According to a new article at nObama attorney Mario Apuzzo’s blog, he is. The article, Obama, the President of the U. S., Is Also Currently a British citizen advances the legal theory, cobbled together from bits and pieces of British and Kenyan law, that President Obama, who is acknowledged to have had a claim to British citizenship at birth, still retains that citizenship.
Let’s start this discussion at President Obama’s own campaign website, FightThe Smears.com, citing FactCheck.org:
“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”
The FactCheck.org article goes on to say:
British Nationality Act of 1948 (Part II, Section 5): Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.
Obama’s British citizenship was short-lived. On Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution specifies that:
1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…
2. Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.
As a citizen of the UKC who was born in Kenya, Obama’s father automatically received Kenyan citizenship via subsection (2). So given that Obama qualified for citizen of the UKC status at birth and given that Obama’s father became a Kenyan citizen via subsection (1), it follows that Obama did in fact have Kenyan citizenship after 1963. So The Rocky Mountain News was at least partially correct.
But the paper failed to note that the Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya’s Constitution specifies that at age 21, Kenyan citizens who possesses citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.
I start with the conclusion from the Obama campaign and FactCheck.org because they employ careful researchers, and are expected to get things right. Based on this analysis, we may conclude that President Obama is no longer a citizen of Kenya.
But FactCheck.org leaves a gap in the argument. It says “Obama’s British citizenship was short-lived,” but it doesn’t say why. In to this small gap rides Mario Apuzzo with the assertion that Obama never lost his British citizenship at Kenyan independence.
Several British colonies in Africa became independent in the 1960’s. The transition was accomplished through paired legislation: Independence Acts in Britain and Constitutions in the former colonies. In these acts when citizenship was defined in the new country, British citizenship ended for citizens of the new country.
1. The position before 1983
1.1 When a former British colony, associated state, protectorate etc, achieved independence within the Commonwealth, and made its own citizenship laws, a corresponding Independence Act was passed in the United Kingdom to deal with the consequences, e.g.:
• To include the name of the newly independent country in s.1(3) of the BNA 1948; and, if necessary
• To remove it from the list of protectorates etc in the current British Protectorates, Protected States and Protected Persons Order; and
• To withdraw citizenship of the United Kingdom and Colonies from certain people who became citizens of the new country
Source: British Home Office
The act for Kenya was the Kenya Independence Act (1963). Unfortunate for this analysis, the section of the Act dealing with citizenship was repealed by the British Nationality Act 1981, and all online copies of the Kenya Act accessible to me have the original sections stricken. However, we can infer the contents of the Act from text written about it. Here we have an authoritative source, a legal document from the European Court of Justice.
2.6 … The Kenya Independence Act, passed by the British Parliament, removed UK and Colonies citizenship only from a person who ‘on the appointed day [the date of independence] ….becomes a citizen of Kenya’. This ensured that at the date of independence a person born in Kenya would either acquire Kenyan nationality, or would retain UK and Colonies citizenship. …
2.7 The joint provisions of Kenyan and UK law thus envisaged that all those who had previously been UK and Colonies citizens would either acquire Kenyan nationality, or would retain UK and Colonies citizenship…
There is also this record of Parliamentary debate:
Mr. David Steel: … In 1963, we were negotiating independence for Kenya. The Government of the day decided to give the Asian community a choice. They said, “For two years, you will have an option; you can either opt to become a citizen of Kenya or you can retain your British nationality status, with all the rights which that involves”. If it was the intention of the right hon. Member for Streatham to withdraw the right of free entry from the Asian, African and the European populations–”the African population were automatically Kenya citizens–”it should have been made clear beyond doubt in the 1963 Act that these rights of citizenship were being withdrawn.
We see through the FactCheck.org analysis that Barack Obama did become a citizen of Kenya on the date of independence, and hence on that date he lost his Citizenship of the United Kingdom and Colonies (CUKC). So therefore, on 12th December, 1963, Barack Obama ceased to be a British citizen.
It would be convenient to end the story at this point; however, the Kenya Independence Act section referenced above was, as I said earlier, repealed by the British Nationality Act 1981. So while Obama certainly lost his CUKC citizenship in 1963, did he get it back in 1981 (while he was traveling in Pakistan on his US passport)?
The relevant section of the British Nationality Act of 1981 is:
35. Circumstances in which British subjects are to lose that status.
A person who under this Act is a British subject otherwise than by virtue of section 31 shall cease to be such a subject if, in whatever circumstances and whether under this Act or otherwise, he acquires any other citizenship or nationality whatever.
[Section 31 deals with citizens if Ireland.]
Also please review additional substantive argument of the issue in the comments that follow, regarding the fact that the British Nationality Act of 1981 repeals the section of the British Nationality Act of 1948 under with Obama gained British citizenship in the first place.
So in conclusion, Barack Obama is not a citizen of Kenya nor of Britain.
A generous contributor has provided a link to the original text of the Kenya Independence Act (1963). The operative section says:
(2) Save as provided by section 3 of this Act, any person who immediately before the appointed day is a citizen of the United Kingdom and Colonies shall on that day cease to be such a citizen if on that day he becomes a citizen of Kenya.
That’s all fine, but it turns out that there is another kind of British Citizenship that Obama retained for a few more years, “Commonwealth citizenship.” Read the continuing saga in this article: