High court has temporary suspended a section 8(4) of the Immigration Act that punishes citizens for failing to disclose their dual citizenship.
Justice James Makau suspended Section which prescribes a fine of 5 million, three years’ imprisonment, or both, if one fails to disclose this status within three months of acquiring it.
Makau issued the orders after billionaire Humphrey Kariuki Ndegwa the owner of Africa Spirits Limited who is under probe of evasion of taxes amounting to Sh3 billion petitioned the court seeking to declare section 8 (4) of Kenya citizenship and immigration act unconstitutional on grounds that it is oppressive, unjust and unreasonable.
“I have considered the application by the petitioner(Kariuki) and the injury he is going to suffer l hereby temporary suspend and stay the continued implementation of section 8(4) of Kenya citizenship and immigration act against the him or any other Kenyan citizen in Kenya or in diaspora who has acquired dual citizenship pending inter parties of the case,” ordered Justice Makau.
The orders means that Kariuki will not be arrested or charged in court fro failure to disclose he has dual citizenship pending the conclusion of the case he has filed in court challenging the law on dual citizenship.
Kariuki who also holds a Cypriot passport since May 2016, in his court documents claims that Section limits freedom of movement as provided by the Constitution.
He further alleges that the law provides no defence or an exception if the stipulated time frame of three months upon getting the second citizenship elapses.
Kariuki says he was not aware that as a Kenyan citizen he was supposed to disclose his dual citizenship within three months of acquiring the same a condition not subjected to foreign nationals.
The businessman says also the penalty under the section as stiff, arbitrary, oppressive and unjustifiable since it involves an administrative issue of disclosure that can be solved through less restrictive means.
Documents filed in court, Kariuki says he was not aware that as a Kenyan citizen he was supposed to disclose his dual citizenship within three months of acquiring the same a condition not subjected to foreign nationals.
He adds that when he became aware, he immediately filed a Form 3 as required by law but on an attempt to present the same to the director of immigration services, he has been threatened with prosecution.
Kariuki say he has never kept his dual citizenship as he has repeatedly and with knowledge of the immigration services used his Cypriot passport while traveling in and out of Kenya for business purpose and the same has been authenticated by the official immigration stamps over 19 times, without questions being raised.
“The underlying act of obtaining dual citizenship is constitutionally ordained with no conditions and the same cannot be taken away or threatened by an inferior law as section 8,” he says in his court papers.
He says many countries deny visas to persons who have been convicted of any criminal offence and hence section 8 of the act is arbitrary.
“Strict and absolute liability offences and penalties are usually reserved for serious and grave offences and not administrative issues like disclosure of dual citizenship,” he adds.
He says most Kenyans who have acquired citizenship of other countries are afraid and apprehensive of entering Kenya, going by the punishment stipulated in the act.
He claims that obtained the Cyprus citizenship in 2016 for purposes of trade and business.
Kariuki says that if him and other Kenyans holding dual citizenship fail to report the same within three months, they are deemed to have committed an offence and are liable upon conviction to a fine not exceeding shs5 million or imprisonment for a term not exceeding three years.
He says both the constitution and the Kenya citizenship and immigration act does not provide any procedure to be followed by a Kenyan citizen by birth when seeking or obtaining a foreign citizenship.
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