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President Kenyatta’s nominee for Kenya’s High Commissioner to South Korea, Mwende Mwinzi has won the battle to retain her United States citizenship following Thursday’s High Court ruling.
Justice James Makau dismissed Mwende’s application filed at the Constitutional and Human Rights Division, ruling that it is premature.
The judge ruled that the appointment process was not complete and Mwende should have awaited the decision of the President before filing the case.
“The public interest in this matter in its current process and approval is not complete and should be allowed to be completed,” ruled Justice Makau.
At the same time, Justice 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 noted that even if the petitioner was 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."
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If the Laws exist in the Constitution, they should be followed. And if they are deemed to be unfair to any group of people, they should be changed, or deleted. The Law is supposed to be blind, but in Kenya, the Judges' eyes are very wide open. They first look at the litigants, and politics behind the case, and make their decision. Then they go to the Constitution to look for the chapters that support the decision that they have already made, instead of the other way around. I know of a Diaspora Returnee from the US who was barred from contesting for MP by the same Courts, because of this law, yet Mwinzi was allowed to contest. Unlike Mwinzi, the man, who was a pastor here and wanted to contest a seat at the Coast, was a 'Nobody', so the Law was 'blind', and was ruthlessly enforced.
We have to keep in mind that unlike Kenya, US Law does not allow dual citizenship. So we will be having an American as the Kenyan Ambassador to South Korea!
An American does not lose citizenship by assuming another country’s citizenship. Therefore, Mwende is an American citizen as well as a Kenyan citizen. She does qualify to hold any kind of job in both countries!
Nomad;stop hating.U.S. laws do not disallow dual citizenship.If the law do not outlaw,then it is legal especially to persons who never applied for it.
Investigate first. Do not just assume, without investigating the Laws of both Countries. US Citizenship is by birth, or Naturalization, and once acquired, it cannot be taken away. It can only be renounced. Kenyan Citizenship is by blood, and Naturalization. That means that if you are born in Kenya by American parents you are not a Kenyan citizen, but if you are born in the US by Kenyan parents, you are an American citizen by birth, and a Kenyan citizen by blood. The Law should apply to all. It should not be applied selectively. Otherwise it should be changed, or deleted, if it does not serve a useful purpose. NB. Even if you are born in Kenya, but your Parents are not Kenyans at the time of your birth, according to the Kenyan Constitution, you are not a Kenyan citizen.
Unsettled Nomad;you are wrong.Read the new constitution first.If an American gets baby in Nairobi,the kid is also a Kenyan,but it so happens these wazungu never follow up on citizenship of a third world country.The old constitution prov
Actually @ Unsettled Nomad is right. The child has to have been born of at least one Kenyan parent. The exception is if the child is presumably abandoned and under 8 years old and of unknown nationality then that child is presumed to be Kenyan. Chapter 3 section 14. Here's a link
http://www.klrc.go.ke/index.php/constitution-of-kenya/109-chapter-three…
She did not win anything you cannot purport to represent Kenyan interests having never lived in Kenya and proudly clinging on to your American citizenship declaring yourself Kenyan ambassador to South Korea because you know the president.Even your subordinates who you are tasked to watch over are more Kenyan than you.Kenyan citizenship is not situational or as a matter of convenience.There are so many proud youthful resident Kenyans who would love the opportunity for even half the pay.It is said you are married to a Nigerian peleka hiyo dual citizenship maneno kwa bwana yako.Kenyans must and can surely do better.They should table a bill all presidential nominees must be vetted and only be approved if suitable more qualified applicants cannot be found.
You are aware she spent the majority of her formative years in Ukambani, right? Yes she did live in the US and had a nice and well compensated job working for a Wall Street firm but this should only serve as a testament to her dedication that she left the diaspora and returned to Kenya. I have had the misfortune of dealing with the embassy in D.C run by non dual citizen Kenyans for 2 decades. They have been pitifully incompetent through the years. My niece dealt with the embassy in London during her sojourn there while furthering her education- she was not a fan. As a former diasporan, I think she would understand our issues and needs better and probably be more responsive.
Personally, I don't think that Mwinzi should renounce her American Citizenship, because of this Appointment. But I also don't believe that the rules should be bent to accommodate her...
Unsettled Nomad,how many times have American rules been bent?In 1990,an American citizen could not live overseas for more than a year after naturalization..U.S. citizens couldn't vote in foreign elections,until Supreme Court ruled otherwise.
The Appointing Authority should revoke this Appointment, to end this debate. You cannot represent people, when there is no consensus about your suitability for the job.
Your opinion and assumptions are all wrong although you seem to know everything! There is nothing wrong with Mwende serving as Kenyan ambassador in South Korea. She will do a good job for Kenya!
Thank you Lord! The gova has been treating the diaspora with a lot of contempt for so long. Even disallowing them to participate in the constitutionally provided for, right to vote yet newbies and poor countries like South Sudan do so for their diaspora. Congratulations Mwinzi! Not Mwizi.
The other day, the same MPigs were saying that diaspora only have 90 days to announce their dual citizenship. Some of those diaspora only learnt that such a law existed at that point targeting a Mr. Kariuki, yet the penalties were so stiff. Thank God someone also challenged that requirement. Bure kabisa!!