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Kenya Dual Citizenship - Landmark Ruling

Sent: Mon, February 8, 2010 11:05:23 AMSubject: Kenya Dual Citizenship - Landmark Ruling
On January 22, 2010, Justice L. Kimaru of the Kenya High Court ruled that the current Kenya Constitution does not prohibit the acquisition of dual citizenship and that one does not loose Kenya citizenship by acquiring citizenship of another country unless in so doing, he/she renounces Kenya Citizenship.

Below are some excerpts from that decision.

Section 89 of the Constitution guarantees any person born in Kenya after 11th December 1963 of citizenship of Kenya if at the date of his birth one of his parents is a citizen of Kenya. The petitioner therefore, by virtue of his birth in Kenya, and the fact that both his parents are citizens of Kenya, is entitled citizenship of Kenya.

My understanding of the 1st respondents application is that by acquiring Australian citizenship and thereby being issued with an Australian passport, the petitioner had ceased to be a Kenyan citizen. Does Section 97(1), (3) and (7) of the Constitution deprive a Kenyan citizen by birth his citizenship upon acquiring nationality of another country? My reading of Section 88, 90, 92, 93, 94, 95 and 97 of the Constitution leads me to the conclusion that the said Sections of the Law prohibited persons of a particular category who are citizens of other countries at the time Kenya attained independence.

It does not apply to citizen of Kenya who acquired citizenship by virtue of their birth from acquiring citizenship of another country after attaining twenty-one years of age. The said Sections of the Constitution must be read in the context by which they were enacted. At the time Kenya attained independence, certain category of persons who qualified to acquire Kenyan citizenship, and 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.

Even assuming that the petitioner had indeed acquired Australian citizenship, there is nothing in the constitution that specifically prohibits the petitioner from acquiring such citizenship while at the same time retaining his Kenyan citizenship provided that Australian law allows for its citizens to acquire and have dual nationality.

There is only one exception; this is where the petitioner specifically renounces his citizenship of Kenya and acquires citizenship of another country that does not allow dual citizenship. The 1st respondent placed no evidence before this court that establishes that the petitioner has indeed renounced his citizenship of Kenya as contemplated by Section 97(7) of the Constitution.

This will great!