The High court in Nairobi has dismissed a case seeking to have Kenyans with dual citizenship join the Kenya Defence Forces (KDF).
The petition had been filed by activist turned Busia Senator Okiya Omtatah, who argued that the decision to bar Kenyans with dual citizenship from joining KDF was unconstitutional.
Omtatah cited Section 129 of the Kenya Defence Forces Act, which he said does not bar citizens with dual citizenship from joining the military.
The Senator added that Article 78(2) of the Constitution which restricts dual citizens from joining KDF has a rider in Article 78(3) in that it exempts any person who has been made a citizen of another country by operation of that country’s law, without the ability to opt-out.
Omtatah claimed KDF had barred all persons with dual citizenship from recruitment in their January 2021 advertisement, however, removed any references to dual citizenship in their advert released in October 2021.
He added that there’s a likelihood of such persons shifting their allegiance to other countries in instances of conflict.Guyo also noted that the court has no powers to regulate the conditions of service within KDF.
While dismissing the case, Justice Hedwig Ong’udi said the court has no power to meddle in national security issues. She said the best place to change the policy is in Parliament.
“It is my considered view that the petition invokes the political question doctrine. I say so because the issue raised will require this court to delve into the government’s political arena of national security which is not the province of the courts,” she said.
