Part 1 of 6

In 1962, Jaramogi Oginga Odinga requested Mwalimu Julius Nyerere, then newly elected as the Prime Minister of Tanganyika, to facilitate the travel of his then 17-year-old, Aluo Raila Amolo Odinga, to East Germany. Raila travelled from Dar-es-Salaam by ship to Egypt, then to East Germany using a Tanzanian passport. After Daniel arap Moi released him from detention without trial in 1991, Raila, once again, fled Kenya, this time to Norway, using a Ugandan passport.

After his release from political detention in 1982, Professor Ngugi wa Thiong’o, too fled Kenya to the United Kingdom, using a Ghanaian passport.

In June 2003, Koigi Wamwere brought to Kenya a 74 or 84-year-old Ethiopian peasant, Lemma Ayanu and claimed that the Ethiopian was a Mau Mau hero. Mzee Ayanu had no Kenyan national identity card. He had no Kenyan passport – even a perforated one. He had no Kenyan birth certificate.

Yet, the “authorities” processed him at the immigration and customs desks at the Jomo Kenyatta International Airport and granted him entry.

Deemed a Kenyan by birth, the “passport” Mzee Ayanu had used to board the plane from Addis Ababa, Ethiopia, to Kenya wasn’t relevant then as it isn’t now in relation to me or any other Kenyan.

Mzee Ayanu was booked in 5-star hotels, chauffeured and feted in Kenya on tax payers’ tub by the Mwai Kibaki government for months until he demanded to be returned to Ethiopia. He wasn’t sedated and forcefully returned to Ethiopia unconscious!

*Why do I give these examples?*

In order to demonstrate that a travel document or passport one uses to flee persecution or to travel out of or into a country is not “proof of citizenship.” Nor does it give the “authorities” within the country one enters legal excuse or justification to subject anyone or the traveller to cruel, inhumane and barbaric treatment.

Virtually every single day, hundreds of undocumented foreigners and Kenyans arrive in Kenya using airplanes, boats, buses, bicycles, camels and/or on foot. Upon their arrival, they are not detained incommunicado, tortured and denied access to their lawyers, physicians or family members.

They are not kidnapped, tortured, sedated and forcefully removed from Kenya unconscious. Nor are they assaulted, shoved, their clothes torn and guns placed on their heads to sign documents to “regularise” their entry.

Upon entering or reentering Kenya, Kenyan citizens are not required to justify why or how they left or intend to (re)enter Kenya. All they need to prove is their citizenship. This may be done using a genuine birth certificate, national identity card or a passport or through non-documentary means as the Maasai and other cross-border communities do on a daily basis.

Kenyans – whether naturalised or citizens by birth – are only required to demonstrate that they are bona fide citizens of the Republic of Kenya.

In societies governed by the rule of law, those accused of having broken laws and regulations are arrested, charged and tried by courts and tribunals of competent jurisdiction. In such judicial proceedings, “the government” is nothing but a “party” to the proceedings just like the accused persons.

In a court of law, everyone must be treated equally, the process must be administered fairly, and only material credible evidence and applicable relevant law used in determining guilt or innocence. Courts ought not to have regard to force, power or propaganda.

On arrival to Canada, for instance, Canadian citizens only make customs declarations. Canadian citizens don’t have their passports stamped when entering or leaving Canada, nor do they go through immigration. Only foreign visitors are required to go through immigration procedures because their stay in Canada would be subject to specific limitations.

Sweden, Norway, Denmark and many other countries do the same.

On arrival at various ports of entry, Kenyan citizens, similarly, are not required by law to produce – for stamping or otherwise – passports or travel documents that were not issued to them by the Kenyan state.

In other words, Kenyans are not required to produce foreign passports even if they have used the same to board flights previously because the function of an immigration desk at an airport is not to vet the citizenship of Kenyans. Nor is it to restrict the movements of Kenyan citizens.

Kenyans have a positive constitutional right to leave and return to Kenyan whenever they deem it fit without any restrictions or conditions.

Article 16 of the Constitution of Kenya, 2010 stipulates that “A citizen by birth does not lose citizenship by acquiring the citizenship of another country.” The only exception is where one has renounced his or her citizenship. Renunciation of citizenship is a legal process which is evidenced by written instruments.

As I have repeatedly asserted, those claiming that I had renounced my Kenyan citizenship by birth must produce credible documentary evidence of the alleged renunciation, which I have vehemently denied.

He who makes an allegation must prove it!

A passport is merely a travel document that does not vest or prove citizenship.

Those purporting to resuscitate some nebulous but dead and buried independence constitution in order to attempt to limit my rights should be reminded of an elementary principle of law, which was first formulated in Article 8 of the French Declaration of the Rights of Man of 1789 and encapsulated in the Latin maxim, nullum crimien sine lege, nulla poena sine lege.

This principle was also enunciated in 1789 in Article 1, section 9(3) of the American Constitution, prohibiting ex post facto laws.

In other words, the tyrants cannot RETROACTIVELY withdraw or cancel my citizenship, passport, national identity card or constitutional and legal rights that inhere today under the current constitution by magically attempting to RESCUSCITATE provisions of a repealed or revoked constitution.

That’s the law.