Dual citizenship should be included in the referendum

By CHRIS WAMALWA

He came to the US soon after his undergraduate studies at a Kenyan University to pursue a Masters degree in Special Education. This was at the turn of the century. John Olusiula or Johnny, as he is commonly known to his close friends and peers in Pennsylvania came to America with the steadfast focus of a cruise missile – to quickly earn a Masters degree, work for one or two years and go back home to be a part of an emerging new Kenya. In less than 18-months, Johnny had his Masters degree and was on the way to ‘crowning’ his education with a PhD. His fortunes did not end there.

He met an American girl on campus, fell in love, got married, had two kids and applied for a Green Card. In his sixth year in the US, he had not only acquired a PhD but had also become a naturalised American citizen. Then he heard that Kenya had promulgated a new Constitution that provided for dual citizenship. “I was very excited because I wanted to go back home and contest for a Senate seat. But when I went to submit my papers, I was told I couldn’t even contest for a local councilors’ position. I was disappointed especially when I realised that the much-touted dual citizenship rights were not worth the paper they were written on,” he told me in a recent interview.

And this is what is at the centre of my argument today. As Kenyans debate whether to hold or not to hold a referendum in the near future, this debate should not only revolve around the counties, the Senate and political alliances. It is my humble submission that the views, needs and wishes of Kenyans living abroad should find a voice at these discussions. The two main areas that should be included in the referendum should it happen are the provisions on dual citizenship and voting rights of Kenyans living abroad.

Consider the smokescreen that is dual citizenship. Article 16 (Dual Citizenship) of the Constitution provides that “(A) citizen by birth does not lose citizenship by acquiring the citizenship of another country.” Sounds good, huh? However, Section 78(2) provides that a “State officer or a member of the defense forces shall not hold dual citizenship.” The only exceptions are judges and members of commissions. This provision has become an anathema to the Diaspora.

In a recent article, a Kenyan US based lawyer Henry Ongeri wrote that, Section 260 (Interpretation) of the Constitution provides a sweeping definition of “State office,” encompassing everything from President through the Attorney General, all the way to members of county assemblies and everything in between. As a final nail in this coffin, the Section further proclaims that “any office designated as a State Office by national legislation” shall be deemed so. Therefore, no holders of such offices shall be elected or appointed thereto if they hold dual citizenship.”

“Put plainly, the supreme law of the land forbids Kenyan citizens holding dual citizenship from playing any meaningful part in public service. In other words, any skills and knowledge acquired by Kenyans living abroad who hold other nationalities or citizenship are unwelcome in Kenya at all levels of government,” Mr Ongeri wrote.

By shutting out its citizens residing abroad from all echelons of public service, Kenya may be the ultimate loser.

“While one readily understands the constitutional prohibition for senior government officials such as the President and leaders of armed forces, there is no similar justification for holders of other public offices. It makes little sense to prohibit national and county governments from recruiting the best simply because they hold dual citizenship,” he writes.  Therefore, a referendum on the appropriate role and place of Kenyans living abroad is not only necessary but imperative. At a minimum, the definition of “state officer” needs to be narrowed to allow the Diaspora reasonable space to participate in national and county development.