- Makau says Mwinzi is a public officer appointed by the President, not a state officer
- Says appointment to position of ambassador was not an event but a process
The High Court has ruled that ambassadorial nominee to South Korea Mwende Mwizi cannot renounce her US citizenship because she acquired it by birth.
Justice James Makau said he had no hesitation to agree that citizenship by birth cannot be taken away by anyone.
The judge said that Mwinzi falls within the exception and she is protected by the Constitution. She is a public officer appointed by the President, not a state officer.
“There is no legislation enacted that the office of ambassador is a state office. It should be noted by the court that the office of the ambassador is a public officer having been appointed by the President,” Makau said.
The judge however dismissed the application by Mwinzi citing that the petition was pre mature.
He said the appointment to the position of ambassador was not an event but a process.
“Considering the position that the matter is still in progress and it's not complete, the process should be allowed to be completed”, he ruled.
Makau noted that the President nominated the petitioner but he was yet to make the appointment formally on the advice of the National Assembly
“I dismiss the petition on grounds of premature,” he said.
Mwinzi filed a suit at the Constitutional and Human Rights Division of the High Court in February, seeking to have Parliament stopped from forcing her to renounce her US citizenship before she takes up the job.
Through lawyer Tom Ojienda, she argued that the committee’s recommendation was unconstitutional and illegal since only a state office requires an appointee to hold Kenyan citizenship alone.
Ojienda further asked the court to reject an application for adjournment saying the 14 days requested were only for mischief.
Mwinzi says she is a US citizen by birth and cannot renounce this before taking up the position as recommended by Parliament’s Departmental Committee on Defence and Foreign Relations.
On May 2, President Uhuru Kenyatta nominated Mwinzi but after vetting, MPs recommended that she should only be appointed after she renounces her American citizenship.
“My US citizenship was acquired at birth and as such, my citizenship or the process of opting in was a consequence of circumstances out of my control,” she argued.