Mwende Mwinzi, a dual citizenship holder who was nominated as Kenya’s ambassador to Seoul, North Korea .Her nomination continues to elicit mixed reactions on her legitimacy for the job.Photo: Mwinzi's Facebook page

Should Politics or the Law Prevail in Mwende Mwinzi’s Nomination?

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The nomination of Mwende Mwinzi, a dual citizenship holder, as Kenya’s ambassador to Seoul, South Korea continues to elicit mixed reactions on her legitimacy for the job.

The defiant Mwinzi is fighting for her posting since she has to renounce her American citizenship before taking up the job. She was nominated with other 18 individuals to various consulates in May this year by President Uhuru Kenyatta.

Although Chapter 3, Article 16 of the Constitution 2010 allows dual citizenship for Kenyans, the Leadership and Integrity Act 2012 prohibits anyone appointed as a state officer from holding dual citizenship.

Although Mwinzi was born in US, she is constitutionally a Kenyan citizen by birth due to her Kenyan father hailing from Kitui County. Mwinzi’s birth in US guaranteed her the US citizenship automatically by the virtue of her American mother.

Mwinzi is fighting in court for her ambassadorial posting to South Korea after National Assembly’s committee on Defence and Foreign Relations chaired by Katoo ole Metito approved her nomination but placed a condition that she has to renounce her US citizenship first as per the law.

She petitioned the High Court to allow her to report to her new work station on grounds that it’s not mandatory for her to renounce US citizenship since the envoy position is not a state office. She terms the parliamentary committee’s caveat of renouncing her American citizenship as “illegal, null and void, and violation of her fundamental rights”.

Mwinzi, in her petition, also wants the court to establish whether the diplomat position is a State Office or a Public Office.

The 2010 Constitution under Article 260 defines a state officer who is also a public officer as everybody holding a public office or simply a taxpayer funded office. They include administrators in state agencies, teachers in public schools, nurses and doctors in public hospitals.

The diplomats, though not singled out among a long list of state officers, they definitely fall under the listed category of “an office established and designated as a State office by national legislation” in Article 260 of the Constitution.

The ongoing push and pull on Mwinzi’s nomination has seen Opposition Leader Raila Odinga come to her defense and terming Parliament’s stance on her dual citizenship as “extremely disturbing and dubious”.

“Opposition to Mwende’s appointment amounts to killing the spirit and necessity of dual citizenship trough which Kenyans sought equal rights abroad and at home to enable them contribute to the development of our nation,” Odinga said in a press statement on September 5, 2019.

Odinga argues that Mwinzi cannot denounce any of the Kenyan and US citizenship because she acquired them not by application or naturalization but by birth.

Mwinzi is required to renounce the US citizenship before reporting to South Korea so that she isn’t thrown into limbo when the Kenya and America’s interests clash during her tenure at the Seoul consulate.

“The Constitution protects her from jeopardy by making a proviso for people like her that the bar from holding a State Office by dual citizenship holders will not apply where they cannot renounce it because it is obtained by operation of the law,” said Odinga.

National Assembly Majority Leader Aden Duale, however, maintains that the law must be followed and that Parliament will not be “arm twisted or blackmailed” to give Mwinzi the green light to proceed to South Korea without renouncing the American citizenship.

Duale insists that an ambassador is a public officer in dismissing Mwinzi’s claim that it’s a State Officer’s position hence it’s not mandatory for her to renounce US citizenship.

“It is worth noting that section 52 of the Leadership and Integrity Act, 2012 provides that the provisions of Chapter Six of the Constitution which includes Article 78(2) shall apply to all public officers as if they were State officers,” Duale said in a thread of tweets. (https://roggkenya.org/laws-rules/lia-leadership-and-integrity-act-kenya/

“Let me bring it out clear that as Parliament we shall follow the law. We shall ensure it is implemented to the letter. Arm twisters and blackmailers we have decoded you. We shall follow what is right and lawful. You can take this to the back!” said Duale.

He noted that the Presidency has been misled from the nomination of Mwinzi to put it in collision with Parliament then the legislators are intimidated and bulldozed to okay her appointment regardless of the illegality.

Other members of parliament are sharply divided on Mwinzi’s nomination as she waits for the court to decide on her fate. Some MPs want her to proceed to her work station as a dual citizenship holder while others insist that she must renounce the US citizenship. https://www.standardmedia.co.ke/article/2001329052/dual-citizenship-fallout-over-envoy-nominees-far-from-over

Mwinzi bid to retain her dual citizenship while serving as an ambassador against the law has opened the Pandora’s Box as the Ethics and Anti-Corruption Commission has swung into action investigating state/public officers with dual citizenship. https://www.standardmedia.co.ke/article/2001344413/governors-and-css-among-state-officers-facing-citizenship-probe

The officers found with dual citizenship risk losing their positions within 30 days as per Article 78 of the Constitution, and a fine of up to Ksh. 500,000 or jailed for up to three years upon conviction, according to Section 47 of the Leadership and Integrity Act. https://roggkenya.org/offences/dual-citizenship-of-a-state-officer/

Mwinzi contested the Mwingi West parliamentary seat in 2017 unsuccessfully on Jubilee Party which means she was supposed to renounce her US citizenship before being sworn in as the MP as per the law had she clinched the seat.

Lawyer Mutula Kilonzo Jnr also confirmed to RoGGKenya that there is no any provision in law that protects Mwinzi from renouncing her US citizenship as alleged by Odinga.

“She has to make an election. Unless we change the law, she is between a rock and a hard place. Also there is no reason to bend the law to suit a particular position,” said Kilonzo Jnr.

What journalists need to do for proper reporting

  1. Check what Chapter 3, Article 16 of the 2010 Constitution says about dual citizenship by Kenyans.
  2. Check Section 52 off the Leadership and Integrity Act, 2012 to establish if provisions of Chapter Six of the Constitution include Article 78 (2) applies to both public officers and state officers.
  3. See what Section 3 of the Leadership and Integrity Act, 2012 says about anyone appointed to a State or Public office but holds dual citizenship. They should also check penalties associated with anyone violating the law requiring them to renounce dual citizenship before taking up a state or public office position.
  4. Check the definitions of a state officer and a public officer as provided under 260 of the Constitution
  5. Crosscheck what politicians say not to misinform and mislead the gullible public by falsehoods meant to serve individual’s own political interests.

By Samuel Kisika