By Fredrick Walukwe
In compliance with Article 261(1) and the Fifth Schedule of the Constitution 2010, the National Assembly enacted the Kenya Citizenship and Immigration Act in August 2011. In addition to governing issues of citizenship under Article 18, the Act radically changed the legal regime governing immigration and related matters in the country. Unlike before, Kenya now has laws governing issuance of passports and other travel documents.
In its wisdom, Parliament simultaneously enacted the Kenya Citizens and Foreign Nationals Management Service Act to provide for the administration of the laws relating to citizenship, immigration, refugees and related issues. This Act came into force in October 2011 and remains so to date, save for some amendments effected by the Statute Law (Miscellaneous Amendments) Act, 2012 which had insignificant bearing on the object of the Act highlighted above.
While the Kenya Citizenship and Immigration Act is the substantive Act with regard to citizenship and immigration matters, the Kenya Citizens and Foreign Nationals Management Service Act is meant to enable the administration or enforcement of the former by providing for the appropriate institutional framework. The two may be considered birds of a feather.
In order to accomplish its object, the Kenya Citizenship and Foreign Nationals Management Service Act provides for the establishment of the Kenya Citizenship and Foreign Nationals Management Service as a body corporate in Section Three, with its functions provided for in Section Four. Section Five establishes the Board of the Service comprising 11 members, with the chair appointed by the President.
The key responsibilities of the Board provided for in section six include the appointment, training, discipline and removal of members of staff of the Service, and establishment of departments within the Service, as well as allocation of responsibilities to such departments. Section Seven allows the Board to establish Committees as it deems necessary for the efficient and expedient disposal of its. Expressly provided for are a Citizenship Advisory Committee and a Permits Determination Committee.
The Director-General, who is the Chief Executive Officer of the Service, is to be appointed by the Cabinet Secretary for a single term of six years upon recommendation of the Board after a competitive recruitment process (section 13). The Director-General may delegate powers or functions to a Director or any other member of staff of the Service appointed under Section 16.
Section 25 provides for transition of members of staff of the Departments comprising the Service from the ambit of the Public Service Commission to that of the Board, a process that includes vetting of such staff members by the Board to ensure they are fit and proper to serve in the Service.
Section 23 establishes the Kenya Citizenship and Immigration Service Appeals Tribunal with powers as those of a subordinate court, and whose chairperson is a person qualified to be appointed as a judge of the High Court. The Tribunal’s mandate is to determine appeals by persons aggrieved by decisions of the Board or Directors under the Act.
Several measures have been taken to operationalise the Kenya Citizenship and Foreign National Management Service Act since its coming to force in 2011. The Board of the Service was constituted in 2012. Other than an abortive attempt to recruit the Director-General and the Secretary to the Board in 2013, and the swearing in of the members of the Kenya Citizenship and Immigration Service Appeals Tribunal by former Chief Justice Dr Willy Mutunga thereafter, the Board has virtually remained moribund. One may easily be excused for imagining that the Board has been disbanded.
In 2014, Mwende Gatabaki was appointed as the Director-General, albeit in an acting capacity. No sooner had the ink in the signature to her instrument of (irregular) appointment dried than she too (like the Board) disappeared into oblivion. As the Chief Executive Officer of the Service, section 13(2) of the Act mandates the office holder to be responsible for the day-to-day operations of the Service, the management of the funds, property and affairs of the Service, and the administration, organisation and the control of the staff of the service. However, this is not the case as the respective departments comprising the Service (Immigration, National Registration Bureau, Civil Registration and Refugee Affairs) are still under the tight grip of their respective Directors as the situation was before 2011, with the Director-General having very minimal (if any) say on how they are managed.
At the Department of Immigration, it is business as usual with regard to the appointment of the Director. Seemingly, considerations other than the provisions of the law still determine who heads the vital docket. After 2013, it was expected that the person at the helm of the department would be recruited competitively in a transparent manner by the Board. However, in a political hocus-pocus, Jane Waikenda, Kenya’s current deputy ambassador to the Republic of South Africa landed the job in an acting capacity. She left the position in 2014 under unclear circumstances for her current diplomatic post.
Major-General (Rtd) Gordon Kihalangwa, the current Director of Immigration Services was soon thereafter appointed, again under circumstances devoid of transparency and competition, and in total disregard of the Kenya Citizenship and Foreign Nationals Management Service Act, as well as the values and principles of public service espoused by Article 232 of the Constitution.
The legal principle of the rule of law, also known as normocracy, which is one of our key national values and principles of governance under Article 10 of the Constitution, holds that law should govern a nation, as opposed to arbitrary decisions by individual government officials. It implies that every citizen is subject to the law, including lawmakers themselves.
Rule of law
It is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights standards.
All must obey laws once enacted. Doing otherwise negates the rule of law principle. If there are any reservations with any sections of the law, then the proper measure is not to disregard it but to either impugn it in court or have it changed.
It is in the best interest of Kenyans (and even non-citizens) that the Kenya Citizens and Foreign Nationals Management Service Act be fully operationalised to reengineer the provision of citizenship, immigration and related services. However, there seems to be a deliberate dragging of feet with regard to the implementation of this legislation. If this is not possible four years after coming into force of the Act, then the noble thing to do is to amend the law accordingly, or to repeal it altogether.