Following our review of the Constitution of Kenya 2010 in totality, there is an apparent denial of registered and or naturalized citizens the right to dual citizenship under the supreme law of the land. As such, we advise as follows:
Citizenship is a right enshrined under Chapter III of the Constitution of Kenya, 2010 (hereinafter, “the Constitution”). It may be acquired by Birth or Registration. It entitles a citizen to rights, privileges and benefits of citizenship, subject to the limits provided or permitted. (See Art. 12 (1) of the Constitution).
1.1. Right to Dual Citizenship
One of the rights and privileges of Citizenship is the right to Dual Citizenship, and entails, the right to hold the citizenship of more than one country, holding two or more passports and simultaneously enjoying entitlements accruing from the status of being a citizen, including, the right to live and travel freely within their native and naturalized countries without immigration constraints. It is provided for under Article 16 of the Constitution, which provides that: “A Citizen by Birth Does Not Lose Citizenship by Acquiring the Citizenship of another Country.”
1.2. Constitutionality of the Provision on Dual Citizenship
The Constitution is the supreme law of Kenya, and while it binds all persons, it also expressly precludes its validity/legality from challenge before any Court of Law. (See Art. 2 of the Constitution)
As such, whereas there is an apparent discrimination against ‘registered’ citizens in respect of acquisition of dual citizenship, the provision cannot be successfully challenge in Court. Only the Parliament can heal the discrimination through an amendment if it so deems fit.
2. IMPLICATION OF THE CONSTITUTIONAL PROVISION ON DUAL CITIZENSHIP
2.1. A careful construction of the Article 16 of the Constitution shows that DUAL CITIZENSHIP IS ONLY AVAILABLE TO CITIZENS BY BIRTH, and not naturalized and or registered citizens.
2.2. A Person Is a Citizen by Birth if ON THE DAY OF THE PERSON’S BIRTH, whether or not the person is born in Kenya, EITHER the MOTHER OR FATHER of the person IS A CITIZEN. (See Article 14 of the Constitution).
2.3. As such, THOSE BORN IN KENYA and WHOSE PARENTS ARE/WERE NOT KENYA CITIZENS, ARE CITIZENS BY REGISTRATION and not by birth.
2.4. The dual citizenship provision under the Constitution is not only in direct contravention of the equal protection clause of the Constitution that extends equality of opportunity and rights for all citizens without discrimination, but also in contravention of UN Declaration of Human Rights and other international treaties which mandate all Governments to allow all citizens the right to enjoy equality before the law, participate in the government and the public service, to tap on much-needed but ignored resource and human development of all its citizenship under the impetus of globalization.
3. ADVANTAGES TO KENYA IN GRANT OF DUAL CITIZENSHIP TO NATURALIZED CITIZENS
Dual citizenship is becoming more common in today's increasingly interconnected global economies. Countries such as India, the Philippines and Mexico have sought to utilise the advantages of dual citizenship by liberalizing their citizenship laws. These countries have realized that dual citizenship has the advantages of broadening a country's economic base, fostering trade and investment between the dual citizen's two respective countries. One of the benefits of dual citizenship is the ability of dual citizens to influence economic and political decisions in their countries of birth and descent in favour of their host countries.
3.1. Losing and or Renouncing Kenyan Citizenship
Registered/naturalized UK citizens are not legally obligated to give up their citizenship of their country. Britain has never ordered newly naturalized citizens to present themselves to their native country's embassy in order to formally renounce their original citizenship. Legally, there is nothing in the Constitution and there are none from the British Courts preventing the Britain from requiring all naturalized citizens to officially renounce their citizenship to their native country as a condition for naturalization. US fully embrace dual citizenship for its entire citizenship. It does not preclude a Kenyan from serving at local Government or national Government level. It does not preclude Kenyans from becoming Judges or holding political office. Indeed, the British Government has recognized the benefits of multiculturalism by including more Blacks in all positions including local Government and in the British parliament.
3.2. Comparative Analysis
In the last decade or so, Mexico, Ecuador, Colombia and the Dominican Republic, the suppliers of some of the fastest-growing immigrant groups in America, have allowed their nationals to become citizens elsewhere without losing their original nationality. New leaderships in South Korea and India have expressed support for the same idea. Australians in the United States have been pressuring their government to allow dual citizenship so they can become Americans without losing their native status. Economic advantage is the main motivation here: avoiding the stiff estate taxes that the U.S. government imposes on foreigners operating in the United States. There is a large degree of evidence of naturalized UK and US citizens operating in official capacities in their former country of origins.
3.3. Expertise, skill and experience
As society becomes more global and integrated, the value of Dual Citizenship and a second passport is increasingly becoming a necessity. The comforts of being an American or European Citizen, at the same time maintaining one's original nationality, provides an individual with an abundance of benefits and set of liberties. Economically, Kenya stands to benefit. Dual citizenship provides access to financial investment rights (property, securities, retirement, social security benefits, etc.). British citizenship for instance, provides access to adequate medical benefits, including potentially free healthcare, especially for those reaching the age of retirement. Access to educational benefits, including higher education, are all possibilities within the reach of Kenyans who enjoyed dual citizenships. It is in Kenya’s best interest to have an individual who has dual citizenship as a Member of Parliament, especially at this time, without fear of losing citizenship of country of birth. The need for international assistance has never become so critical. The need to seek, identify and maintain individuals whose expertise and experiences transcend the day-to-day norms of the Kenyan society is a responsibility, which all Kenyans cannot afford to ignore. And we must maintain such talent within Kenya, which the discriminating spirit of Article 16 obviously trumps upon.
3.4. Free Enterprise and Democracy
The ideals of Free Enterprise and Democracy are complementary. The development and sustenance of a strong middle class is essential to attaining stability and growth in Kenya. Dual citizenship has the ability to bring this about. The future seems to provide a great promise. Dual citizenship will help to democratize the politics of Kenya, without a citizen the fear of losing citizenship of the country of birth. Democracy indeed, is built on informed citizen participation, especially those who have lived and continue practicing it in developed countries. The ideal of democracy is meaningful participation of an engaged and informed citizenry. Dual Citizenship, for all including registered citizen, is without doubt, one of the ways to foster Kenya's future economic development.
In view of the above, and considering that Article 16 of the Constitution of Kenya is potentially inconsistent with the spirit and intent of the Bill of Rights, it is in the interests of Kenya’s social-economic and political future that the said Article be amended to guarantee ALL citizens of Kenya the same measure of rights of citizens, including the right to full dual citizenship.
The Article may be amended to state that: “A Citizen Does Not Lose Citizenship by Acquiring the Citizenship of another Country.”
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