Factors to consider in establishing citizenship by birth

Galma Duba Gufu v Attorney General & another [2019] eKLR

Petition No.5 of 2018

High Court at Marsabit

SJ Chitembwe, J

November 27, 2019

Reported by Kakai Toili

Constitutional Law – citizenship – citizenship by birth – factors to be considered in establishing citizenship by birth - revocation of citizenship by birth - what were the circumstances in which citizenship by birth could be revoked – when could one lose citizenship by birth - Constitution of Kenya, 2010, articles 13, 17(2); Kenyan Citizenship and Immigration Act, Cap 172 Laws of Kenya, section 21(2)

Constitutional Law – citizenship – citizenship by birth – where it was alleged that a person’s citizenship by birth had been revoked – remedies available - whether a court could make an order for a person to make a fresh application for citizenship

Brief facts

The petitioner claimed that he was a businessman in Marsabit and was born in 1982 at Dirib Gombo in Marsabit County. He further claimed that in the year 2002 there was vetting of people for registration purposes in his location and he was vetted and three months later issued with a Kenyan identity card.  It was alleged that the petitioner’s parents gave out their identity cards during the vetting. The petitioner claimed that he was arrested on August 8, 2004 and taken to Sololo Police station and that his identify card was taken away by the police.  He further alleged that he was charged with the offence of moving around at night and was fined Kshs.3000 in default to serve one month imprisonment. 

The petitioner claimed that he went back to Moyale Police Station to collect his identity card and was directed to go to Sololo Police station but he was arrested again at the police station and placed in the cells for about two (2) hours and then released without being given his identity card.  The petitioner claimed that he was a Kenyan and had not been charged with the offence of being a foreigner. 

Issues

1. What were the factors to consider in establishing citizenship by birth and when could one lose citizenship by birth?
2. What were the circumstances in which citizenship by birth could be revoked?
3. Whether a court could make an order for a person to make a fresh application for citizenship where it was alleged that the person’s citizenship by birth had been revoked.

Relevant provisions of the law

Constitution of Kenya 2010

Sixth Schedule

Section 30 – A Kenyan citizen is a citizen by birth that citizen –

1. acquired citizenship under article 87 or 88 (1) of the former Constitution; or
2. would have acquired citizenship if Article 87 (2) read as follows: -

 “Every person who, having been born outside Kenya, is on 11^th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father or mother becomes, or would but for his or her death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12^th December, 1963.

Kenya Citizenship and Immigration Act, 2011

Section 21

1. The Cabinet Secretary may, where there is sufficient proof and on recommendation of the Citizenship Advisory Committee, revoke any citizenship, acquired by registration on the grounds specified in Article 17 of the Constitution.
2. The Cabinet Secretary shall by notice, in writing, inform any person whose citizenship is due for revocation of the intention to revoke his or her citizenship giving reasons for the intended revocation.
3. The Cabinet Secretary shall give a person who has been given a notice under subsection (2) an opportunity to present the reasons why his or her citizenship should not be revoked.
4. The Cabinet Secretary may after considering the presentations made under subsection (3) revoke the citizenship and cause the revocations to be entered into the register for revocation of citizenship.

Held

1. The petitioner was born in 1982 and was issued with a Kenyan identity card in 2002 before the promulgation of the Constitution of Kenya, 2010 (Constitution). Article 18 of the Constitution empowered Parliament to enact legislation on citizenship and that led to the enactment of the Kenya Citizenship and Immigration Act, Chapter 172, Laws of Kenya in August, 2011.  Section 30 of the Sixth Schedule to the Constitution was not very relevant to the instant case.  Article 87 of the repealed Constitution related to citizens of United Kingdom and its colonies who were born in Kenya.  The petitioner testified that he was born at Dirib Gombo area in Marsabit County. He was vetted and issued with a Kenyan identity card. His parents were Kenyans, his father was a holder of a Kenyan identity card while his mother held a Kenyan identity card.  It was therefore clear that the petitioner was a Kenyan by birth.
2. There was no evidence that the petitioner’s citizenship was revoked in accordance with the provisions of section 21(2) of the Kenyan Citizenship and Immigration Act. Under article 17(2) of the Constitution, it had to be established that the person who was presumed to be citizen by birth acquired the citizenship by fraud, false representation or concealment of any material fact or it was established that the person was a nationality of another country or his parentage was not Kenyan.
3. The only document which made reference to the contention that the petitioner was not a Kenyan citizen was a letter dated September 16, 2019.  There was reference to letter of Ref SEC/POL 2/1/6/Vol.1/99 which was not produced.  It was not clear what the contents of that letter were.
4. The petitioner contended that his identity card was taken in 2004, that contention was believable because that was the time he was arrested.  There was a letter dated December 13, 2012 addressed to the District Registrar of Persons by the Senior Chief of Dirib Gombo location.  The letter stated that the petitioner was the resident of the location and was issued with an identity card in 2002.  There was a letter dated January 20, 2014 by the petitioner addressed to the National Registration of Persons.  The letter indicated that the petitioner re-applied for an identity card in Nairobi and was told that he was an alien.  He followed up the issue with the UNHCR and was confirmed that he was not an alien. It was therefore clear that the petitioner had persistently been following up the issue of his identity card. 
5. It could be that it had taken too long for the petitioner to complain but the reality was that he had at all times maintained that his identity card was taken by the police in 2004.  He was issued with an identity card and DW2 confirmed that and an identity card was issued to him. The identity card was issued to him in his capacity as a Kenyan by birth. The petitioner was a Kenyan citizen by birth and the identity card issued to him in 2002 was not procured through fraud or misrepresentation of facts.
6. Despite the petitioner’s denial, on a balance of probabilities it was established that the petitioner was charged under the Immigration Act for being in Kenya illegally and was fined Kshs.5000. The petitioner was a Borana and there were Boranas in Ethiopia. There was no single document indicating that he was from Ethiopia or had ever lived in that country.  In 2004 the repealed Constitution did not allow dual citizenship.  The letter dated June 16, 2019 did not state the reason for the invalidation of the petitioner’s records.  It did not make reference to the court case as the reason as to why his records were invalidated.
7.  The petitioner’s parents were Kenyans and lived in Kenya.  The petitioner lived in Kenya.  There was no evidence that he renounced his Kenyan citizenship and became an Ethiopian. If the petitioner pleaded guilty to the charges of being in Kenya illegally or was convicted that did not make him a non-Kenyan. He was a Kenyan by birth and could not be stripped off his citizenship.  The entry from the court was done on October 9, 2004.  It was not clear what happened between August 8, 2004 to October 9, 2004.
8. There was no judgment or proceedings other than the occurrence book entries. The question which the respondents had to grapple with was proof that the petitioner was an Ethiopian. The respondents could all along have even ordered for DNA test to confirm the petitioner’s parentage.  His parents were available and had readily stated that they were his parents.  The area chief and assistant chief had confirmed that they knew the petitioner since childhood. The position taken by the respondents that the petitioner pleaded guilty to being in Kenya illegally was not a good reason for taking away the petitioner’s Kenyan citizenship by birth.  Citizenship came with several advantages. The petitioner’s children had been denied birth certificates since their father’s identity card was invalidated. The petitioner’s mobile registration was also cancelled and could not enjoy the privileges which come with the possession of an identity card.
9.  The court could not hold that the petitioner make a fresh application for purposes of regaining his citizenship because he would have to prove the citizenship of his country. At that moment he lived in Kenya and the evidence showed that he had all along lived in Kenya.  He could not prove that he was an Ethiopian citizen and proof of citizenship of another country was a requirement when one made an application to regain Kenyan citizenship.
10. The petitioner’s parents were Kenyans and his mother testified that she obtained her first identity card when she was 20 years old.  Therefore as long as the petitioner’s parents were Kenyans, the petitioner would remain a Kenyan by birth unless the contrary was proved. Citizenship by birth could not be lost unless one renounced it.  The petitioner’s identity card was invalidated maybe in the year 2005 before the promulgation of the Constitution. Some legal provisions were not in force then. However, since the petitioner had been pursuing his identity card all along, it was not clear why there was no communication to him.  No reasons for the alleged invalidation were given, between 2004 to 2019 there had been no communication to the petitioner and he had all along been expecting to be issued with his identity card. 

Petition allowed; costs to the petitioner.

Orders

1. A declaration was issued that the petitioner was holder of a valid Kenya National identity card and remains the legitimate holder of Id/No.[xxxx].
2. A declaration was issued that the petitioner was a Kenyan citizen by birth and declared that all decisions, actions by the 2^nd respondent, purporting to confiscate or withhold the petitioner’s national identity card aforesaid, were unconstitutional, null and void.
3. An order was issued compelling and directing the respondents jointly and severally by themselves their servants, agents officers or whomsoever else was acting on their behalf to surrender to the petitioner his national identity card number [xxxx], forthwith and from preventing or in any other manner whatsoever or howsoever from interfering with the petitioner’s right of being a Kenyan citizen.