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Bishop Mwawasi Dual Citizenship Case

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Bishop Donald Kisaka Mwawasi Bishop Donald Kisaka Mwawasi

Bishop Donald Kisaka Mwawasi verses Independent Electoral & Boundaries Commission IEBC case based on whether a Kenyan who holds dual citizenship has right for participating in elective office was ruled by Justice David Majanja Majanja. The judge ruled based on Constitution Article 78. (2) A State officer or a member of the defence forces shall not hold dual citizenship. Based on this the judge ruled in favor of IEBC not accepting nomination papers from a person with dual citizenship. Bishop Mwawasi is looking to appeal this and have the Court of Appeals and if need be the Supreme Court make a final ruling.

Opinions in favor of Bishop Donald Mwawasi still running are based on meeting the requirement of citizenship by Constitution Article 14. (1) A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. 16. A citizen by birth does not lose citizenship by acquiring the citizenship of another country.   

The opinion also says the judge should have applied the whole of Constitution Article 78. (1) A person is not eligible for election or appointment to a State office unless the person is a citizen of Kenya. (2) A State officer or a member of the defence forces shall not hold dual citizenship. (3) Clauses (1) and (2) do not apply to— (b) any person who has been made a citizen of another country by operation of that country’s law, without ability to opt out.

When 78 3 (b) is applied the guidelines of IEBC can be changed to, “A person who is a dual citizen shall only be considered to have won if they have opted out to becoming citizens of the country they are in before they are awarded the certificate of winning.” Such a guideline would mean the person who loses a seat cannot therefore hold office based on losing. On the other hand a person who wins cannot hold office before revoking the citizenship from other country so he can serve his/her birth country. 

Kenya constitution shows that citizenship of Kenya by registration is not 100% permanent based on  revocation article 17. (1) If a person acquired citizenship by registration, the citizenship may be revoked if the person–– (b) has, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war; (c) has, within five years after registration, been convicted of an offence and sentenced to imprisonment for a term of three years or longer; or (d) has, at any time after registration, been convicted of treason, or of an offence for which–– (i) a penalty of at least seven years imprisonment may be imposed; or (ii) a more severe penalty may be imposed. 

The Constitution definitions: “State officer” means a person holding a State office; “State office” means any of the following offices—(a) President; (b) Deputy President; (c) Cabinet Secretary; (d) Member of Parliament; (e) Judges and Magistrates; (f) member of a commission to which Chapter Fifteen applies; (g) holder of an independent office to which Chapter Fifteen applies; (h) member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;(i) Attorney-General; (j) Director of Public Prosecutions; (k) Secretary to the Cabinet; (l) Principal Secretary; (m) Chief of the Kenya Defence Forces; (n) commander of a service of the Kenya Defence Forces; (o) Director-General of the National Intelligence Service; (p) Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or (q) an office established and designated as a State office by national legislation. 



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