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
The writer is a Canadian trained attorney and the advisor to the PM of the Republic of Kenya