At no other time in our country has the question of citizenship by birth been this emotive. While I do not seek to give a legal opinion, I thought it worthwhile to apply my mind to this.
The big question today is whether Kenyan citizenship by birth can be lost or not. I think the answer is yes and no.
Yes under the constitution of Kenya 2010 a foundling below 8 years that was found in Kenya and thus acquired citizenship by birth under article 14(4). This citizenship can be lost under article 17(2). On the other hand, It is my view that under the current constitution, a Kenyan by birth ( Except foundlings under article 14(4)) CANNOT lose their citizenship.
However, it is important to state that under the repealed constitution section 97, a Kenyan citizen by birth lost such citizenship automatically upon acquisition of another country’s citizenship. Therefore any Kenyan that held citizenship of another country prior to the promulgation of the 2010 constitution ‘was not a Kenyan’. It is this misnomer that the Kenyan Constitution of 2010 cured vide article 14(5) by allowing all those that had ‘lost their citizenship’ to regain.
So what is this regaining and what does it entail?
Article 14(5) says that any Kenyan citizen by birth is entitled upon application to regain citizenship by birth. The Kenya Citizenship and Immigration Act 2011 section 10 and the regulations of 2012 sections 5-8 prescribes the manner in which such an application shall be made. The key word here is entitled. This therefore means that the Cabinet Secretary has no option but to grant the request and issue a regaining certificate to such an applicant.
That being the case, should one assume that after COK 2010 they automatically regained their citizenship without even applying in the prescribed manner? The answer to this was given by Lenaola J ( As he then was) in the case of Bashir Mohamed Jama Abdi vs the minister for Immigration and Registration of Persons and others ( Petition no.586 of 2012).
Lenaola J in paragraph 42 says “…It is obvious to me that whereas Abdi is entitled to apply to regain his citizenship, this Court cannot be the organ to grant it to him because it is not a matter of right. He should make the necessary application and if it is formally denied, then he can have recourse to the Court after that fact…”
In Paragraph 47 Lenaola J Says, “…there is no obligation on the part of the Kenyan Government “to accept” an application to regain citizenship because one must meet the lawful conditions set for so doing…”
It therefore my humble view that while those that had lost their citizenship under the repealed constitution section 97 are now entitled to regain the same under COK 2010, they are obligated to apply for the same in the prescribed manner. The government is duty bound to facilitate this process without unnecessary delays or bureaucracies.
Additionally, such a person must also declare their dual nationality within 3 months of regaining.