Suba South MP Caroli Omondi is sponsoring a Bill to amend the Act on citizenship (the Act). The media say that the idea is to introduce into Kenyan law a possibility that applies in Ghana, that is, to assist people who can prove they have Kenyan ancestry to become citizens. 

Ghanaian law allows a person, described as a “historic diasporan”, to apply for citizenship, but they must show that they have lived in Ghana for at least two years, have police clearance from both their home country and Ghana, and have strong ties to Ghana. And – they must show “DNA proof of Ghanaian descent”. The Accra government had recently announced how people may apply this year (indeed, this week), but prospective beneficiaries have complained of the complexity and cost ($2,416 or KSh312,000 for those who succeed).    

Clearly, the Ghanaian programme is to encourage the descendants of those trafficked as slaves, but does not include those with much more recent ancestral links to Africa. Apparently, more than 1,000 people have become citizens under this programme since 2016. 

The idea might seem to fit well with the stress on the diaspora in the Kenyan Constitution (including the issue of the right to vote), and the existence of a ministry with responsibility for diaspora affairs and the 2024 Policy on the Diaspora. And encouraging the diaspora to invest in Kenya has been a focus of at least one other Bill to amend the Act.  

PRACTICALITIES 
The DNA issue is interesting. A significant proportion of “white” citizens of the UK have a percentage of African DNA. This is likely to go back to the era of slavery, for some perhaps even 2,000 years to the Roman Empire period. Is 1.3 per cent Ghanaian DNA enough? (It is unlikely to be Kenyan, of course, because East Africans were not the subjects of the 16th to 19th century transatlantic slave trade.)  

We all know that colonial boundaries were drawn largely without regard for (perhaps even knowledge of) which communities lived where – to the extent that some, including some Kenyan boundaries, were drawn with a ruler. The result is that many Kenyan communities straddle international boundaries. Could DNA testing differentiating a Kuria from Tanzania from one from Kenya, for example? 

And what about the communities that clearly originated somewhere else but may even be recognised as a Kenyan ‘tribe’ – like the Makonde? DNA would indicate a person ‘belongs’ far from Kenya.  

Historically, Constitutions usually said little or nothing on citizenship – leaving it to ordinary law. The South African Constitution says “National legislation must provide for the acquisition, loss and restoration of citizenship”. The current Kenyan Constitution, however, goes into considerable detail. 

 
CITIZENSHIP BY BIRTH 
A person may be born a Kenyan – basically, this means that when they were born, at least one parent was a Kenyan citizen. It does not matter where they were born. This applies even if they were born before the new Constitution became law (Article 14 ).  

So in theory, Kenyan citizenship could be passed from parent to child indefinitely. This would apply even if some never applied for a Kenyan ID or passport or never even came to Kenya. In reality, some would have had to renounce their Kenyan citizenship because their new country does not accept dual nationality.  

Under the old Constitution, people who obtained another nationality automatically lost their Kenyan citizenship (section 97( 3 )(a) 1969 Constitution). But now that Kenya permits dual nationality, that is no longer the case. (Indeed, in a few cases, Kenyan courts have held that under the old Constitution, such people did not lose their Kenyan citizenship if it was ‘by birth’ – decisions that I consider doubtful.)  

Apparently, there have been some concerns about possible Trump-deported undocumented immigrants of Kenyan origin, making use of such a law. But they don’t need to. Undocumented migrants by definition do not have US citizenship – so would presumably retain Kenyan. And any child born to them in the US would be a Kenyan citizen – with the right to enter and remain in Kenya (Article 39( 3 )).  

There was some concern during the Constitution-making process over this idea of Kenyan citizenship passing indefinitely from generation to generation to people who had no real connection with the country. Only for around 100 years has there been a Kenyan diaspora – but imagine how many people there might be with Kenyan citizenship, even if they do not know it, in another 100 years!  

Therefore, Article 14 ( 3 ) was introduced into the draft Constitution – at a very late stage (even after the Parliamentary Select Committee’s radical changes to the draft). It allows Parliament to pass law that limits this possibility of passing citizenship overseas. Parliament could prevent citizenship passing between more than a certain number of generations (as the UK does). Or it could add some other requirement/s to be satisfied before citizenship passed.  

This has not happened. Indeed, the Diaspora Policy says the relevant ministry will, “Facilitate the acquisition of dual citizenship for Kenyans in the diaspora, including their children born in the Diaspora or descendants where applicable” – with no mention of any limit to this.  

Citizenship by ancestry would not come under citizenship by birth but by registration (Article 15). Only two situations give a right to be registered as a citizen: being married to a citizen for seven years or more, or being adopted as a child by a citizen. Living continuously (and legally) in Kenya for at least seven years entitles one to apply – but there is no guaranteed right to obtain citizenship. Parliament may add other conditions (as it has, including on language).  

Parliament can pass law about conditions to be applied to other non-citizens who wish to become citizens (Article 15 ( 4 )).  It would be under this provision that Parliament might pass law enabling a person with ancestral Kenyan connections to become a citizen by registration.  

But it is arguable that – when the Constitution drafters were obviously concerned about huge numbers of Kenyans with citizenship (hence Article 14( 3 )) – they would not have imagined Article 15( 4 ) allowing people without Kenyan citizenship being given easier access to citizenship on the basis of perhaps remote connections. 

The Ghanaian approach does require considerable practical Ghana connections in order for diasporans to obtain accelerated access to citizenship. 

ARTICLE 24 
Law that discriminates, like other violations of rights, is possible only if the law (if post-2010 ) specifically acknowledges that there is a violation of rights and is clear about it. This is to ensure that MPs address their minds to whether they are enacting limits on rights (Article 24 ( 2 )).  

Even then, the courts may be asked to rule if the law is reasonable and just, considering the object of the law and the importance of the rights affected. And they must consider whether the law’s objectives could be achieved by some method that does not infringe on rights so much.  

Here one could ask whether favourable provisions about getting a right of permanent residence might be sufficient – the Act says this is a possibility for “children or dependants under any law of citizens who are born outside Kenya and have acquired citizenship of [where they live].”  

In fact, various countries have special arrangements for their diasporas – such as India’s “Overseas Resident of India” status; benefits include visa-free entry, possibilities of some sorts of employment and local prices for national parks. 

I would argue that any special status would have to meet Article 24’s requirements. 

I suggest this topic would be better dealt with in legislation prepared by the government rather than a private member’s Bill. You would expect it to be carefully considered as a matter of national policy. However, as I have observed before, the chances of a private member’s Bill being passed are not very high. 

This article was first published by The Star Newspaper. 

Image: Newspaper Screenshot