Yes, that’s right: In the purest interpretations of foreign relations law, as applied to Britain and Kenya, Mazi Nnamdi Kanu is technically speaking, still in Kenya.
Dual national or not, Kanu departed Britain and travelled to Kenya as a British citizen and Kenya admitted him as such. That’s the starting point.
So, after his admission to Kenya, it arises that Kanu must be expelled from Kenyan soil (with or without due process), the next natural and legal thing to do is for Kenya to expel him to Britain, not Nigeria. Choosing to expel him to Nigeria means that he could’ve also been expelled to any other country than Nigeria.
Why? Because Kanu presented himself to Kenya as a British citizen, not a Nigerian citizen and not even a dual citizen. In international law, it was clearly a three-way immigration contract between Kanu, Britain and Kenya. Nigeria was not a party to it; and Nigeria was never in reckoning at the Kenyan port of entry when Kanu presented himself for admission. Lawyers call it privity of contract and it is inviolable.
Further, counting from the time of Kanu’s abduction to his infamous rendition, Kenya saw no other travel document that could’ve attributed any nationality to Kanu other than that of Britain. Or, was Kanu admitted to Kenya on a Nigerian birth certificate?
So, it’s dubious that Kenya attributed Nigerian citizenship to Kanu merely because those that sponsored the abduction and rendition presumably told Kenya that Kanu was borne in Nigeria. What about the credible claims (in public domain) that Kanu had renounced his Nigerian citizenship? If place of birth should count, then renunciation should also count.
Put another way, unless Kenya was shown Kanu’s Nigerian birth certificate, it is expected to presume Kanu as a British citizen only. After all, beyond a birth certificate, a passport is the next best proof of citizenship. Verbal assertions of place of birth is, as a matter of immigration and nationality law, an insufficient proof of citizenship.
Nonetheless, if Kenya was in any doubt as to where Kanu should be expelled, it should have resorted to the competent international laws on point.
The most obvious of such laws is codified at Article 5 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Law, which states that: “Within a third State, a person having more than one nationality shall be treated as if he had only one. A third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected”.
As can be seen from above, Kanu was required to meet one of two conditions in order to be treated by Kenya ‘exclusively’ as either a citizen of Nigeria or Britain.
So, let’s put Kanu into what the Hague Convention says and see how he comes out.
Fact: Kanu is 53 years old. Out of this, he has spent some 30 years in Britain and 23 years in Nigeria. His wife and children are domiciled in Britain and they are British citizens, either by birth or naturalization. Kanu has his home in Britain and pays his taxes there.
Another fact: Kanu’s main occupations - Radio Biafra and IPOB - are corporate citizens of Britain in good standing, both having been duly registered in Britain. And Kanu runs both of them from British soil.
So, you can easily see from above that Britain is where Kanu is ‘habitually and principally resident, as well as the country with which, in the circumstances, he appears to be in fact most closely connected’.
Thus, Kenya (being the third country) should have treated Kanu exclusively as a British citizen because, even as the Hague Convention required Kanu to meet one of two conditions, he actually over-qualified by meeting both conditions.
Therefore, as a strict matter of foreign relations law, as applied to Britain and Kenya (minus Nigeria), Kanu is technically still in Kenya. Why? Because Kenya was the last country in which Kanu - a bonafide British citizen was lawfully admitted.
In other words, subsequent to his admission to Kenya, if Kanu desired to depart Kenya, the only country he could have legally departed to was Britain, not Nigeria. Why? Kenyan immigration would not have allowed Kanu to depart to Nigeria without him presenting either a Nigerian passport or a Nigerian visa.
In view of the foregoing, the next best steps for Britain to take, going forward, is to ask Kenya to account for the whereabouts of her citizen, Nnamdi Kanu, last seen in Kenya as of June 19th, 2021 as her Majesty’s subject and a free citizen of Britain, not a criminal suspect.
Once Britain sits up, Kenya - whether complicit or not - would begin to realize the true legal and diplomatic implications of failing to protect a bonafide British citizen who made his last lawful immigration stop on Kenyan soil. And Nigeria will also begin to realize that Kanu’s presence in Nigeria is unlawful and unsustainable.
Ejimakor is a Special Counsel to Mazi Nnamdi Kanu