Kenyans in the diaspora have welcomed last week’s High Court ruling that allowed Kenyan-American Mwende Mwinzi to take up an ambassadorial post without renouncing her US citizenship.
On Thursday, Justice James Makau ruled that an ambassador is not a State officer, but a public officer and hence is not required by law to renounce his or her citizenship.
He further noted that there is no law establishing the office of ambassador as a state office though the Legislature has powers to enact legislation to that effect.
Justice Makau also ruled that even if the petitioner [Mwende] was appointed to a state officer, she is protected under Article 78 of the Constitution.
“No one chooses [his or her] place of birth or parents,” said the judge, adding that being an American citizen by birth, she cannot opt-out.
“Article 78(3) b of the Constitution protects her,” said Justice Makau, adding that “citizenship by birth is an inalienable right which cannot be taken away.”
In her application, Mwende wanted the court to determine whether MPs can grant conditional approval of a nominee and also whether the petitioner has any proprietary right to the office of ambassador.
In June, MPs approved her nomination to the position but on condition that she renounces her US citizenship in line with the Constitution.
She wanted the court to stop MPs from forcing her to relinquish her American citizenship before she takes up the job.
“My US citizenship was acquired by birth and as such, my citizenship or the process of opting in was a consequence of circumstances out of my control,” she said in an affidavit.
“I did not participate in the decision to be born in the US and I cannot opt-out of that decision. Article 78(3) (b) would only be applicable to people who opted in by applying for citizenship and renunciation would be the process of opting out."
Dr. Odhiambo Gaya, a dual citizen of Kenya and Finland hailed the ruling saying it will open the way for Kenyans who hold dual citizenship.
“Most of my children are born here in Finland, and have been disadvantaged for long due to misinterpretation of the 2010 Katiba, and we are eternally grateful for what Mwende Mwinzi did. She speaks for millions,” he told a local news outlet.
Julius Rotich, a Kenyan engineer living in Sydney, Australia said the ruling on Ms. Mwende should lay the ground for review of the sections of the Constitution that limit the role of dual citizenship holders.
“Look at Somalia, Look at Nigeria – where the Foreign Affairs Minister and Finance Minister was a dual citizen…….there is something wrong if we keep limiting Dual Citizens in even holding the Presidency….what is needed are strong institutions that stop any person from misusing power,” he said.
He added: “As the political class is pushing for changes in the Katiba, we will also move to ensure that we make changes that have been ignited by this Mwende Mwinzi court case”
President Kenyatta nominated Mwende as Kenya’s High Commissioner to South Korea on May 2nd.