Mwinzi rightly appointed as ambassador to South Korea

In Summary
  • Nowhere in the Constitution are ambassadors regarded as state officers
  • Ambassadors are neither state officers nor members of the defence forces who are subject to the limitation in Article 78(2) of the Constitution
Envoy nominee Mwende Mwinzi
Envoy nominee Mwende Mwinzi

Congratulations to Ambassador Mwende Maluki Mwinzi on her appointment as Kenya’s ambassador to South Korea and for assuming the office promptly. Article 16 of the Constitution of Kenya, 2010 (‘the Constitution’) recognises dual citizenship and is categorical that, ‘A citizen by birth does not lose citizenship by acquiring the citizenship of another country.’

Mwinzi, a dual Kenyan citizen, does not have to renounce her foreign citizenship before she can serve as Kenya’s ambassador to South Korea. Moreover, she has already pledged her oath of allegiance to serve as ambassador. Her loyalty to Kenya is, therefore, not in question and she should be allowed to serve Kenya through the discharge of her ambassadorial duties.

On the question of dual citizenship and leadership in Kenya, Article 78(2) of the Constitution stipulates that, ‘A state officer or a member of the defence forces shall not hold dual citizenship.’

Article 260 defines a ‘state officer’ as ‘a person holding a state office’ and goes on to define ‘state office’ by listing the offices in government that are constitutionally regarded as ‘state offices’.

Nowhere in the Constitution are ambassadors regarded as state officers. Moreover, by a judgment delivered on November 14, 2019, in Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs & 2 others [2019] eKLR, Justice Makau held that ambassadors are not state officers.  

Ambassadors are neither state officers nor members of the defence forces who are subject to the limitation in Article 78(2) of the Constitution. A Kenyan ambassador can faithfully serve Kenya while remaining a dual citizen and without being forced to renounce their foreign citizenship.

The supremacy of the Constitution—well stated in Article 2(1)—cannot be overstated as concerns the service of dual citizens as Kenyan ambassadors abroad. Had the Constitution intended to limit dual citizens from serving as Kenyan ambassadors abroad, it would have expressly categorised them as state officers or expressly excluded them from so serving under Article 78.

Besides, it is not unthinkable that dual citizens would serve in a state office since Article 78(3) of the Constitution envisages dual citizens serving as state officers in the capacity of judges and members of commissions or where a dual citizen is ‘without ability to opt out’ of their foreign citizenship.

The President was right in officially appointing Mwinzi as Kenya’s ambassador to South Korea. He is bound by Article 131(2) to respect, uphold and safeguard the Constitution; promote respect for the diversity of the people and communities of Kenya; and ensure the protection of human rights and fundamental freedoms and the rule of law.

Parliament is now functus officio regarding the ambassadorial appointment of Mwinzi—South Korea has received her letter of credence presented to President Moon Jae-in at the presidential Blue House in Seoul, and she has assumed her duties'.

Mwinzi met the threshold for appointment as ambassador and Parliament’s hurdle regarding her dual citizenship has been settled as provided under the Constitution.

Accordingly, any action to prejudice her in the performance of her ambassadorial role is tantamount to unfair discrimination which Article 27 frowns upon.

So long as the President has not dismissed Ambassador Mwinzi, the matter is now subject to the Vienna Convention on Diplomatic Relations, 1961 and the rules of comity.