Misreporting could add to tensions between judiciary, executive in Kenya

5 February 2024 · Carmel Rickard

A recent high court decision in Kenya about the government’s failure to make a decision on whether to grant a citizenship application, has been incorrectly reported in some of the media in that country. The case concerned a man who lost his Kenyan citizenship when he took UK citizenship as a child. Now that the law has changed to allow dual citizenship he has applied for Kenyan citizenship. But after sitting with the matter for five years, the authorities have still not made their decision. The court held it did not have power itself to grant citizenship to the applicant, but gave the authorities six months to make their decision and inform the applicant of the outcome. However, reports in the media say the court ordered the grant of citizenship. It’s a serious mistake, particularly at this time when dangerous tension exists between Kenya’s judicial and executive arms.

Read judgment

Kenyan high court judge Lawrence Mugambi, sitting in the constitutional and human rights division, has been considering a petition launched in 2023 by Hamza Egal against the Kenyan authorities responsible for immigration and citizenship under the Kenya Citizenship and Immigration Act.

Giving the background to his petition, Egal says he is a citizen of the United Kingdom, but that his mother was Kenyan and he was a ‘Kenyan citizen by birth’. However, he says, his efforts to regain Kenyan citizenship have been thwarted by the Kenyan authorities who are taking an inordinately long time to process his application. Not just that, they have also barred him from entry to Kenya, despite his Kenyan roots.

He was born in 1983, outside Kenya, and in 1996 moved to Kenya after his mother died, to live with his grandmother. Until 2000 he went to school in Kenya. Then he moved to the UK to study law and to complete a master’s degree in public administration, and he took UK citizenship.

‘Inadmissible person’

In 2012, he returned to Kenya and applied for a birth certificate ‘of a Kenyan citizen born abroad.’ In 2015, he applied for a Kenyan national identity card and this was issued to him in 2017 ‘after a thorough vetting process’.

In December 2016, he tried to return to Kenya after a trip abroad, but was denied entry ‘on the ground that he was an inadmissible person.’ He was, however, not given any explanation for this action against him.

Since then, he had tried several times to come to Kenya but he says he has been thwarted by the government that issued ‘red alerts’ against him. Again, he was given no explanation.

Were his constitutional rights violated by the delayed decision?

He applied to regain his Kenyan citizenship in December 2017, but he has had no response.

Egal therefore asked the court to declare that his constitutional rights were violated by the authorities’ ‘arbitrary’ refusal to allow him entry to Kenya. He also wanted the judge to declare that he is a ‘Kenyan citizen by birth’ and entitled to all the normal rights of citizenship including the right to enter and remain in the country.

Further, he asked the court to declare that the inordinate delay in processing his application for regaining citizenship was unlawful and unconstitutional, and to prohibit the authorities from issuing any further ‘red alerts’ or notices declaring him an ‘inadmissible person’.

‘Usurping’ mandate of immigration, citizenship authorities

Most significant for this story, he specifically asked the court to ‘compel’ the authorities to issue him with Kenyan citizenship.

A senior immigration officer filed a reply to the effect that the immigration authorities hadn’t ‘deliberately refused’ to finalise his application for citizenship and were ‘still deliberating on the same’.

She also urged the court not to grant the orders that Egal asked for because this would amount to ‘usurping’ the constitutional and statutory mandate of the immigration and citizenship authorities.

Regaining citizenship not an automatic process

In his decision, delivered last month, Mugambi explained that the current constitution differed from the pre-2010 constitution by, among others, permitting dual citizenship. This had not been allowed before. Under the old constitution, someone who became a citizen of another country would have had to renounce their Kenyan citizenship.

This was no longer the case. Now, citizens by birth who had lost citizenship in this way, could apply to regain Kenyan citizenship.

Egal had forfeited his Kenyan citizenship when he became a citizen of the UK under the pre-2010 constitution. Although it was now possible for him to regain his Kenyan citizenship, this was not automatic and he would have to follow an application process.

‘Not the task of the court’

The judge made it quite clear that Egal could not claim he was a citizen ‘unless and until’ his application was made and granted.

The relevant cabinet secretary would have to be satisfied that Egal was properly qualified to be a Kenyan citizen. All the information given by Egal to the court, such as his mother having been Kenyan, that his wife and children were Kenyans and that most of his close relatives were also Kenyans, would be relevant facts for the cabinet minister to consider and verify in deciding whether to grant citizenship to Egal.

This was not the task of the court, said the judge; the statutory responsibility for making this decision was given to the relevant government authorities.

‘Inexcusable slackness’

But the court made several significant points. First, the judge expressed concern about how it had happened that Egal was issued with a birth certificate and a national ID card. How was it possible for him to have obtained these documents, ‘reserved for Kenyan citizens, before regaining his Kenyan citizenship,’ asked the judge.

Next, Mugambi agreed that a delay of five years in processing an application amounted to ‘inexcusable slackness’. Egal did not appear to share any blame for this situation, and had apparently submitted all the documents required of him. The court found that the delay had been inordinate, while the refusal to give written reasons for barring him from the country violated the constitution.

Egal should have been told at the point of expulsion, the ‘exact reason’ for why he was refused entry, said the judge, adding that, in earlier decisions, the Kenyan courts had held that people couldn’t be treated in a ‘casual manner’ and had to be told why they were refused entry to the country.

Power to decide citizenship issue does not lie with courts

Mugambi therefore held that Egal’s rights were violated by the failure ‘to vividly give him the reasons’ why he was removed from Kenya.

He also made an important point for court-watchers: if the authorities knew of a security threat posed by Egal, they should have explained this to the court, even if ‘confidentially’, he said. Absent any such evidence of reasonable grounds for excluding Egal from Kenya, the court had to find that the actions taken against him were arbitrary.

Formulating his orders, the judge was at pains to repeat that the court couldn’t make a decision to grant citizenship to Egal. This power lay with the cabinet secretary, not with the judiciary.

Six month ultimatum to finalise decision

He therefore held that Egal’s right to fair administrative action had been violated when he was refused reasons for why he was declared an inadmissible person. Second, he declared that the delay in processing Egal’s citizenship application had been inordinate and that this too was a violation of fair administrative action.

Finally, he ordered the relevant authorities to hurry up with the task of processing Egal’s application for citizenship and gave them six months to make this decision and advise Egal ‘on the results of his application’.

In the wake of this judgment, several stories appeared in the media about the case.

Media reports incorrect

The publication ‘Mwakilishi’ ran it under the headline: ‘UK resident gains Kenyan citizenship through legal battle’ and begins, ‘The government has been given … six months by the high court to grant Kenyan citizenship to a UK resident who was born in Kenya.’

Another publication, the Amnon Free Press, proclaimed ‘Kenyan court orders citizenship restoration for UK resident’, and opens with this sentence: ‘The high court has directed the Kenyan government to grant citizenship to [Egal], … within six months.’

A third, by the Nation, read ‘UK resident wins legal battle for Kenyan citizenship’ and says that the court gave government six months ‘to grant Kenyan citizenship’ to Egal.

Judge didn’t prescribe what the decision should be

Obviously, the three reports are incorrect.

The judge was careful NOT to order the grant of citizenship and to spell out that he did not have the power to do so. Instead, he gave the authorities six months to make an official decision and communicate that to Egal. The judge clearly did not say what that decision had to be.

One of the problems about these incorrect headlines and stories is that they come at a time when the judiciary in Kenya is under enormous pressure from government because of court decisions that the president, William Ruto, perceives as contrary to his social programmes. It has escalated to a truly worrying level with government threatening to ignore court orders and weed out ‘corrupt’ judges.

Headlines and stories claiming that judges effectively infringed on the statutory powers of the executive can only make matters worse. - And the stories aren’t even correct.

Carmel Rickard

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