For close to two decades, *Rosanna Mwangi, a legal researcher, had nursed dreams of returning to her homeland.
When a chance to actualise that dream finally presented itself in 2010, in the form of a Constitution that promised a new dawn for Kenya, Rosanna jumped at the opportunity to be part of that change.
Her conviction to return to Kenya was fuelled by a successful application for a job in the country just months after the new Constitution had been passed. The more she mulled over the thought of quitting her corporate job in a developed country and relocate to a developing one, the more convinced Rosanna was she would make a greater contribution to a country she left when her father was sent into political exile.
While in the US, Rosanna married an American national. The couple has been together for ten years now and has two children.
“We decided to move our family to Kenya when I got the job and also saw it as a great opportunity for our children to experience a different culture. We thought provisions in the new Constitution would make it easier for my husband to get the necessary documents because I am Kenyan,” she says.
But what began as a journey of promise and hope for the couple, both in their early 40s, has turned into a nightmare.
To legally stay in Kenya, Rosanna’s husband was required to apply for a Dependant’s Pass from the Immigration department; a quest the couple says has been a daunting and frustrating experience.
Requirements for application of a Dependant’s Pass include that the applicant be a Kenyan citizen. They must also present additional proof of their relationship by presenting copies of birth certificates or marriage certificates for immediate family members. In Rosanna’s case, therefore, she would be making the application on behalf of her husband who is a non- Kenyan. Once granted, the Pass, issued at Sh5,000 per year, would allow Rosanna’s husband to stay in the country for at least two years, as a ‘dependant’ of his wife. The Pass, however, does not allow him to be employed and he would have to make a separate application to be considered for such under different categories of work permits.
The other option for such a spouse to stay in the country, albeit for shorter periods of time, would be for them to apply for a three month Visitors Visa upon entering the country. This can be renewed, upon expiry, for another three months, after which the passport holder must leave the country.
It has been about one and a half years since the couple first applied for a Dependant’s Pass, and the strain posed by the waiting and constant shuttling, is beginning to take its toll. While her children were granted Dependancy Status almost immediately, their father hasn’t been as lucky. What disturbs Rosanna even more is that within that time, two male Kenyan colleagues married to foreigners have had no hitches accessing passes for their wives.
According to Rosanna, the reasons given for reluctance in issuance of the pass are ‘unjustified’ and border on the absurd to hilarious, were it not for the gravity of the matter.
“Immigration officials have openly told me that naturally, a man cannot be dependant on a woman. I have also been told that issuance of Dependant’s Passes to foreign nationals married to Kenyan women could pose a security risk to the country because of instances where some of them have fallen foul of the law. Another officer once asked me why my husband would quit his job in the US to come and live in Kenya,” she says.
When the couple cited provisions in the Constitution and Citizenship and Immigration Act, the official brushed them off telling them that the provisions were not a guarantee that applicants would get the pass.
“We have provided all the necessary documentation to prove we are legally married. I have no problem with authorities vetting couples to weed out cases that may not be genuine, but I think it’s unfair to deny the spouse of a Kenyan woman the pass, based on the thinking that only women should be dependent on men,” she says.
Rosanna is concerned by what she alleges is ‘open bias’ by the Immigration department towards Kenyan women married to foreigners in issuance of the passes, and challenges the authority to come clean on whether it is Government policy to deny this document to foreign spouses of Kenyan women. And she is not alone.
Katiba Institute’s Waikwa Wanyoike says he has encountered at least seven couples that have had challenges similar to Rosanna’s. In all these cases it is Kenyan women whose husbands are foreigners that have had problems accessing Dependant’s Passes for their spouses. Katiba Institute is a body that promotes the understanding and implementation of the Constitution.
Wanyoike, who participated in drafting immigration laws that overturned provisions under the old constitution that only allowed foreign spouses of Kenyan men to get Dependant’s Passes, says it is absurd and retrogressive to subject Kenyan women to such discrimination despite it being outlawed by the Constitution.
“The Constitution clearly defines who a Kenyan citizen is and provides no distinction based on gender as upheld by Articles 27. Article 10 of the Constitution also binds all public officers to abide by its provisions. The issue of granting Kenyan women married to foreign nationals’ privileges similar to those accorded Kenyan men married to non-Kenyans was extensively discussed during drafting of the Constitution where it was decided that both get equal rights. But based on the information we have been getting, it appears the Immigration department has been reluctant to shift its attitude in implementing some aspects of the Constitution,” says Wanyoike.
Wanyoike says the cases he has received point to a systemic problem that can be addressed by the affected women filing a Class Action suit, under the Bill of Rights.
He says Section 13 of the Citizenship and Immigration Act, contemplates citizenship by registration, including to persons married to Kenyan nationals, regardless of their gender. The Act also provides for dual citizenship while Article 11 of the same legislation entitles persons married to Kenyan citizens for at least seven years to apply for citizenship.
“The assumption under the old constitution was that one could only gain Kenyan citizenship through marriage where a non-Kenyan woman was married to a Kenyan man. This was based on an archaic concept that was disabused through the new constitution that now makes it possible for a Kenyan woman to confer citizenship to her spouse,” says Wanyoike.
Rosanna says the couple is contemplating moving back to the US, but wonders what to tell their children about why they had to leave.
Inquiries to the director of Immigration, Jane Waikenda, on the matter only yielded a curt response. “I have no comment on the matter,” she said.
But an officer working at the department absolves it from blame saying the couple involved in the above case was being ‘economical with the truth’. He says the department also has a responsibility to ‘protect’ Kenyan women from foreign nationals that may only enter into marriage as a way of staying in the country.
“We have had cases where male spouses have been issued Dependant’s Passes, only for them to abandon their Kenyan wives once they have gained legal status,” he says. The officer argues there are many factors to be considered before issuing passes to foreign nationals, and denies the department is biased towards foreign spouses of Kenyan women.
But Rosanna discounts these arguments and says what Kenya needs is an effective vetting system. “This has worked in other countries, why can’t it be done here?” she poses.