MPs Turn to Appeals Court in Bid to Force Mwende Mwinzi Renounce US Citizenship

The National Assembly is set to appeal a ruling by the High Court that declared that President Kenyatta’s nominee for Kenya’s High Commissioner to Seoul, South Korea cannot be forced to renounce her American citizenship.

In a ruling dated November 14th, Justice James Makau noted that an ambassador is not a State officer, but a public officer and hence is not required by law to relinquish one of his or her citizenship.

Justice Makau also ruled that even if the petitioner [Mwende] had been appointed to a State office, she is protected under Article 78 of the Constitution, adding that being an American citizen by birth, she cannot opt-out.

“No one chooses [his or her] place of birth or parents,” said Justice Makau who was also of the opinion that a dual citizen holder should not be a diplomat over national security concerns. 

“…the risk of dual citizenship may jeopardize the national interest of the Republic of Kenya against the interest of the foreign state,” said Justice Makau.

The National Assembly’s appeal is based on what it terms as ambiguity in Justice Makau’s decision and wants the Appeals Court to pronounce itself on the matter. Mwende, who was born in the US, is a dual citizen of Kenya and America.

“Whereas the judge finds that the petitioner is protected by the law under Article 78(3) (b) of the Constitution, on the other hand, he finds that a person with dual nationality ought not to be a diplomat in order to safeguard the interests of the sending state, including national security,” a brief prepared by Parliament’s legal department to Speaker Justin Muturi states.

“To this end, it may be necessary for the National Assembly to file an appeal on the finding of the High Court that the petitioner is protected from the requirement to renounce her US citizenship in order to hold the position which she was nominated for.”

In June, MPs approved Mwende's nomination to the position but on condition that she renounces her US citizenship in line with the Constitution. MPs cited section 31(1) of the Leadership and Integrity Act, which bars persons with dual citizenship from holding State offices unless they renounce one.