Counsels Ojienda, Omanga oppose National Assembly on Mwinzi dual citizenship
The High Court of Kenya is set to issue a landmark judgement next month in a case in which envoy nominee Mwende Mwinzi is seeking to stop legislators from forcing her to renounce her US citizenship before she takes up her new job.
Justice James Makau said he will deliver his judgement on November 14 noting that he already issued a temporary order, directing that the status quo with regards to her nomination be maintained pending the hearing and determination of the case.
The National Assembly has however responded to Mwinzi’s application saying that an approval is not a rubberstamp mechanism by the National Assembly.
“In this case, a specialized Committees of the National Assembly vetted the petitioner and made resolutions which were adapted by the house, it is a political process to be conducted by other arms of the government and not Judiciary,”
said Anthony Njoroge a lawyer for National Assembly.
He said that as a result, the Court should decline to adjudicate the issues in the petition because they are essentially political questions and which the constitution has assigned to other political institutions for resolution.
Njoroge added that the process of appointment itself is yet to be concluded. He told the court that the National Assembly has made its resolutions to the President, and the President must accept the resolution as advised by the National Assembly.
Njoroge told the court to determine a political question between the legislature and the executive, and the National Assembly urges the court to decline such an invitation. The court has been invited to determine whether an Ambassador is a state officer and if no whether the issue of dual Citizenship still affects her.
The court should determine whether the National Assembly can grant conditional approval of nominee and also whether the petitioner has any proprietary right to the office of Ambassador.
“An ambassador or a diplomat is a representative of the interests of a sending state. Where a person has dual citizenship, the conflict of interests is certainly a reality,”
Mwinzi through lawyers Tom Ojienda and Charles Omanga urged the court to consider Article 78 of the constitution that allowed dual citizenship for the first time.
“Ambassadors are not classified as state officers as alleged by the National Assembly lawyers,”
He added that the petitioner Mwende Mwinzi is covered in Article 260 of the constitution which indicates that ambassadors and high commissioners are not state officers.
“Mwinzi having been vetted by the parliament qualifies for an appointment and barring her violates Article 37 of the constitution and Article 47 for it went against fair administration,”
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Ojienda said that Mwinzi cannot change the fact that she was born by an American mother and a Kenyan Father and since she is not a state officer, any law cannot be applied to her.
“Mwinzi’s office is not a state office and the court should find out that, any law cannot be applied to her,
He said, Parliament violated Article 27,47 and 260 of the constitution.
“It is our submission that Ms Mwende has successfully gone through the vetting process by the National Assembly and what remains is her deployment to the Republic of Korea,”
Prof Ojienda added:
“it is the duty of the CS to deploy the successful nominees and we therefore urge this court to make orders that her rights have been violated and that she [can be appointed] to a state.
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