The National Assembly approved her as South Korea ambassador on condition she renounces her American citizenship.
Ms Mwinzi’s parents were teachers, who taught both in Kenya and the US. Her mother, Mary Christine Geil, was American.
Ms Mwinzi’s lawyers argue that this insistence is illegal given that her position is not a State office and that she cannot be forced to abandon citizenship acquired by birth.
Kenya’s ambassador-nominee to South Korea, Ms Mwende Mwinzi, is suing to have Parliament stopped from forcing her to renounce her US citizenship before she takes up the job.
In a case that could determine how Kenyans in the diaspora can get government jobs in future, Ms Mwinzi, whom the National Assembly approved for the job but said she must first give up her US citizenship, says it would be a violation of her rights to be forced out of something she didn’t choose.
The key question in the case filed last evening at the Constitutional and Human Rights Division of the High Court is whether persons born of Kenyan parents abroad should relinquish their foreign nationality in order to be allowed to serve in the government.
“My US citizenship was acquired by birth and as such, my citizenship or the process of opting in was a consequence of circumstances out of my control,” she argues in an affidavit.
“I did not participate in the decision to be born in the US and I cannot ‘opt out’ of that decision. Article 78(3) (b) would only be applicable to people who opted in by applying for citizenship and renunciation would be the process of ‘opting out’,” she argues, referring to the law that exempts people who cannot opt out of dual nationality such as those who acquired it by birth.
Foreign Affairs Cabinet Secretary Monica Juma and Attorney-General Kihara Kariuki have been listed as respondents.
The case could also be key in determining whether Parliament is supposed to stop at approving or disapproving candidates, or if it can include conditional approvals for nominees. Ms Mwinzi’s lawyers, Tom Ojienda & Associates, argue that the National Assembly has no power to add conditions to approved candidates
“Nothing would have been simpler than disapproving her nomination from the onset but they did not. The National Assembly deemed her qualified and went ahead to confirm this by swearing her in just like the other nominees.
“The National Assembly should therefore be stopped from putting a condition on the executive and the President’s role of picking its nominee. The condition that the petitioner is to be appointed only on condition that she renounces her dual citizenship is unconstitutional, illegal and void,” they argue.
President Uhuru Kenyatta nominated Ms Mwinzi on May 2 to be Kenya’s Ambassador to South Korea.
She was to replace Mohamed Abdi Gello, who had served in Seoul since the Mwai Kibaki days.