Whether people should be allowed to be a Kenyan and a something else as well (Ugandan, American, British or Somali, etc), or allowed to hold a public office and also be a foreigner, were tough issues and much discussed in the Constitution of Kenya Review Commission, and at Bomas.

It perhaps depended on the personal experience of people. Some thought of communities, including pastoral, whose members straddle Kenya’s borders – the Maasai or the Luo, for example. Others thought of friends and relatives perhaps who had moved to live abroad and wanted to become citizens of the country where they were living but to remain Kenyan, too.

Githu Muigai, later Attorney General, told his CKRC colleagues that, “We understood Kenyans to be saying that we have in many ways discouraged Kenyans living in other countries and those countries allowed dual nationalities to remain citizens of Kenya, and in a way discouraged them participating in the economic, social and political life of their country.” Not discouraging Kenyans overseas from sending money back home was also mentioned.

Other people tended to be more distrustful of “foreigners”. They seemed to leap from that idea to “terrorist”. Maybe they thought that people who wanted to live overseas were somehow traitors to Kenya. Some thought that “people must decide where their loyalties lay.”

Public office and citizenship by birth

The Constitution of the United States says that a presidential candidate must be a “natural born citizen” – which is taken to mean that the person must not have become a citizen by naturalisation. This notion (that became so important for President Obama) seems to have taken a strange hold over lawmakers in other countries. The CKRC draft constitution applied this to the President – even though that person would not have been head of government, because the recommended system was a parliamentary one where the head of government would have been a prime minister. The Bomas draft applied it to MPs also – and thus to the prime minister and ministers.

Under the Constitution as it is, the rule about the President remains, but MPs can be people not born as Kenyans, but they must have been citizens for at least 10 years.

Dual citizens and public office

Having decided that generally it should be possible to be both a Kenyan and hold another nationality, constitution makers then disapplied it to various offices.

The concept of a “state officer” to mean the most senior public positions – like elected politicians, judges, and commissioners – was in draft constitutions from Bomas. But it was in the Committee of Expert’s second draft in early 2010 that there was a ban on most of them holding another citizenship. They did not apply this to judges, members of commissions, principal secretaries or members of county assemblies. The last two groups lost this privilege when the draft was amended by the Parliamentary Select Committee.

Excluding members of commissions is connected with developments after the violence of 2007-8. The various bodies appointed to look into what happened then, and to help chart the national way ahead, included foreigners – not Kenyans at all. This was true of the CoE itself, the Waki Commission, the Kreigler Commission and the Truth, Justice and Reconciliation Commission. And after the Constitution was adopted, the vetting board for judges included foreigners. There was a feeling that non-Kenyans might be able to contribute a detached and objective view to sorting out the highly divisive issues of that time.

As for judges, it is not at all uncommon to have foreign judges. Kenya has had them in the past, and even today foreign judges sit on courts in the Pacific island states and in Hong Kong. Cases from Kenya can go to the East African Court of Justice and, in a different way, to the African Court of Human and People’s Rights, or the International Court of Justice. Judges, it is assumed, are guided by the law, and less influenced by political considerations.

What is the logic of excluding dual citizens?

Partly there is that distrust of people with foreign passports expressed during the constitution-making process. You might ask why it should not be left to the voters – if they are informed that a person holds another nationality, but still choose to elect them, should they be prevented from doing so?

But perhaps in a country with deep divisions there is a sense that some communities may not be wholeheartedly Kenyan and would be happy to elect MPs whose loyalty is also elsewhere.

Perhaps fear of foreign interference in national affairs, including elections, is not totally irrational – Russia and China are countries not above this, and are no doubt not alone. But, realistically you do not have to have foreign nationality to be disloyal. Nor is nationalism the guiding principle for most people’s performance of their duties in the modern world.

Some countries have no problem with dual citizen senior officials. Boris Johnson, now British Prime Minister, sat as an MP and served as Mayor of London while holding US citizenship. He gave it up in 2016 (as did 5,410 other people) – probably to avoid paying US taxes. No law would have prevented his being Prime Minister while still an American.

How about ambassadors?

Under our Constitution ambassadors are not defined as “state officers”. It is not entirely clear why. Probably because they are rarely mentioned in constitutions. But to exclude them seems to defy common sense. Surely they should be subject to Chapter Six – on Leadership and Integrity – and have their salaries fixed by the Salaries and Remuneration Commission?

As for being dual nationals – they would seem to be the most obvious class of public servant whose loyalty must be crystal clear. Their role is to be Kenya’s face to the world. More than most they are exposed to the interests, perhaps conflicting, of other countries. They often serve in a specific country, or perhaps several. But they may also be accredited to an international organisation, at which the interests of all other countries are at stake. If MPs, Cabinet Secretaries and Governors are not trusted to put Kenya’s interests first, why should ambassadors be?

But the Constitution did not make them State officers – as it did make MPs, Governors, and Cabinet Secretaries. It would take a constitutional amendment to change this – either to make them no longer state officers, or remove the ban on dual citizenship.

However, in Chapter Six Parliament is directed to pass law applying Chapter Six itself to public officers. The Constitution expects that Chapter Six is applied “with necessary modification”. What might that mean? Perhaps not applying the “Kenyan citizenship and only Kenyan” rule to every public servant.

But Parliament went ahead to apply all of Chapter Six, with no modifications, to all public servants – which would include ambassadors. This may create problems. It is not uncommon for foreigners to be appointed to civil service posts in many countries. Even the Kenyan draft Public Service Commission Regulations, prepared in 2018, say “a public body may employ noncitizens with the approval of the Commission”. This would go against the Leadership and Integrity Act. Maybe no-one has noticed this?

You will probably know about Ms Mwende Mwinzi – who is challenging in court Parliament’s decision not to approve her appointment as ambassador unless she renounces US citizenship.

The courts will decide on her case. Can she argue successfully that the Leadership and Integrity Act is unconstitutional? (Arguing it is unwise is not enough, because the courts will not just hold a law invalid on this basis.) Maybe. The Act allowed Parliament to reject her appointment because she was a US citizen – an example of discrimination, prohibited by Article 27 of the Constitution. To be valid to limit a right (like not being discriminated against) a law must say that it is intended to limit the right. This Act does not. It must also be reasonable. The court is in for an interesting time.

By Jill Cottrell Ghai and Yash Pal Ghai

This article was first published by the Star Newspaper on 12th October 2019.