Kenya's Ruling Spotlights
Dual Citizenship in the Diaspora
By Waikwa Wanyoike

A display of Kenyan andAmerican passports; the pending draft constitution in Kenya contains dual citizenship for its citizens

Toronto, Canada -- There is a widely held belief that the current Kenyan constitution prohibits, without exception dual citizenship for persons over 21 years of age. The High Court of Kenya has recently ruled that this view is wrong. Justice Kimaru ruled that under the current constitution, dual citizenship is allowed for persons who got their Kenyan citizenship by birth and did not or do not renounce it while acquiring the second citizenship.

The importance of this decision cannot be gainsaid. In fact, provision for dual citizenship has been one of the prominent issues in the ongoing constitutional debate. Moreover, the importance of the Kenyan diaspora has increased because remittances from abroad hugely supplement the economy. Any real or imaginary constitutional restriction on dual citizenship will dampen the diaspora's ability to enjoy fully the advantages of working in their new countries while still maintaining the benefits of their Kenyan citizenship.
The court decision on January 22, relates to a petition by Mahamud Sirat challenging the election of Abdi Abdirahman as the Wajir South MP. Abdirahman asked the court to dismiss the petition saying Sirat is not a Kenyan citizen.

Abdirahman said Sirat acquired Australian citizenship and hence lost his Kenyan citizenship. The high court disagreed and made two significant findings. First, it found that Abdirahman failed to provide any credible evidence that Sirat had acquired Australian citizenship. Second, it ruled that there is nothing in the Constitution that prohibits a Kenyan from acquiring dual citizenship. He said a Kenyan with dual citizenship will remain a Kenyan so long as he or she retains the country's citizenship. Put another way, the court held that so long as the second country does not require renunciation of the Kenyan citizenship, a Kenyan by birth cannot lose his citizenship. This second finding will reverberate in a big way beyond the specific dispute between Sirat and Abdirahman.

Kenya is a common law jurisdiction. The force of its law derives from both the statutes and court decisions. The first are laws made by Parliament and the second laws made by court or judge-made laws. Judge-made laws derives either from interpretation of statutes, government policies, customs or judicial domestication of international law and norms. In a common law jurisdiction, a judge-made law has the same force as the statutes. And this is why Justice Kimaru's ruling is 'So important. It means the government is required to recognize dual citizenship for persons who acquired their Kenyan citizenship by birth.

The government will have to make the necessary administrative adjustments to ensure the ruling in the decision is honoured. This may mean that the relevant ministries - specifically Immigration and Foreign Affairs - will have to prepare and issue directives to their staff to ensure they do not act in a manner that contravenes the spirit of the high court decision. One therefore wonders why it took so long to recognize the fact that the current constitution does not prohibit dual citizenship? When one casually reads the Constitution, and specifically paragraph 97(3) (a) the impression created is that dual citizenship is prohibited for anyone over 21 years of age.

However, judicial interpretation of any statute requires a contextual approach. In essence, this means going behind the words in order to understand the context, the purpose for which the words were written. And this was the genius of Justice Kimaru - in that he found the limitations on dual citizenship in the current constitution were meant to apply only to individuals of certain categories who qualified to acquire Kenyan citizenship and whom "having the option of retaining British citizenship, were being subtly encouraged to decide whether they desired to be citizens of the newly independent Kenya or be subject of the United Kingdom and colonies."

The provision on dual citizenship was never intended to prohibit those persons who were Kenyans by birth from acquiring citizenship of another country. Justice Kimaru's ruling is anchored further by recent pronouncement by the Minister for Immigration Otieno Kajwang over the issue of Miguna Miguna, the Prime Minister's Adviser on Coalition Affairs, who was said to be not a Kenyan because he has acquired Canadian citizenship. Kajwang clarified: "losing citizenship is not that easy because it's a birthright." He added, "even if you want to renounce it, the Kenyan government must release you so that you don't become stateless."

Given Kajwang's position in government, he has - or rather the government has - created a legally enforceable legitimate expectation that Kenyans by birth who acquires a second citizenship without renouncing their Kenyan citizenship will have dual citizenship recognized.

Waikwa practices law in Toronto, Canada.