On violation of Human Rights: The case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR) ( SECTION 8(4) OF THE KENYAN CITIZEN AND IMMIGRATION ACT,2011)

SECTION 8(4) OF THE KENYAN CITIZEN AND IMMIGRATION ACT,2011 DECLARED UNCONSTITUTIONAL
 

Background: 
In the case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR), the Honorable Justice LN Mugambi, J delivered a judgment on 12/08/2024 declaring penalties imposed under section 8(4) of the Kenya Citizen and Immigration Act,2011 for non-disclosure of dual citizenship by Kenyan citizens as unconstitutional.

The petitioner, a Kenyan citizen by birth who had acquired dual citizenship, challenged the constitutionality of Section 8(4) of the Kenya Citizenship and Immigration Act, 2011. This provision imposed criminal penalties (fine of up to KES 5 million or imprisonment for up to 3 years) on Kenyans with dual nationality who failed to disclose their second citizenship within three months of acquiring it.

Issues for Determination:

Whether Section 8(4) of the Citizenship and Immigration Act violated the Constitution.

Whether the penalties under Section 8(4) were reasonable and justifiable in a democratic society.

Arguments by the Petitioner:

The provision infringed constitutional rights under:

Article 16 – Right to Kenyan citizenship

Article 19 & 24 – Limitation of rights must be reasonable and justifiable

Article 27 – Equality and non-discrimination

Article 28 & 29 – Human dignity and freedom from arbitrary arrest

Article 39 – Freedom of movement

The penalties were excessive, arbitrary, and disproportionate to the failure to disclose.

Arguments by the Respondents:

The provision aimed to ensure national security and immigration control.

Disclosure of dual citizenship was a reasonable administrative requirement.

Court's determination/Holding:

The High Court declared Section 8(4) unconstitutional, holding that:

The provision violated multiple constitutional rights, particularly the right to citizenship and human dignity.

The penalties were disproportionate, unreasonable, and not justifiable in a democratic society.

Citizenship rights are inalienable, and the state cannot criminalize failure to report dual citizenship. 

It was unreasonable and unjustifiable limitation on the right of dual citizenship and limiting the freedom and the security of the person and freedom of movement; a clear violation of human rights.

The court found that the penalties were disproportionate and unjustifiable, constituting an unreasonable limitation on the right to dual citizenship and infringing upon personal freedoms 

Implications of the Ruling

This judgment sets a significant legal precedent, reinforcing the constitutional protection of dual citizenship in Kenya. It underscores the importance of proportionality and reasonableness in the enforcement of legal obligations. The ruling may prompt legislative reforms to align the Kenya Citizenship and Immigration Act with constitutional principles, ensuring that penalties do not unduly infringe upon individual rights . 

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