In a big win for the decriminalisation of administrative offences, the High Court has declared section 8(4) of the Kenya Citizenship and Immigration Act unconstitutional in High Court Constitutional Petition 121 of 2019.
In this case, the Applicant held dual Kenyan and Cypriot citizenship. He had held the latter citizenship for about three years when he was arrested for having failed to declare he was a dual citizen. He had been unaware of the provision of law requiring him to give notice of his dual citizenship.
Section 8(4) of the Act made it a criminal offence punishable by a Ksh 5M fine or 3 years’ imprisonment or both for a dual citizen to fail to report the fact of dual citizenship. Section 8(3) requires a citizen to notify immigration authorities of the fact of becoming a dual citizen within 3 three months, failure to which the penalties in section 8(4) would be imposed upon prosecution.
While the Court found that there was good reason for the law to require notification to authorities, it held that it is unconstitutional to impose such hefty penalties for an administrative offence which does not require criminal intent to be proven. In making its determination, the Court applied Article 24 of the Constitution, which enjoins Parliament to employ the least restrictive means to achieve an administrative purpose. The Court held that criminalising the failure to notify authorities with a hefty penalty falls short of this constitutional standard.
Furthermore, section 8(5) makes it an offence to use dual citizenship for a criminal purpose which attracts a penalty similar to that for the administrative offence in section 8(4). The Court held that it is unreasonable for there to be a similar harsh penalty for an administrative offence as for a criminal offence. This decision is a major win for the decriminalisation of administrative and strict liability offences, which do not require proof of criminal intent.
