Nairobi — A Kenyan immigration lawyer based in the United States has cautioned Kenyans who are re-applying for their Kenyan citizenship and hence becoming dual citizens, to tread carefully and ensure they do not break citizenship laws of either country.
Regina Njogu of Washington, DC has worked closely with the Task Force on Citizenship and Related Provisions and she said that there is provision under the Kenya Immigration and Citizenship Act of 2011 that imposes a fine of Sh5 million, three years imprisonment or both for Kenyans who acquire foreign citizenship and fail to report the acquisition of their foreign citizenship to Kenyan authorities in the prescribed manner.
The Kenya Immigration and Citizenship Act of 2011 makes provision for the acquisition, loss and regaining of citizenship, duties and rights of citizens; issuance of travel documents; entry, residence and exit out of Kenya; and for connected purposes.
Njogu said that the issue with the provision is that it's grossly unfair because the punishment doesn't fit the offense and it doesn't clearly define what reporting foreign citizenship to Kenyan authorities in a "prescribed manner" entails.
"The fine is too far-fetched and the punishment is way out of proportion with the offense," she emphasised.
"Unfortunately it's still there and it's still enforceable, and I think that Kenyans in the Diaspora are very unhappy about that provision," she added.
Even if Kenyans in the Diaspora manage to become dual citizens of Kenya and the country they are currently residing in, Njogu believes that there's still a great chance that many won't be able to partake in the upcoming elections despite their legal rights to participate.
"Kenyans in the Diaspora are waiting with bated breath because we tend to think at the moment that we might not even be able to vote at all," she revealed.
"The last statement by IEBC Chairman Isaac Hassan was that they are very confused and they don't know how to go about this Diaspora voting issue because of logistics," she explained.
Njogu noted that the reduction of funding for the IEBC by the Treasury from Sh35 billion to Sh17 billion may prevent Kenyans in the Diaspora from voting.
"Kenyans in the Diaspora are unequivocal about this issue. We must vote for the position of president because that's an issue of great importance in which all Kenyans should be involved," she emphasised.
"There has been no leg work whatsoever in terms of setting up voting stations and according to the IEBC, they are still adamant that if Kenyans in the Diaspora vote, they will vote at the embassies and consulates," she added.
According to Njogu, that idea has totally been rejected by Diaspora Kenyans because it doesn't make sense.
"In the US, we have three consulates in Los Angeles, New York and the embassy in Washington DC. Some Kenyans live over 10 to 12 hours away from these consulates so if they were to go and vote at the consulates, it would take two days to travel to vote and they would have to get accommodation for about two days so the costs would be astronomical," she explained.
"If that remains the position of the IEBC, then in my opinion it will be the same as a denial of the right to vote," she emphasised.
Founder and president of the Diaspora scholar association Kenya Scholars & Studies Association (KESSA) Dr. Kefa Otiso said that the choice of wording in the constitution may mean Kenyans in the Diaspora will not get to vote for the upcoming presidential elections.
"If you look at the Constitution, the clause that actually allows the Diaspora to vote simply states that the Electoral Commission is charged with the responsibility of gradually progressively making sure that the Diaspora votes. The devil is in that word progressive," he stated.
"For example, they've said this year the Diaspora can only vote for president, but because they have the word progressive or gradual in there, they can actually do the three main polling stations that they said initially, and then basically say next time around we'll do four or five," he explained.
Otiso pointed out that the document that actually stipulates the rules and regulations that are going to govern the Diaspora vote has not been published, so Kenyans abroad don't know what rules are going to be used to run this particular vote in the Diaspora and how it will be run.
"Until that document is put in the public domain for debate, many of the discussions we're having about the Diaspora vote will be pointless because the devil will be in the details," he stressed.
"It's important for the Kenyan Diaspora to realize that this word 'progressive' that is in the Constitution, can be taken to be very minimal by the IEBC because they don't really have to do much," he said.
Otisa said that all the government has to do is show that they are working towards fulfilling the mandates of the constitution.
"I think it's the responsibility of the Diaspora to also be involved in the lobbying, because rights are not things that are easily given," he stated.
"Just because you have an Electoral Commission that is responsible for running elections, doesn't necessarily mean that they'll go out of their way to make sure that everyone votes," he emphasised.
Njogu noted that Rwanda and South Sudan have managed to have their Diaspora vote in polling stations other than their consulates, and they used the International Organisation for Migration to help them set up polling stations in other areas.
Njogu said that she has offered to consult with the South Sudan Embassy in Washington, DC to help the IEBC model Diaspora voting so that it doesn't have to be only at the consulates.
"If South Sudan can do that, then why can't we do it? I think we can use them as a case study," she said.
"I have suggested to the Embassy in DC and talked to Isaac Hassan, offering to contact the South Sudan Embassy in DC to share their model on how to let the Diaspora vote in polling stations other than their consulates," she added.
Njogu acknowledged that many Kenyans in the Diaspora who lost their Kenyan citizenship after going through the US naturalisation process were scared to reapply for the Kenyan citizenship due to fear of losing their US citizenship.
"The US law is very clear; if one applies to become an American citizen and they are citizens of another country by birth, they are automatically allowed to retain the citizenship of their country of birth," she, however, assured.
She added that she has made recommendations to the Task Force on Immigration and Related Provisions and talked with the Kenya Department of Immigration to straighten out the confusion.
"They have streamlined the application process, so now it's more like an administrative registration process which took care of the problem of a possibility for those Kenyans to lose their foreign citizenships by reapplying for their Kenyan citizenship," she said.
Even if Kenyans in the Diaspora are able to vote and they are able to reapply for the Kenyan citizenship without losing their US one, Njogu still cautions Kenyans abroad to be very careful about becoming Dual Citizens.
"The dual citizens who live and work in the US cannot be taxed in the same manner as those Kenyans that live and work in Kenya because the Kenyans in the Diaspora pay taxes in the countries where they live," she noted.
"But I know for sure that they'll have to pay some amount of taxes, how much remains to be seen, but at least a small proportion because one of the responsibilities of a citizen of a country is to pay taxes," she explained.
She has compared this issue to the idea of a man having two wives.
"If you choose to have two wives, you have to maintain both, so if you choose to have two citizenships then you have to meet the responsibilities of both countries," she said.
Njogu also warned Kenyans seeking public office or other government positions on applying for Dual Citizenship.
"It's a catch 22 situation. Under US law, if you are a US citizen whether dual or non-dual, and you hold a public level position in a foreign government, then you lose your citizenship; and under Kenyan law it's the same thing," she stated.
"There are certain positions that touch so much on national security that you can't hold them unless you have sole citizenship of that country," she explained.
Despite the inability to work for government as a dual citizen, Njogu believes that the Diaspora should be better represented in the Kenyan government.
"My view is that they should be represented in Parliament and they should be viewed as a county, because Kenyans in the Diaspora continue to play a vital role in contributing to the development of the country in terms of investments, remittances and engagement in political process and other development process," she explained.
"At the moment, the only representation the Diaspora has is a Diaspora desk at the Ministry of Foreign Affairs and at the Prime Minister Office and these desks are manned by civil servants who aren't in contact with Diaspora Kenyans," she added.