Criminalising failure to declare dual citizenship unconstitutional

High Court has declared unconstitutional a section of law that criminalises failure to disclose to the government about dual citizenship status.

Justice Lawrence Mugambi said that Section 8 (4) of the Citizen and Immigration Act is unreasonable and unjustifiable for limiting the right to movement in a case filed by businessman Humphrey Kariuki.

The Judge said that it was unreasonable to create a punishment for any Kenyan who wants to become a citizen of another country.

“In the absence of any justification provided by the respondent, the court is unable to satisfy itself that the choice of heavy criminal sanction as an enforcement machinery for the legal duty to disclose dual citizenship was based on reasonable assessment of all the relevant facts,” said Justice Mugambi.

The section reads that failure to disclose dual citizenship is punishable with a fine of Sh5 million or imprisonment for a maximum term of three years.

However, Justice Mugambi observed that the Constitution allows Kenyans to acquire citizenship of another country without losing their citizenship.

He said that the government did not produce evidence to justify why it had fixed such high penalties for anyone in default.

Justice Mugambi observed that the rationale provided by the Attorney General was that the government intended to deter terrorism and money laundering was unsatisfactory.

The Judge noted that Section 8 (5) was clear that a Kenyan could not acquire dual citizenship to gain an unfair advantage or facilitate a crime.

The Directorate of Criminal Investigations (DCI), on February 13, 2019, summoned Kairuki to its headquarters along Kiambu Road, because he had not disclosed his dual citizenship status.

The businessman is a Kenyan by birth, however, he obtained citizenship in Cyprus through naturalisation in 2016.

He argued that at least 3 million Kenyans living in diaspora with dual citizenship would face similar problems with immigration.

The court heard that it was unfair to burden Kenyans with disclosure while the government did not require foreigners who acquired citizenship to disclose the same.

In reply, senior state counsel Dan Weshe argued that the contested law was clear and constitutional. He said that nationality is a serious issue that required punitive measures in cases of breach.

This is the second time that the businessman is winning against the government.

Kariuki became a familiar visitor of the corridors of justice when President Uhuru Kenyatta’s government went after him and his business, claiming that he was allegedly evading taxes.

In a separate case, he sued the DCI, arguing that the tax evasion claims were meant to harass him. Kariuki said that DCI had no power to investigate tax evasion.

In his application filed through lawyer Cecil Miller, he argued that the order freezing his companies' nine accounts was unlawful and meant to cripple their operations after the Director of Public Prosecution (DPP) failed to link its directors to the tax evasion claims.

He accused the DPP of acting in bad faith and abusing the court process, arguing that the decision to apply for Kiambu was to get a favourable magistrate to rule in their favour after a magistrate in Nairobi declined a similar application

Justice Luka Kimaru (now Court of Appeal Judge) agreed with him.

Justice Kimaru said that under the tax laws, it is only the Kenya Revenue Authority (KRA) that is mandated to investigate and prosecute cases of tax evasion or instruct the Asset Recovery Authority to institute recovery of taxes.

The Judge delivered the ruling in a case where Kariuki’s companies challenged an order obtained by DCI officers to investigate and freeze their accounts.

“It is evident that there was an element of jurisdictional overreach by the DCI on matters which are statutorily under the jurisdiction of KRA and the Asset Recovery Authority. In the performance of its duties, the DCI must respect the authority of other institutions,” he said.

Justice Kimaru also upheld an order directing the unfreezing of several bank accounts of Kariuki’s companies, noting that the order to freeze the bank accounts was obtained illegally since it was never sought in the application lodged by the DCI.

The court ruled that the billionaire's companies, Africa Spritis Limited and Wow Beverages Ltd, had proved the orders were illegal since the firms were never served in the first instance to present documents the investigators were looking for.

The Judge said police investigators only have the power to ask for orders to access account details but not to ask for orders to freeze an account.

“The Evidence Act grants a police officer investigating an offence power to access an account held in a bank for the purposes of investigations, but it does not grant the investigating officer power to apply for the seizure, freezing or the preservation of the contents in the account,” ruled Kimaru.

He said that it was clear the application the DCI sought before the magistrate’s court at Kiambu against Kariuki’s bank accounts was not to freeze the accounts and the magistrate made a mistake in issuing an order which was not sought.

Justice Kimaru said that in instances where the police want to investigate a person’s account, the holder of such account should be served at the appropriate time and notified of the reasons.

“In conducting investigations, the police must at all times respect the rights of those they are investigating. That right includes the right to enable those affected by the orders issued by the court to be heard,” he ruled.

He declared that it is wrong for investigators to claim they are acting to safeguard public interest when they are breaking the law.

The Judge said the police cannot be allowed to benefit from an outright illegality on claims that they are acting in the public interest.