Imagine this.
You are a woman born and brought up in Kenya. Kenya is the only home you have ever known. You believe yourself to be Kenyan. But, when you apply for your passport, you have to prove not only your birth here””but your descent from or marriage to a Kenyan man. You realise, for the first time, that your citizenship, which you had always taken for granted””the means through which you access all facets of the state (such as they are)””is wholly dependent on your relationship to Kenyan men.

Or this.
You are the same woman. You meet, like, love, decide to marry somebody who is not Kenyan. You make the decision, as a couple, to stay in Kenya. But you cannot extend your citizenship to him. His stay here is dependent on entry permits””tedious renewals every two years, which could be easily denied should the Department of Immigration decide that he is doing here what any Kenyan could and should do instead. You eventually have children with him. Your children are born and brought up here. But, when you apply for their passports, you discover that they have no rights to Kenyan citizenship at all. Rendering their life here, in the only country that they have known, as tenuous as his.

Or this.
You are a child of a Kenyan father and non-Kenyan mother. Because of your father, you are treated as a Kenyan until the age of 23, at which point you are expected to ‘choose’ your citizenship. You, the person, have not changed””you are not more one thing than the other and you lay claim to both heritages. But you are expected to state your allegiance, prove it by formally surrendering any right to the citizenship of your mother. Even if you have already implicitly stated your allegiance simply by your choice to remain here, for better or for worse. You make the ‘choice’ because you are forced to. You cut yourself off from all you are entitled to through your mother’s citizenship. Or you cut yourself off from formal recognition by your father’s state. You realise for the first time how little the law can correspond with reality. Because you yourself are still the product of both.

Or this.
You are from northern Kenya. You look Somali (you might be, but not necessarily). You apply for an identification card””requirement for everything from basic employment, to registration with the national health and social insurance and tax schemes, to registration to vote. You have to prove a long line of descent going back to great-grandfathers””how is the Kenyan state to otherwise know that you are not, in fact, a Somali from Somalia, trying to sneak in as an undocumented refugee or, worse, an Al Shabaab member? Your local Chief has to vouch for the same””woe unto you if you have ever offended him (it is usually a him) in any way. You realise later that Kenyans of Somali descent””and all ethnicities in the north””are, in fact, still subjected to special vetting procedures to obtain this vital document.

And this.
You are a Kenyan student, male or female. With great difficulty and sacrifice, your family has managed to scrape together the funding to send you away to school. You go through the inevitably ignominious visa application process. You succeed. You are now anywhere else in the world. You have finished school and make the decision to stay and work””perhaps because you know there is little work in your field at home, perhaps because you know you could earn more abroad. You go through the equally ignominious process to acquire the right to stay and work. Eventually, you decide to acquire citizenship wherever you are””to end the constant questioning about your right to be there, to make it easier to move around and, hopefully, upwards in employment in your field. Or even, perhaps, to make it easier for other members of your family to come over and also access the opportunities you have.

But you have stayed connected to ‘home.’ You follow the news online. You debate the goings-on passionately with the other Kenyans you have connected to. You plan, at some fuzzy point in the future to return. You send money home dutifully””first to your family, and then to build up some sort of base for your return. You celebrate the recognition of Diaspora contributions through such remittances to the Kenyan economy. Your claim to Kenya is never in doubt””at least in your own mind.

Lo and behold. The Kenyan state does not think so. On one of your visits home, your confident walk to the line for citizens is halted by an immigration official at the airport. Get to the line for foreigners. After filling out a visa application form. Your protests met with dull indifference. You are not a Kenyan after all. You have become a tourist for all intents and purposes.

These are fictional accounts. But they are based on the reality of citizenship under our current Constitution. Our current Constitution does not recognise the multitude of ways in which belonging to, identification with a state (or several states simultaneously) can and does happen. Our current Constitution does not recognise the multitude of ways in which belonging to, identifying with Kenya can and is denied””on a casually indifferent and routine manner.

Citizenship can be claimed in three primary ways. By birth. By descent. By naturalisation (following, for example, marriage, migration, long term residency for purposes of choice, employment and investment). Our current Constitution, in effect, recognises only citizenship by descent from a Kenyan male””and, in limited circumstances, by naturalisation. It is not enough to be born here. To be Kenyan, you have to be born to a Kenyan father””and, even if you were born elsewhere, as long as your father is Kenyan, you’re in. Although being in is not automatic if you are from the north. And you can, of course, also be in if you chose to naturalise””but doing so means that you have to forfeit any citizenship claims you might hold elsewhere.

I do not think the drafters of our current Constitution could have fully realised what emotional and mental cruelty they were subjecting so many Kenyans to by being so limited in their conception of belonging and identification. True, that Constitution was drafted at the height of the nationalist period””after a protracted struggle against the forcible claim of Kenya by British and other settlers, in which Asian and other migrants inevitably found themselves also enmeshed. The assumption was, understandably, that any African Kenyan was a ‘real’ Kenyan. The proposition was, equally understandably, that any European settler or Asian migrant would have to pledge their loyalty to the new Kenyan state””and would do so by renouncing any other claims of citizenship, in part to stem anticipated capital flight.

The other assumption, of course, on which both European settlers and African Kenyans were in surprising accord””due to imported Victorian legislation on citizenship and customary understandings of the place and role of women””was that Kenyan women did not need citizenship in their own right. They simply needed to get married and all required legal protections would flow.

But being able to grasp the logic then””and even understand it””is not necessarily to admit to that logic being right. And if it was not right then, it is certainly not right now. Kenyans understand that ethnicity, race and migration””both inside and outside the country””are or should not be arbiters of citizenship. Kenyans understand that old ways of managing capital flight are today meaningless in the face of liberalised financial markets. Kenyans understand that gender is or should not be a determinant of citizenship. Not all Kenyan women will be married. And those that are will not necessarily be married to other Kenyans. Ethnicity and race are far more fluid notions than they used to be””in reality, even if that reality does not come through in the kind of racist and xenophobic positioning so prevalent last year.

The provisions on citizenship in the Harmonised Draft Constitution of Kenya are thus a relief. A relief to all of those whose claims to Kenyan citizenship have not been recognised in law (or in practice) to date.
First, it clearly stipulates that citizenship may be acquired by descent from either a Kenyan mother or a Kenyan father””whether born inside or outside of the country. Second, it clearly stipulates that naturalisation can occur either through marriage to a Kenyan of any sex for at least seven years or through lawful residency in Kenya for a continuous period of at least seven years. Non-Kenyan children adopted by citizens are also entitled to citizenship. Third, it clearly stipulates that Kenyans are entitled to dual citizenship””and to regaining their Kenyan citizenship if they had lost it through gaining the citizenship of another state. And fourth, it categorically entitles every citizen to a passport and any other registration or identification document the state may issue.

What these provisions mean is that all of the problems identified in the fictional accounts above have been resolved in the Harmonised Draft Constitution. Kenyan women will have citizenship in their own right. Kenyan women will be able to pass on their citizenship to non-Kenyan spouses and to their children. The children of Kenyans and non-Kenyans as Kenyan emigrants can reclaim (if already lost) or retain their Kenyan citizenship regardless of their having citizenship elsewhere. Northern Kenyans””like all Kenyans””will be able to assert a Constitutional right to registration and identification documents and passports.

The only curious omission is that of entitlement to citizenship by birth””merely being born here is not enough to be in. It is not like Kenya is, say, the United Kingdom or the United States””in which some would-be or acknowledged migrants carefully plan their pregnancies and delivery dates so as to ensure their children of citizenship that would offer them far better opportunities than those available wherever they have migrated from. People are not so desperate to be Kenyans that that kind of degrading choice would present itself as the only choice.

Kenya is, however, it is true, host to a large number of refugees. Perhaps the omission is to prevent citizenship claims posed by children born of refugees while in Kenya””and thus potentially by their parents even when the possibility of return exists? But, if that is the case, under the naturalisation provisions, a documented asylum-seeker or recognised refugee who has been in Kenya for a continuous period of seven years would have the right to apply for citizenship anyway.

That one caveat aside, the Harmonised Draft Constitution’s provisions on citizenship go a long way to resolving the problems of belonging to and identification with Kenya that pertain today. Through those provisions, Kenyans will finally propel themselves into the 21st century world””which is a world far beyond the limited conception of an ethnically and racially homogenous and patriarchal single-nation state. If it were to be on those provisions alone that the referendum’s outcome was to be determined, the Harmonised Draft Constitution would and should pass.

This article was published in The East African, on 23 November 2009.

*L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC)