stand at about $2.7 billion (Sh280 billion).

“Not every person in the diaspora is a dual citizen…just a fraction are. It is a right people need and there are many benefits. We are working with them to increase the remittances to $5 billion (Sh500 billion),” he said.

“This can only happen when they feel appreciated and not when they feel there are obstacles in the face of the law.”

ODM leader Raila Odinga alluded to this when he weighed in on Mwende’s matter, accusing MPs of executing a petty vendetta against the nominee, adding that their decision amounts to killing the necessity of dual citizenship.

“Other than petty vendetta, there is no reason whatsoever for MPs to maintain Ms Mwende Mwinzi cannot be our ambassador abroad,” he said in a statement.

But Parliament wants Mwende’s case dismissed saying if allowed, the nominee would face a conflict of interest in advancing Kenya’s and US interests.

Clerk Michael Sialai on Monday told the court that any contrary decision will not only affect the House’s mandate but also offend the Public Appointments Act as well as the Leadership and Integrity Act.

Amani leader Musalia Mudavadi holds that the country is being hypocritical in its interpretation on the dual citizenship provision.