• A State officer or a member of the defence forces shall not hold dual citizenship” (Article 78(2).
• Article 261 of the Constitution explains who is a state officer: It is quite a long list, including members of Parliament and county assemblies, judges, commissioners and governors.
The Star ran a leader on June 11: “For better or for worse, Mwinzi can't be envoy”. It shows that newspaper editors should stick to opinion and not try to be lawyers.
Let’s begin with what the Constitution says. Yes, it says that the holders of certain offices cannot hold foreign nationality. But, no, it does not say ambassadors may not do so.
WHY DUAL NATIONALITY AT ALL?
Until 2010, it was not possible to be a Kenyan and a citizen of another country at the same time — unless you were a child.
During the constitution-making process, the question of whether to change this was the subject of vigorous discussion.
Yash Ghai wrote a paper in early 2004 to try to help the efforts to reach consensus on controversial issues.
He wrote, “In the modern world foreign travel, living abroad for periods of time, marriage with foreign nationals has become increasingly common, to the point that it has even estimated that about 600,000 Kenyans are currently living overseas.
Many of these people will have children while overseas, in countries that give citizenship on the basis of birth alone.
At present, those children will have to make a choice of citizenship.
In the Kenyan context, there are also other factors such as communities whose members live on two sides of a colonial boundary, or pastoral communities whose members move across boundaries.
A clear majority of those who expressed a view to the CKRC when it was collecting views felt that it should be possible to have dual citizenship, though others (a minority) equally strongly felt that a person ought to make a choice.
“Dual nationality is being increasingly recognised by other countries (including, for example, the USA and Canada which were traditionally opposed to it). A recent estimate was that 92 countries in the world permit it. Most countries that have changed have done so in order to encourage continued connection with the country for reasons of economic benefit. An example is the Philippines with a large number of migrant workers overseas who contribute greatly by their remittances to the national economy.”
Factors like these led to the constitutional provisions that now says taking another citizenship does not automatically lead to losing Kenyan.
WHY IS THERE A CONCERN ABOUT DUAL NATIONALS?
This concern is precisely why, one assumes, MPs have been saying Mwende Mwinzi ought not to be an ambassador if she retains US citizenship.
There is a sense that being a citizen of a country means having a duty to be loyal to that country.
Let’s take a simple example. There is a crime of treason. Under the Penal Code of Kenya, that crime can only be committed by a person “owing allegiance to Kenya”. Generally, this phrase means being a citizen – though it might also mean having taken an oath when joining the military.
Ambassadors represent their country to other countries. If in a particular country a Kenyan ambassador who held another citizenship finds that the interests of Kenya and those of that other country conflict, would they not feel some difficulty?
In Kenya, not only the President but, more generally, “A State officer or a member of the defence forces shall not hold dual citizenship” (Article 78(2). So even an ordinary soldier, who is not a “State” officer must be Kenyan and Kenyan only.
HOW ABOUT AMBASSADORS?
Rashly the Star editorial said ambassadors must be state officers because they are paid by the state.
But Article 261 of the Constitution explains who is a state officer: It is quite a long list, including members of Parliament and county assemblies, judges, commissioners and governors.
But ambassadors are not on the list. Incidentally, judges and commissioners are not affected by the rule about nationality, so foreigners, and dual nationals, may be appointed.
Could Parliament insist on a candidate for an ambassadorial post giving up the other nationality?
Surely loyalty to Kenya would be a factor in Parliament’s decision on whether to approve an ambassadorial nominee.
Nationality might be a factor in this decision. But since the Constitution (a bit mysteriously) does not include ambassadors in the class of state officers, it is not right to insist that automatically a possible ambassador is to be treated like a state officer for the purpose of nationality.
WHAT IS THE POSITION OF MWENDE MWINZI?
Mwinzi was born in the US, of Kenyan parents. She automatically became a US citizen.
She also became Kenyan because her father was Kenyan. Under the old Constitution, anyone in that position had until the age of 23 to renounce the other citizenship, and if they did not, ceased to be Kenyan.
Justice Isaac Lenaola stressed this in a case in 2018. Arguably, therefore, she is not in fact Kenyan. If so, she has the right to get that citizenship back.
Some people might say, “What about the Miguna case?” Miguna’s situation is a bit different because he became Canadian as an adult, so the case decided by Justice Lenaola is more directly on point.
But also there is some doubt whether Miguna’s case was rightly decided. Neither case, being decided only by the High Court so far, would have to be applied by a later High Court.
Is it actually possible to renounce US citizenship? Some commentators have suggested that this is hard. But in reality that is not so.
Apparently, it is expensive – over Sh200,000. And you can’t do it until you have paid any US taxes due. US citizens have to pay taxes wherever they are (one reason for people renouncing citizenship). Does the US publish the names of people who renounce their citizenship – naming and shaming?
In fact, the old Kenyan Constitution said that if you could not renounce (as some countries do not allow it) the law should set out a procedure for declaring that you had done what they could to renounce the other nationality.
WHAT DO OTHER COUNTRIES DO?
Many people know that the US requires its president to have been born in America as a citizen. Many other countries do not specify requirements.
Boris Johnson (likely next British Prime Minister) was Mayor of London while a dual US/UK citizen. Almost certainly that would not have prevented him, legally speaking, being Prime Minister either. In fact, he renounced US citizenship a few years ago.
Many countries would prevent elected foreigners being elected representatives because to stand for election one must be qualified to vote, and foreigners often cannot vote.
But if the country allows dual nationality, that may not be a bar. The US Constitution excludes people who have not been citizens for at least seven years (nine for Senators) from being members of Congress, but dual nationals are not excluded.
The Indian Constitution does not allow foreigners to be MPs (and that country does not allow dual nationality at all). Australia allows dual nationality in general, but not for members of Parliament.
Many countries would allow junior military officers to hold foreign nationality – or even not to be citizens of the country at all. But for senior ranks, this would be unusual. The British and French armies famously use foreign soldiers.
Most countries would not appoint a dual national as ambassador, though their law may not specifically ban it. Still less would they appoint someone who was not a citizen at all (though a few countries – the sort that sells their passports also - may do so).
It is hard to get across legal issues in a short article (even when the Star is generous with its word limit). The ultimate decision on the law is that of the courts, though even then we are entitled to disagree – but not to disobey.
Some points made here would require complex arguments in any court case.
It is important not to rush to make decisions without understanding what the Constitution, sometimes including the old Constitution, says, and carefully thinking through the issues.