Introduction to the Kenya Citizens and Immigration Act 2011
The Kenya Citizens and Immigration Act No. 12 of 2011 has been described as the first comprehensive legislation to address and provide guidance on citizenship and immigration in Kenya. The legislation promised to provide not only contemporary immigration policies and practices but also concrete citizens’ rights and control and regulate the entry and exit of foreigners in Kenya.
The change in the country’s politics through the Kenya Constitution 2010 policies is one of the swift changes that has seen the policy environment in the citizenship sector changing. The context in which the citizenship constitution was made was characterized by a new environment in which Kenya had to swiftly comply with international obligations to improve the management of illegal immigrants in Kenya.
At the same time, the legislation was responding to the trend by some Kenyans to claim citizenship in foreign countries. In many ways, the Act touched on improving governance, security, and managing migration within the country in response to the surge in various migration trends worldwide.
The Kenya Citizens and Immigration Act 2011 sets out who is a Kenyan citizen and provides the mechanism for acquiring, renouncing, regaining, and how one loses Kenyan citizenship. The Act also allows Kenyans to operate on dual nationality. Though the Act is important and provides specific guidance on citizenship, one may ask whether we are experiencing a setback in the efficient and effective implementation of the legislation.
Barriers to Enforcing the Legislation
Immediately after the Act was enacted, the government raised concerns that it might not see the light of day due to a lack of resources to undertake the entire process. Among the various challenges encountered in implementing the Act are bureaucratic bottlenecks, inadequate machinery and personnel, political, social, and community attitudes towards issues of citizenship and immigration, outdated and inefficient records, legal pitfalls, infrastructure and technological challenges, diversity, and multi-ethnic dynamism, lack of stakeholder involvement, and ambiguities in the Act.
Understanding why the Act has not been effectively implemented will require a multi-disciplinary approach. Such a perspective involving legal, politico-administrative, historical, anthropological, sociological, and psychological disciplines, among others, is necessary for identifying and possibly freeing the dominant, concealed structure in terms of which we create the same effect in another way in addressing and implementing immigration, nationality rights, and policies.
Therefore, the reasons why the Act is difficult, if not impossible, to implement and administer effectively are multifaceted and interconnected. These problems cannot be disengaged from each other. Such need-based convening or current assessment of perceived constraints would no doubt provide helpful information on which appropriate implementation strategies for the Act can be designed.
Challenges Faced by the Immigration Department in Enforcing the Act
Since commencing operations in 2012, the Immigration Department has faced challenges implementing the Act. A significant challenge has been the meager human resources assigned to work amid increasing demands. The Act has magnified their responsibilities, which the Department cannot discharge effectively due to inadequate resources.
The Immigration Department contends that the Act contains many provisions, and implementing all machinery would take time, primarily due to the department’s chronic challenges. Inadequate resources have, for instance, led to infrastructure dilapidation countrywide and obsolete logistic facilities, underscoring the department’s inability to enforce the Act. The Immigration Control Services, the police wing aiding the Immigration Department, is also incapacitated and works on the whims of the estimated budget.
Therefore, the Immigration Department has an arduous task in ensuring the efficiency of the immigration sector in Kenya and the depth of its relevance. This is due to the Act’s overbearing complexity.
As an arm of internal security in charge of controlling movements in and out of the country, the immigration sector has been feeling the intensity of the prevailing xenophobic atmosphere around the world. In this respect, efforts are needed to bolster its operational guidelines to ensure that all visiting aliens do not pose any security breach to the host countries.
Another security concern has been the alarm over illegal Eastern African nationals seeking employment in Kenya. This has put the immigration sector at loggerheads with regional brokers in illegal labor trafficking. In this regard, the Department says that illegal aliens pose an extraneous burden as many seek medical attention and academic facilities in Kenya. In the abuse of human rights and the process of rendering service, the Department has had above-par cases of agents involved in human trafficking and other illegal activities. The Management Information System points to the volume of complaints received in this letter and the significant financial loss incurred due to exploitation affecting education and health policy challenges.
The Department is also ill-equipped to keep abreast of the latest trends in technology for operational safety using internet-based software. Given these challenges, there is increased policy recognition of the crucial role played by Immigration as gatekeepers in determining vulnerabilities in national security. Kenya, along with Sudan, Tanzania, Mozambique, and Zambia, is part of this insecure genre in the region.
Implications and Consequences of the Act’s Ineffective Implementation
If enforcement is weak, it may lead to grave national security and administrative risks because there will be susceptibility to non-compliance, especially for those who enter when they are not allowed entry. This illegal infiltration can create internal security risks at the strategic, operational, and tactical levels. Enforcement issues will also lead to low deradicalization processes and increase criminal and dangerous activities related to aliens, including human trafficking.
The Kenya Citizens and Immigration Act No. 12 of 2011 has been described as the first comprehensive legislation to address and provide guidance on citizenship and immigration in Kenya. The legislation promised to provide not only contemporary immigration policies and practices but also concrete citizens’ rights and control and regulate the entry and exit of foreigners in Kenya.
The change in the country’s politics through the Kenya Constitution 2010 policies is one of the swift changes that has seen the policy environment in the citizenship sector changing. The context in which the citizenship constitution was made was characterized by a new environment in which Kenya had to swiftly comply with international obligations to improve the management of illegal immigrants in Kenya.
At the same time, the legislation was responding to the trend by some Kenyans to claim citizenship in foreign countries. In many ways, the Act touched on improving governance, security, and managing migration within the country in response to the surge in various migration trends worldwide.
The Kenya Citizens and Immigration Act 2011 sets out who is a Kenyan citizen and provides the mechanism for acquiring, renouncing, regaining, and how one loses Kenyan citizenship. The Act also allows Kenyans to operate on dual nationality. Though the Act is important and provides specific guidance on citizenship, one may ask whether we are experiencing a setback in the efficient and effective implementation of the legislation.
Barriers to Enforcing the Legislation
Immediately after the Act was enacted, the government raised concerns that it might not see the light of day due to a lack of resources to undertake the entire process. Among the various challenges encountered in implementing the Act are bureaucratic bottlenecks, inadequate machinery and personnel, political, social, and community attitudes towards issues of citizenship and immigration, outdated and inefficient records, legal pitfalls, infrastructure and technological challenges, diversity, and multi-ethnic dynamism, lack of stakeholder involvement, and ambiguities in the Act.
Understanding why the Act has not been effectively implemented will require a multi-disciplinary approach. Such a perspective involving legal, politico-administrative, historical, anthropological, sociological, and psychological disciplines, among others, is necessary for identifying and possibly freeing the dominant, concealed structure in terms of which we create the same effect in another way in addressing and implementing immigration, nationality rights, and policies.
Therefore, the reasons why the Act is difficult, if not impossible, to implement and administer effectively are multifaceted and interconnected. These problems cannot be disengaged from each other. Such need-based convening or current assessment of perceived constraints would no doubt provide helpful information on which appropriate implementation strategies for the Act can be designed.
Challenges Faced by the Immigration Department in Enforcing the Act
Since commencing operations in 2012, the Immigration Department has faced challenges implementing the Act. A significant challenge has been the meager human resources assigned to work amid increasing demands. The Act has magnified their responsibilities, which the Department cannot discharge effectively due to inadequate resources.
The Immigration Department contends that the Act contains many provisions, and implementing all machinery would take time, primarily due to the department’s chronic challenges. Inadequate resources have, for instance, led to infrastructure dilapidation countrywide and obsolete logistic facilities, underscoring the department’s inability to enforce the Act. The Immigration Control Services, the police wing aiding the Immigration Department, is also incapacitated and works on the whims of the estimated budget.
Therefore, the Immigration Department has an arduous task in ensuring the efficiency of the immigration sector in Kenya and the depth of its relevance. This is due to the Act’s overbearing complexity.
As an arm of internal security in charge of controlling movements in and out of the country, the immigration sector has been feeling the intensity of the prevailing xenophobic atmosphere around the world. In this respect, efforts are needed to bolster its operational guidelines to ensure that all visiting aliens do not pose any security breach to the host countries.
Another security concern has been the alarm over illegal Eastern African nationals seeking employment in Kenya. This has put the immigration sector at loggerheads with regional brokers in illegal labor trafficking. In this regard, the Department says that illegal aliens pose an extraneous burden as many seek medical attention and academic facilities in Kenya. In the abuse of human rights and the process of rendering service, the Department has had above-par cases of agents involved in human trafficking and other illegal activities. The Management Information System points to the volume of complaints received in this letter and the significant financial loss incurred due to exploitation affecting education and health policy challenges.
The Department is also ill-equipped to keep abreast of the latest trends in technology for operational safety using internet-based software. Given these challenges, there is increased policy recognition of the crucial role played by Immigration as gatekeepers in determining vulnerabilities in national security. Kenya, along with Sudan, Tanzania, Mozambique, and Zambia, is part of this insecure genre in the region.
Implications and Consequences of the Act’s Ineffective Implementationudulent asylum seekers will benefit, thereby creating an image of illegal citizens. This aspect will complicate the government’s reporting mechanisms in immigration management. It is on this count that political leaders must be seen to be doing something, and hence, the public complaint will be biased against members of ethnic groups whose citizens are involved in crime. Continued bias and perception of non-enforcement of the law exacerbate these complaints and thereby enhance fears among the indigenous Kenyan population, along with feelings that the government is not in control.
Moreover, fears of perceived marginalization of Kenyan citizens vis-à-vis refugees and other aliens will increase. Socio-economically, because the refugee problem breeds xenophobia, any such attack on aliens via the refugees will interfere mainly with tourism, which Kenya has relied on for foreign exchange.
If, during terrorism, the public outcry is loud, and it is proved that the terrorists are aliens, such as refugees, then Kenya’s credibility with the international community that has been supportive may be eroded.
Implementing immigration and citizenship laws is always likely to send a signal to investors. They prefer to wait for determined legislative positions before making substantial investments.
The possession of outdated immigration tools explains weak enforcement. The policy entitlements in handling immigration are unclear because the entire legal framework that informs immigration management is uncertain, where the national and internationally constructed policies are shelved at ministerial or parliamentary levels.
Kenya and its government are parties to most conventions, and non-compliance can penalize Kenya internationally. Steps must be taken to address these challenges. Implementing the Act is urgent to ensure that the legal and policy areas are harmonized within the same political space.
Recommendations for Overcoming the Challenges and Enhancing Implementation
- Training and capacity building—The Immigration Department must build capacity by training staff on the Act, regulations, and SOPs in modules and through continuous professional development. Staff must be equipped with computer knowledge for better data entry and retrieval.
- Use of modern technology – The department can speed up the processing of applications, issuing documents, and enhancing record keeping. Issuing all travel permits and passes should reflect the fingerprint that belongs to a child in the passport.
- Infrastructure—The department must be equipped with modern filing systems and data storage, processing, and retrieval methods.
- Joint training on various immigration liaison officers and flagging systems for international cooperation among departments.
- Public relations/education/sensitization campaign – To make managing the process easier and enhance cooperation between different departments at the border points, all immigration personnel should be adequately aware and trained to understand the Act and its operational procedure. Public awareness of the provisions of the Act should be brought to the public through hairstyle regulation, posters, and distribution of publications on the operations of the Immigration Department.
- Simplify the legal procedure of obtaining citizenship.
- Institutional reforms—Recognizing the department’s deep leadership crisis, necessary steps should be taken per the Public Service Reform Programme to restyle the leadership capabilities in the Immigration Department.
Conclusion
In conclusion, the Immigration Department and the relevant policymakers need to relook at the broad view of the implementation process by amending the policy and legal framework. This will help address challenges, as stated above. Many changes and a working paper have been proposed to achieve this. Every effort must be made to ensure that additional legal provisions should be formulated to check corruption within the immigration administrative machinery. It is paramount to increase transparency and accountability in the department’s operations and discourage citizens from engaging in corrupt practices.
