Great societies are founded on functional families and, in Africa, this is more pronounced due to our communal nature of doing things. The ubuntu spirit of ‘I am because you are’ has its foundation on the family. In the Constitution, the Preamble captures this very well, where, as a people, we commit to nurturing and protecting the well-being of the individual, family, community and the nation.
Article 45 states that the family is a natural and fundamental unit of the society and the necessary basis of social order and shall enjoy the recognition and protection of the State. Parties to a marriage are treated as equals and an adult is free to marry any person of their choice as long as they are of the opposite sex.
The law does not give any other qualification for marriage besides being an adult and of the opposite sex. What this means, therefore, is that a Kenyan can marry any person from anywhere in the world.
Read together with Articles 27, on non-discrimination, 28, on human dignity, and 43, on social and economic rights, this shows that at no time should parties to a marriage be treated in a discriminatory manner. But this happens to be the plight of foreigners who are married to Kenyans and reside in Kenya; they do not have automatic rights to work and earn a living here.
The Kenya Dependent Pass allows them to reside in the country lawfully but the status of a dependent does not allow them to work! In fact, they are not allowed to even tend to a farm or family shop if the couple had one.
In issuing the pass, the Department of Immigration treats the spouses differently — with a male spouse of a Kenyan subjected to more scrutiny than a female one. The assumption is that the foreigner depends on their Kenyan spouse for everything and is, therefore, not allowed to work.
In the African traditions, whoever marries our daughter or son is family and acquires all the rights to belong to the new family as our in-law. The Constitution and the law have levelled the ground for every Kenyan regardless of their sex. It is, therefore, important for us to come up with a category of a visa or permit that automatically grants spouses of Kenyans, male and female, the rights to earn a living lawfully in Kenya without requiring them to apply for a work permit.
We seem to be discriminating against — and punishing — foreigners for choosing to get married to Kenyans, which lowers their human dignity.
The situation is un-African and violates the spirit of the Constitution insofar as the sanctity and importance of the family unit is concerned.
There have been arguments that granting special passes will be abused by foreigners who will come here and marry so as to get the rights to work and reside in Kenya.
While this argument may look valid, it fails the test of the law; it is not the business of the government to interfere with private affairs of Kenyans in terms of who and why they get married. It is also un-African for a man to depend on a woman; in Africa, it is the man who should provide for the family.
It also holds no water because, when two people get into marriage, how they run their affairs is not subject to government paternalism as long as it is within the law.
Every Kenyan is entitled to a family under Article 45 and, once they get a spouse, they are free to live anywhere, including Kenya. Parties to a marriage have equal rights and no one discriminated against or their dignity lowered. The foreign spouse of a Kenyan should have the right to work on the basis of their marriage and not have to apply for a separate restrictive status to allow them work as is the case.
The spousal visa/permit should be processed with ease and in reasonable time to facilitate the family to settle down and get means of sustaining themselves in Kenya through productive work. This will help in harnessing the skills of the non-Kenyan spouses who have capacity and qualifications to contribute to the country’s economy. Many countries globally allow spouses of their citizens/residents to work and many Kenyans abroad are beneficiaries of these arrangements.
Immigration should rectify the anomaly by coming up with a category of passes or permits that allow spouses of Kenyans to work or do business without being subjected to further bureaucracies. They could, perhaps, separate the Dependent Pass to be for children and introduce another category whose net effect will be to allow spouses of Kenyans to work freely in the best interest of the family, children and the society at large.
Mr Mucee, practice leader, Fragomen Kenya Lt, is a communication and immigration consultant and law student at the University of Nairobi. [email protected]