The unchartered path of dual citizenship

By Dennis Ndiritu

In early 2019, Mwende Mwinzi, a citizen of both Kenya and the United States, was nominated by President Uhuru Kenyatta for appointment as Kenya’s ambassador to South Korea. Mwinzi went through the routine vetting process administered by the Defence and Foreign Relations Committee, where legislators questioned her suitability for the position raising concern over the authenticity of her Kenyanness. In the end, they recommended her for appointment on condition that she renounces her American citizenship. 

This prompted Mwinzi to challenge the matter in court via Constitutional Petition Number 367 of 2019 ‘Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs & 2 others [2019] eKLR’. Mwinzi, a US citizen by birth contended that, pursuant to Article 78 as read with Article 260 of the Constitution of Kenya 2010 and Section 31(2) of the Leadership and Integrity Act, 2012, the requirement of law relating to dual citizenship are expressly restricted to state officers. Accordingly, high commissioners were not state officers, and thus the requirements under Article 78 of the Constitution are not applicable to the her appointment as an Ambassador. She further argued that her US citizenship, having been acquired by birth, cannot be renounced.

The court adopted a rational interpretation of the Constitution to find that where appointment had been done pursuant to the stipulated procedures (the appointment of ambassadors is a matter entirely within the exclusive jurisdiction of Legislature and the Executive) appointment could not be within the jurisdiction of courts. The court in essence prevented a naughty approach by Mwinzi to have her conditional appointment rescinded by the courts even after the vetting by parliament.

The court however employed a literal rule interpretation excluding ambassadors from the realm of state officers. Under the literal rule, the legal text is conferred its natural and ordinary meaning. This approach limits the court to interpret whether an ambassador is a state officer to strictly those officers provided under Article 260. This approach is limited in various respects including advancing manifest absurdities. This is mainly because the literal rule does not interrogate the drafters purpose or intention in the legal text. This has thus forced progressive courts to turn their interpretation towards the purposive approach to interpretation of the law. Consequently, the purposive approach towards Article 260 in the present instance should have been to avoid potential conflict of interest under Article75 of the Constitution of Kenya 2010. 

A diplomat, being a representative of the interests of a sending state, must be devoid of interests of any other state and be independent and in a position to assert the positions of the sending state at all times without compromise. Further, Article 78 of the Constitution of Kenya 2010 bars persons who hold dual citizenship from occupying state offices or being members of the defence forces of Kenya. This is seen as being aimed at avoiding the potential conflict of interest that may arise which would affect the well-being of the country, including its security. Though there is no specific legislation establishing the office of an Ambassador under Article 260 of the Constitution of Kenya 2010, Article 80(c) of the Constitution of Kenya 2010 gives Parliament the power to operationalise Chapter Six of the Constitution through the enactment of the Leadership and Integrity Act, binding all public officers as if they were state officers.

This implied view of dual citizens and diaspora citizens as second rate Kenyans points to an underlying problem that needs to be brought on the table for proper discussion.

That Mwinzi is a US citizen first, by birth, may impliedly mean that she owes her first allegiance to the United States. Consequently I am persuaded that just as was laid out in ‘Baseline Architects Limited & 2 Others v National Hospital Insurance Fund Board Management (2008) eKLR’,thereare circumstances such as the one at hand in which the public interest must be dominantover the interest of a private individual especially since the unique office involves representing the international and national interests of Kenya. Accordingly so, it is a correct position arrived at by the courts thatthe individual/private interest of the Mwinzi veiledas a violation of her rights is narrow and subservient to the wider public interests of protecting the constitutional mandate of theExecutive and the National Assembly in public appointments. The constitution has provided parliament with vetting powers and thus pursuant to ‘Pevans East Africa Limited & Anor vs. Chairman, Betting Control & Licensing Board & 7 Others (2018) eKLR’must give it sufficient leeway to discharge its mandate. 

This tussle over the eligibility Mwinzi raises questions over the position of dual-citizenship in Kenya, the capacity of dual citizens to be loyal to Kenya while holding another country’s citizenship and the repercussions of this on the ability to hold public office. It is a fact that such concerns cannot be completely be wished away. 

Proponents of such appointments have argued that as long as Mwinzi’s appointment was fully compliant with the Kenyan laws, there is nothing to worry about. Further, it is also global standard procedure for countries to appoint dual citizens as high-level diplomats such as former Secretary of State of the United States Madeleine Albright who is Czech-American. It is their assertion that propagating such a view is self-defeating and parochial, rousing unnecessary negative fear towards dual citizenships and eventually shunning their role in nation-building. 

This implied view of dual citizens and diaspora citizens as second rate Kenyans through roadblocks in casting their ballots in elections and appointment to government positions points to an underlying problem that needs to be urgently discussed. 

While we may disagree with the finding that ambassadors are not state officers, I agree that Mwinzi should not be forced to relinquish her citizenship by birth. However, it will be interesting to see how the government will navigate these turbulent waters. This will definitely have consequences going forward.