The case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR), decided on August 12, 2024, by the High Court of Kenya, is a significant milestone in the realm of constitutional and human rights law. This landmark judgment addresses the constitutionality of Section 8(4) of the Kenya Citizenship and Immigration Act, which imposes severe penalties on Kenyan-born dual citizens who fail to disclose their dual citizenship status.
This article delves into the intricacies of the case, its implications, and its impact on the legal landscape in Kenya.
Background of the Case
The case centers on the provisions of Section 8(4) of the Kenya Citizenship and Immigration Act, which states that " A dual citizen who fails to disclose the dual citizenship in the prescribed manner commits an offence and shall be liable, on conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both."
According to this section, individuals who do not disclose their dual nationality could face punitive measures, which have been challenged as being disproportionate and unreasonable. Ndegwa, the petitioner, argued that this section of the Act unjustifiably infringes on the right to dual citizenship as guaranteed under the Constitution of Kenya.
He contends that the penalties are not only excessive but also constitute an unnecessary restriction on his constitutional rights.
Key Legal Issues
Right to Dual Citizenship: The Kenyan Constitution, under Article 14, recognizes the right to dual citizenship. This provision acknowledges the modern reality of global mobility and the need for individuals to maintain connections with multiple nations. However, Section 8(4) of the Act imposes harsh penalties for non-disclosure, which arguably undermines this constitutional right.
Proportionality and Reasonableness: Central to the challenge was whether the punishment outlined in Section 8(4) was proportional to the objective it sought to achieve. The Constitution of Kenya enshrines the principle of proportionality, which mandates that any limitation on fundamental rights must be reasonable and justifiable in a democratic society.
Discrimination: The petitioner contended that the requirement for Kenyan-born dual citizens to disclose their status, while foreigners were not subjected to similar penalties, was discriminatory. This differentiation was argued to be a violation of the right to equality and non-discrimination under Articles 27(1) and (2) of the Constitution.
Judicial Review of Statutory Provisions: In reviewing the constitutionality of statutory provisions, the judiciary must assess whether such laws align with the principles of fairness, justice, and reasonableness. In this case, the court is tasked with determining whether the penalties for non-disclosure of dual citizenship under Section 8(4) are an undue infringement on the constitutional right to dual citizenship.
Court’s Analysis and Judgment
The High Court, presided over by Hon. Justice Mugambi Lawrence Nthiga, undertook a thorough analysis of the legal arguments presented. The court held that it was the duty of the State to demonstrate that there were no less restrictive means to enforce the duty to disclose dual citizenship. In the absence of any justification provided by the respondents, the court found that the choice of heavy criminal sanctions as enforcement machinery was not based on a reasonable assessment of all relevant facts.
The court concluded that the punishment imposed by Section 8(4) was an unreasonable and unjustifiable limitation on the right to dual citizenship. It further held that this section was an unnecessary fetter to the freedom and security of the person and freedom of movement, hence unconstitutional.
Implications of the Judgment
Legal Precedent: This judgment sets a significant legal precedent in Kenya, reinforcing the constitutional protection of dual citizenship. It underscores the importance of proportionality and reasonableness in the enforcement of legal obligations.
Policy Reforms: The ruling may prompt legislative reforms to align the Kenya Citizenship and Immigration Act with constitutional principles. Lawmakers may need to revisit the provisions of the Act to ensure they do not infringe upon fundamental rights.
Human Rights Advocacy: The case highlights the role of the judiciary in safeguarding human rights and freedoms. It serves as a reminder of the judiciary’s duty to scrutinize laws that may disproportionately impact individuals’ rights.
Conclusion
Dual Citizenship in Kenya: Insights from Ndegwa v Attorney General & Another is a landmark decision that reaffirms the constitutional rights of dual citizens in Kenya. By declaring Section 8(4) of the Kenya Citizenship and Immigration Act unconstitutional, the High Court has underscored the principles of proportionality, reasonableness, and non-discrimination.
This judgment not only protects the rights of dual citizens but also sets a precedent for future cases involving the limitation of fundamental rights. If you have any questions about dual citizenship or need legal assistance with immigration matters, contact our experienced legal team today.
We are here to help you navigate the complexities of Kenyan immigration law and protect your rights. Schedule a consultation with us to get personalized legal advice and support.
To learn more, see the full Judgement in Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR) (Constitutional and Human Rights) (12 August 2024) (Judgment).
