Mwende Maluki Mwinzi, a dual Kenyan citizen, does not have to renounce her foreign citizenship in order to qualify to serve as Kenya’s Ambassador to South Korea — because she is not a State officer.
In recognising dual citizenship, Article 16 of the Constitution is categorical: “A citizen by birth does not lose citizenship by acquiring the citizenship of another country.” Moreover, she has pledged her oath of allegiance to serve as Kenya’s ambassador. Her loyalty to Kenya is, therefore, not in question.
Article 78(2) of the Constitution stipulates that “A State officer or a member of the defence forces shall not hold dual citizenship”. Article 260 defines a ‘State officer’ as “a person holding a State office” and goes on to define ‘State office’ by listing the offices in government that are constitutionally regarded as State offices.
Nowhere in the Constitution are ambassadors regarded as State officers. Moreover, by a judgment delivered on November 14, 2019, in Mwende Maluki Mwinzi versus Cabinet Secretary, Ministry of Foreign Affairs and two others, Justice James Makau ruled that ambassadors are not State officers.
The supremacy of the Constitution — well stated in Article 2(1) — cannot be overstated as concerns the service of dual citizens as Kenyan ambassadors.
Ambassadors are neither State officers nor members of the Kenya Defence Forces. A Kenyan ambassador can faithfully serve Kenya as a dual citizen.
Ability to opt out
Had the Constitution intended to limit dual citizens from becoming ambassadors, it would have expressly categorised them as State officers or excluded them under Article 78. Besides, Article 78(3) envisages dual citizens serving as State officers in the capacity of judges and members of commissions or where a dual citizen is “without ability to opt out” of their foreign citizenship.
The President was right in officially appointing Ms Mwinzi Kenya’s Ambassador to South Korea. He is bound by Article 131(2) of the Constitution to respect, uphold and safeguard the Constitution; promote respect for the diversity of the people and communities of Kenya; and ensure the protection of human rights and fundamental freedoms and the rule of law.
Parliament is now functus officio (its mandate has expired) regarding the ambassadorial appointment of Ms Mwinzi, South Korea has received her letter of credence presented to President Moon Jae-in at the presidential Blue House in Seoul, and she has assumed her ambassadorial duties.
Accordingly, any action to prejudice her in the performance of her ambassadorial role is tantamount to unfair discrimination, which Article 27 of the Constitution frowns upon. So long as the President has not dismissed Ambassador Mwinzi, the matter is now subject to the Vienna Convention on Diplomatic Relations 1961 and the rules of comity.
Prof Ojienda, senior counsel, is a past president of the Law Society of Kenya and the East Africa Law Society.