By: Miguna Miguna – Published: Saturday February 13th, 2010
[The writer is Prime Minister’s Adviser, Coalition Affairs and Joint Secretary to the Permanent Committee on the Management of Grand Coalition Affairs. The opinions expressed here are his own.]
Justice L. Kimaru of the High Court of Kenya released a landmark decision on the issue of citizenship on 22 January 2010. That decision puts to rest the odious attacks on me by the Party of National Unity (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 of Kenya (PM) to fire me purportedly for “working illegally.” They went further and demanded that I be prosecuted for “lying” ( I don’t know where, when and how) about my “status.” PNU and other malicious miscreants 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 and remain a proud and patriotic son of the soil. But they didn’t care. Their intention was to besmirch my reputation. They wanted me to wrestle with them in the mud they had created so that they could smear my reputation with cow dung.
Full-page paid advertisements were published by a section of the print media (Daily Nation and The People) too eager to please their puppet masters. Electronic media was used to scandalize me during prime time news for more than one week. A few misguided individuals reeking with green envy and rancid jealousy went to lunch with the false stories. They perpetuated the falsehoods through fake “letters to the editors,” “opinions,” “cartoons”, “news briefs”, and “news analysis” (Standard; The People; Daily Nation; Sunday Express; The Star; and Weekly Citizen)) of the cow dung they had thrown while pretending to respond to articles I had published in the Star newspaper on important national issues affecting Kenyans. Those were issues of corruption, abuse of power, good governance, constitutional change and an end to impunity.
Other idlers on the Internet took off with the libel and have continued to defame me with the hope that they might distract me from persistently pursuing social-justice issues and performing my functions at the PM’s Office. Some confused, inept, malcontent and clearly ignorant MPs from Nyanza Province joined the fray without knowing or understanding what the issues were. Without exception, the idlers never bothered to respond directly to the issues in my articles. None of them challenged the factual accuracy in my articles. Unfortunately for the malicious, the libelous, the envious and the jealous busy-bodies, Miguna has remained a solid rock, cascading on course (with other committed compatriots) towards the total liberation of Kenya. No amount of malicious filth will prevent that eventuality.
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 lose 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 is now time PNU, the gullible and mendacious Kenyan media and all those miscreants to publicly apologize to me.
This is sweet redemption to me and the ODM fraternity, coming on the heels of another major High Court ruling at Mombasa: the one that relegated the former MP for Matuga, the Lingala bellowing Ali Mwakwere, to political oblivion. I relish the adage about the “wheels of justice grinding slowly;” very true indeed. It all started with an election petition by Mahamud Muhumed Sirat against the MP for Wajir South, Abdulrahman Ali Hassan. Mr. Sirat had sought to nullify the election of Mr. Hassan over allegations of electoral malpractices. Rather than deal squarely with the petition on its merits, Mr. Hassan made an application seeking to have the election petition dismissed with costs on the basis that Mr. Sirat was not a Kenyan citizen. He argued that Mr. Sirat had voluntarily acquired the citizenship of Australia and therefore owed allegiance to the government of Australia. Mr. 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, Mr. Hassan argued that Sirat lacked legal and constitutional capacity to institute or to proceed with the petition.
Along the way, Mr. Hassan recruited gullible immigration officials and an ODM minister to boot who managed to howl Sirat from the sanctity of his home into the State dungeons on mere allegations of a political opponent. Forget about the presumption of innocence. Mr. Hassan vigorously argued that Sirat had no locus standi to file and present an election petition; that even the Court had no jurisdiction to hear the petition. Sirat was supposed to be detained and deported without being heard! In response Sirat argued that Hassan’s application was frivolous, vexatious, incompetent and an abuse of the court process. He stated that the application was only meant to frustrate him from prosecuting the petition. Sirat also asserted that he was a citizen by birth, both his parents being Kenyan. Further, 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, Kimaru J. stated that 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 stated that 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”. Those sections do “not apply to citizens of Kenya who acquired citizenship by virtue of their birth from acquiring citizenship of another country after attaining twenty-one years of age.”
And finally, Judge Kimaru stated what amounts to a judicial left hook clincher: “[E]ven 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. Since Mr. Hassan produced no evidence that Sarit renounced his Kenyan citizenship – and that even if he was able to do that, he would still have to prove that Australia did not accept dual citizenship – the Court concluded that Sarit remains a Kenyan citizen. The judge also ruled that copies of a foreign passport are mere pieces of paper that could have been generated or downloaded in any cyber café. The possession of a Kenyan national identity card and passport, the judge ruled, are prima facie evidence of citizenship. The Court refused Hassan’s invitation to look behind or beyond the national identity card that the petitioner possesses as prima facie evidence of his Kenyan citizenship. Kimaru J. stated that the Court “lacks jurisdiction to invalidate or declare invalid a national identity card”, which have been duly issued.
Did I hear everyone say “Amen?” With this milestone judgment, Kenyans have hope in the reorientation and reform of our judiciary. By Miguna Miguna
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