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Hundreds of Burundian Nationals at the Burundi Embassy along Denis Pritt road, Nairobi after President William Ruto issued a short notice to foreign nationals working in the country without work permits to leave.[Kanyiri Wahito, Standard]
There is something profoundly revealing about the public controversy now unfolding around President Ruto's remarks concerning foreigners in Kenya. The immediate instinct has been to locate the controversy within immigration law, who entered lawfully, who has overstayed, who has a permit, who does business without authorisation, and who is entitled to remain. Those are legitimate questions.
But they are not the first constitutional questions. The more unsettling question is this: When a foreigner walks onto Kenyan soil, does the Constitution temporarily become less of a constitution? Recent reports of Burundi nationals and other East Africans facing hostility, including attacks on people and businesses, should force Kenya to confront that question with unusual seriousness. A foreigner may have an immigration problem. That does not make them a constitutional non-person to be precise.
The architecture of the Constitution is remarkably deliberate on this point. Article 20 provides that the Bill of Rights applies to all and binds all State organs and all persons. More importantly, many of its guarantees are deliberately expressed in the language of “every person” or “a person”, rather than “every citizen”. This is significant phraseology in the constitutional design. Article 260, in defining “person”, is equally instructive. The constitutional language is capacious; a person includes an individual and other recognised legal entities. Read together, these provisions establish a principle that is easy to obscure in the heat of immigration politics: constitutional personhood is not synonymous with Kenyan citizenship.
