16 February 2018

Kenya: Constitutional Provisions on Citizenship During Transitions Pose Challenges

Photo: Capital FM
Miguna Miguna (in white hat).
opinion

The Miguna Miguna deportation incident has undoubtedly brought to the fore the need to reflect on the citizenship regime introduced by the 2010 constitution and the enabling regulatory framework embodied in the Kenya Citizenship and Immigration Act (2011).

Without transgressing into the contested questions before the courts, this article sheds light on the broader theoretical questions on citizenship and nationality in Kenya.

Citizenship is the legal bond, the existence of which links an individual to her State. Legal citizenship grants status to the bearer, including right of re-entry, and is often a prized possession as signified by the quest by immigrants from Africa and other less developed contexts for America's diversity visa, the gateway to American citizenship, and presumably the American dream. So central is the right to citizenship that the US Supreme Court in Luria v U.S. (1913) defined citizenship as the "right to have rights"

Two broad principles underpin citizenship regulations across different jurisdictions: birth and ancestry. Some States such as the United States have adopted the role of place of birth (jus soli) as the basis for conferring citizenship. This rule recognizes the immateriality of a parent's citizenship for purposes of determining that of a child.

It proceeds to grant to the child automatic citizenship based on where such child is born. No wonder, President Obama's place of birth, Hawaii, which only became the 50th state of the Union in 1959, a few years before Obama's birth, became controversial when some conservative politicians questioned Obama's eligibility for US presidency (which recognizes natural born citizens only as eligible to contest the presidency).

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