Citizenship, as an idea, has two main aspects. One is a rather technical, legal, one, conveyed also by the word ‘nationality’. The other is a broad, active concept, of the person as a member of a community, involved with that community, participating in its decision making. The Constitution reflects both ideas, though it uses the word ‘citizen’ only in the technical sense.

The Constitution sees the people as positively involved in the life of the nation, with rights and responsibilities; the provisions on public participation particularly show this. And “Every person has an obligation to respect, uphold and defend this Constitution” says Article 3( 1 ) — not every citizen.

Until the Parliamentary Select Committee took its knife to the draft early in 2010, Constitution drafts included an article, on the duties of citizens, that was more concerned with the good citizen concept than the legal citizen concept. It included duties not to be corrupt, to pay taxes, and to protect the environment, as well as to vote. Most of these ideas now appear in the Kenya Citizenship and Immigration Act, 2011.

It is true that citizens in the sense of nationals have certain specific rights: Only they can vote and join parties, only they have the right to obtain access to publicly held information, to enter, and remain in, Kenya, and not be deported, only they can be the absolute owner of land or hold a lease longer than 99 years. These, in the Bill of Rights, can only be limited—even by Parliament—by law that is necessary and reasonable. And the Bill of Rights obliges everyone, not citizens only, to respect the rights. No-one, citizen or not, may discriminate against others, or violate the right of others (citizens or not).

GENDER

Two issues dominated the citizenship debate on the new Constitution—gender and dual citizenship.

The old Constitution did provide that anyone born in Kenya, after Independence, was a citizen if either parent was a Kenyan citizen. But if born outside the country, they only became a citizen if their father was a citizen.

A foreign woman married to a Kenyan citizen had a right to be registered as a citizen. A foreign man married to a Kenyan woman was in no better position to obtain citizenship than any other foreigner.

Women, with considerable male support, pushed for equal treatment, and the 2010 Constitution removes these gender-based inequities. Interestingly, the drafters increased the period for a spouse to become a citizen to seven years (before 2010, wives of citizens could apply immediately).

DUAL NATIONALITY

Under the old Constitution, no one could be both a Kenyan citizen and citizen of another country. The only exception was that children who were citizens of Kenya and another country (perhaps because one parent was non-Kenyan and the law of each parent passed their citizenship to their children) did not have to decide which citizenship to retain until they reached adulthood. Such a person who reached the age of 23 without having given up the other citizenship automatically ceased to be a Kenyan citizen.

Again, a Kenyan citizen, who by a voluntary act took another citizenship, automatically lost the Kenyan citizenship (automatically becoming a foreign national by marrying a foreigner did not have this result, but that would be very unusual). The most obvious voluntary act would be to apply to become a citizen of that other country. No act of renouncing Kenyan citizenship was required.

There was much, vigorous, discussion about dual nationality in the constitution-making processes. Pastoralist communities had found themselves in difficult positions because they and their herds had crossed modern national boundaries for centuries. People with relatives living abroad, or married to foreigners were sympathetic to the idea that a person could hold more than one citizenship, and be committed to both countries. Others were suspicious, unable to imagine that someone who held another citizenship could also be a whole-hearted Kenyan.

The Parliamentary Select Committee introduced a rather discriminatory provision into the new Constitution: Kenyan citizens by birth may take another nationality and retain Kenyan, but not citizens by registration. Citizens by registration would include a person who was adopted by Kenyan parents but had previously held another nationality, a person who married a Kenyan, or who lived in the country for many years, and applied to be a Kenyan.

The old Constitution remained law until August 27, 2010, when the new Constitution was held aloft in Uhuru Park and became our supreme law.

No-one’s citizenship changed at the moment the new Constitution became law. But people who were citizens by birth but lost their citizenship ‘because’ they acquired another nationality have a right to get back their Kenyan citizenship — but must apply.

DIFFERENCES BETWEEN CITIZEN BY BIRTH, CITIZEN BY REGISTRATION AND DUAL CITIZEN

The main rights available only for citizens — which foreigners, even if in the country legally, cannot enjoy — were mentioned earlier. A citizen also has a right to a passport (and ID card). These rights do not depend on whether you are a citizen by birth or in some other way (registration). An odd point that may have to be decided by the courts is that the rights to citizenship documents are not in the Bill of Rights in the Constitution, but in the citizenship Chapter. Most rights in the Bill of Rights can be limited only by law, and ‘only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. Arguably, a right in another Chapter cannot be limited at all.

Certain important jobs are open only to Kenyan citizens. You cannot be a Cabinet Secretary, MP, MCA or governor, or a principal secretary, Attorney General, DPP or Auditor General without being a citizen. In fact, you cannot be any of these and be a dual citizen — you must be only a Kenyan. The same is true of any member of the defence forces. But a judge or magistrate, or member of a commission such as the IEBC, CRA or a human rights commission, may be a foreigner.

Generally, it does not matter for these purposes whether you are a citizen by birth or registration. But, presumably to ensure long-term commitment to the country, to hold an elected position you must have been a citizen for 10 years immediately before the election. To be President, however, one must be citizen by birth (not only be a citizen but having had a citizen parent).

Provisions such as this are common: You may have heard of Australian MPs realising they had a second nationality and losing eligibility to be MPs. There is even a Kenyan Australian Senator — she must have ceased to be a Kenyan citizen when she became Australian. A number of countries have foreign judges, including various South Pacific countries and Hong Kong.

LOSING CITIZENSHIP

Under the new Constitution, unlike the old, a citizen by birth can only lose that citizenship by a voluntary renunciation — not, for example, by taking citizenship of a foreign country.

Citizens by registration — who applied to be Kenyan — may lose citizenship in a few situations. The first is that the person lied about something important to get that citizenship. Secondly, if they commit a fairly serious offence within five years after becoming a citizen, or a very serious offence (like treason or some other offence, for which they could be sentenced to seven years in prison, or worse) at any time.

FINAL THOUGHT

The details of the Constitution have to be filled in by law and we have the Citizenship and Immigration Act. Suspicion of dual nationals seems to linger. The Act says that one who ‘uses the dual citizenship to gain unfair advantage … commits an offence’. This is a puzzling provision: What might dual citizens do that would give them an ‘unfair’ advantage? This seems to defy the principle that the law that creates criminal offences must be clear.

By JILL COTTRELL GHAI