Miguna Miguna: Judge proved I am a true Kenyan citizen - The Star

Justice L. Kimaru released a landmark decision on the issue of citizenship on January 22. That decision puts to rest the odious attacks on me by the PNU and other malicious detractors over the unfounded allegation that I lost my citizenship because I allegedly acquired Canadian citizenship and passport.

PNU busybodies went berserk and called on the Prime Minister to fire me purportedly for "working illegally". They went further and demanded that I be prosecuted for "lying" about my "status". They knew that I have never lost my citizenship. They also knew that I have never lied about my status; nor have I broken any laws. They know that I have never renounced my Kenyan citizenship. But they do not care. Their intention is to besmirch my reputation with dirt. 

Now the High Court has said: "Wait a minute; a Kenyan citizen by birth does not and cannot lose his/her citizenship merely by acquiring a foreign one or passport; he can only do that if or when he renounces his citizenship, and the person advancing the allegation of loss of citizenship has the burden of proof!"

That was my position all along. I kept telling the Kenyan media that they were wrong to clutch on straws; that the onus was on PNU and the idlers to prove their allegations by adducing credible evidence.

It all started with an election petition by Mahamud Muhumed Sirat against the MP for Wajir South, Abdulrahman Ali Hassan. Sirat had sought to nullify the election of Hassan. In response, Hassan made an application seeking to dismiss the petition with costs on the basis that Sirat was not a Kenyan citizen.

He argued that Sirat had voluntarily acquired the citizenship of Australia and therefore owed allegiance to the Government of Australia. Hassan further argued that the petitioner, being Australian, was not eligible or ought not to have been registered as a voter in Kenya and could not have qualified to be elected an MP in Kenya. Finally, Hassan argued that Sirat lacked legal and constitutional capacity to institute or to proceed with the petition.

In response Sirat argued that Hassan's application was frivolous, vexatious, incompetent and an abuse of the court process. He said the application was only meant to frustrate him from prosecuting the petition. Sirat asserted that he was a citizen by birth; both his parents being Kenyan. He indicated that he had valid Kenyan national identity card and passport, duly issued by the immigration department.

Finally, Sirat denied ever having renounced his Kenyan citizenship in preference for an Australian one. He produced copies of his birth certificate, national identity card and Kenyan passport as evidence of citizenship. Sirat also produced copies of his academic certificates to establish the schools he attended in Kenya.

In his judgment, Justice Kimaru said Sirat, "by virtue of his birth in Kenya, and the fact that both his parents are citizens of Kenya, is entitled (to) citizenship of Kenya." The judge said section 97(1), (3) and (7) of the Constitution of Kenya does not deprive a Kenyan citizen by birth of his citizenship upon acquiring nationality of another country.

He opined that sections 88, 90, 92, 93, 94, 95 and 97 of the Constitution only "prohibited persons of a particular category who are citizens of other countries at the time Kenya attained independence".

The judge ruled that those sections "not apply to citizens of Kenya who acquired citizenship by virtue of their birth from acquiring citizenship of another country after attaining 21 years of age."

And finally, Judge Kimaru threw a judicial left-hook clincher: "Even assuming that the petitioner had indeed acquired Australian citizenship, there is nothing in the constitution that specifically prohibits the petitioner from acquiring such citizenship while at the same time retaining his Kenyan citizenship provided that Australian law allows for its citizens to acquire and have dual nationality."

The only "exception is when a person specifically renounces his Kenyan citizenship and acquires citizenship of another country that does not allow dual citizenship".

Hassan produced no evidence that Sarit renounced his Kenyan citizenship. He also failed to prove that Australia does not accept dual citizenship. As such, the judge ruled that Sarit remains a Kenyan citizen.

The possession of a Kenyan national identity card and passport, the judge ruled, are prima facie evidence of citizenship. Justice Kimaru said the court "lacks jurisdiction to invalidate or declare invalid a national identity card" which has been duly issued.

With this milestone judgment, Kenyans have hope in the reorientation and reform of our judiciary.

The writer is Prime Minister's adviser on coalition affairs and joint secretary to the Permanent Committee on the Management of Grand Coalition Affairs. The opinions expressed here are his own.