Mwende Mwinzi wins as court rules she can’t be forced to renounce American citizenship
Kenyans who have acquired citizenship by birth in other countries won big on Thursday after a judge ruled that they cannot be forced to renounce the same so as to take up public offices.
Justice Aaron Makau further ruled that an ambassador is not a state officer but a public officer. State officers are barred by the constitution from holding dual citizenship.
While ruling in a petition filed by Mwende Mwinzi, a nominee for ambassadorial position to Seoul, South Korea, Justice Makau said the nominee falls within the category of Article 78(3)(b), which exempts persons who has been made citizens of another country by operation of that country’s law, without the ability to opt out.
According to the judge, the only persons who can be asked to renounce citizenship, are the ones who can opt out. Justice Makau added that he has no hesitation agreeing that citizenship is an inalienable right, which cannot be taken away.
The judge said Ms Mwinzi cannot opt out of a birthright, because she did not participate in the decision to be born in the USA.
The judge, dismissed the petition, saying the appointment is not an event but a process and the move to file the petition before the process was completed, was premature. “It is in public interest that the process should be allowed to be completed,” he said.
FILED THE PETITION
Ms Mwinzi filed the petition seeking among other orders, a declaration that once she has been appointed by the president and vetted by Parliament, her appointment was complete and she is entitled to posting to South Korea as an ambassador.
It was also her argument that she falls within the provision of Article 78(3)(b) and therefore eligible for appointment to a state office in the country.
President Kenyatta nominated her to the position on May 2, and Parliament invited her for vetting before the Departmental Committee on Defence and Foreign Relations. The Committee recommended her for appointment on condition that she renounces her American citizenship.
She said she was born in Milwaukee- USA and by virtue of American laws became an American citizen by birth. She also said she schooled in Mombasa and Kitui and went to Kenya High and later Kyeni Girls. In the last general election, she contested the Mwingi Central Parliamentary seat after being cleared by the electoral body.
She asked the court, through her lawyer Prof Tom Ojienda, to interpret Article 78 of the constitution on Citizenship and Leadership and Article 260 of the constitution of state officers.
Prof Ojienda argued that ambassadors are not state officers and the condition by Parliament for her to renounce her American citizenship, before taking up the job, is unfounded in law.
He said the decision by Parliament for her to renounce her citizenship is tantamount to a deliberate violation of their duty to abide by the national values and principles of non-discrimination, equality and equity while making such public policy decisions.
Article 78 (2) of the Constitution provides that a State officer or a member of the defence forces shall not hold dual citizenship. Envoys are public officers and although the constitution does not expressly categorize them as State Officers, clause 52 of the Leadership and Integrity Act says public officers are also State Officers.
Clause 31 (2) of the Leadership and Integrity Act goes on to say that a person who holds dual citizenship shall, upon election or appointment to a state office, not take office before officially renouncing their other citizenship in accordance with the provisions of the Kenya Citizenship and Immigration Act of 2011.