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Sep 2

Donofrio v FactCheck.org (Updated again)

Posted on Wednesday, September 2, 2009 in Citizenship, Leo Donofrio
Leo. C. Donofrio

Leo. C. Donofrio

[When I learned of Donofrio's article discussed here, I contacted FactCheck.org, and received a reply Sept. 3rd from director Brooks Jackson that FactCheck would be issuing a correction on one point discussed below in an article titled: Obama and Kenya Again. FactCheck suggests that they are tired of the whole Obama conspiracy mess, and have referred folks to another web site for more information.]

Leo C. Donofrio has challenged FactCheck.org and come out swinging.

Anyone who has been following Obama conspiracy theories and the attendant novel legal theories on citizenship will be familiar with the article by FactCheck.org, Does Barack Obama have Kenyan citizenship? from August 6, 2008. This article contains the famous quotation:

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:

immortalized by its inclusion by the Obama Campaign in its Fight The Smears web site.

Donofrio, who has made denying Obama’s eligibility to be president his own personal crusade through a failed lawsuit (Donofrio v. Wells) taken all the way to the Supreme Court, and his Natural Born Citizen his web site, has now taken issue with FactCheck.org  with a brand new article: CONFIRMED: Factcheck.org Published Bogus Fact Regarding Obama’s Kenyan Citizenship. We covered much of the same ground on this blog in my article: Is President Obama a British Citizen? But let no one deride this blog for refusing to cover the same ground over and over.

Donofrio opens his attack by planting a vague, undefined doubt:

The relationship between President Obama and Factcheck.org has been on my mind recently….

But propaganda tactics aside [Obama has no relationship to FactCheck], what is the meat of Donofrio’s complaint?

First FactCheck.org states that Obama lost his Kenyan citizenship upon reaching the age of 21. Donofrio contends that the Constitution of Kenya gives its citizens a two-year window between ages 21 and 23 to make the declaration and renunciation required to prevent automatic loss of Kenyan citizenship. My reading of the Kenyan Constitution suggests that Donofrio is right [and this has been conceded by FactCheck], and that Obama actually lost his Kenyan citizenship on August 4, 1984 (rather than in 1982 as originally stated by FactCheck.org).

What difference does that make?

It makes quite a bit of difference if you buy the rest of Donofrio’s theory. That theory rests on the fact that the British Nationality Act of 1981 went into effect in January of 1983, while Barack Obama still held dual US – Kenyan citizenship. One might well ask what the British Nationality Act of 1981 has to do with the price of beans in Poughkeepsie,  given that Barack Obama lost his citizenship in the UK and colonies (CUKC) way back in 1963 when Kenya became independent. I particularly asked that question since we had had that discussion on this blog with Mario Apuzzo as counsel for the plaintiff.

Donofrio says:

Had Obama’s citizenship expired on August 4, 1982 -  as was incorrectly stated by Factcheck.org – then the British Nationality Act of 1981 (which didn’t go into effect until January 1, 1983) would not have governed Obama’s status.

If you were a British Subject before the BNA 1981, you are now (with very limited exceptions) a Commonwealth Citizen.

So, as you can see from all of the above, the date which Obama may have lost his Kenyan citizenship creates a whole set of complex international law issues which have yet to be resolved.

Donofrio derides FactCheck.org, claiming a lack of objectivity, and goes on to say:

Obama remained a British subject from his birth and after the Kenya Independence Act went into effect in 1963, all the way up until that status changed to Commonwealth Citizen in the BNA 1981.

That statement is pretty muddled. Let’s sort it out. Barack Obama was a Citizen of the UK and Colonies at his birth (not a “British Subject” which has a technically different meaning). What was his status after the Kenyan Independence Act?

First the Constitution of Kenya Chapter 6, Section 87:

  1. Every person who, having been born in Kenya, is on llth 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:Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents was born in Kenya.
  2. Every person who, having been born outside Kenya, is on llth 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.

The corresponding legislation in the UK is the Kenya Independence Act of 1963 (KIA):

(2) Save as provided by section 3 [section dealing with certain women] of this Act, any person who immediately before the appointed day [the date of Kenyan independence] 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.

This is the crucial text from the KIA that Donofrio inexcusably omits (could it be from a lack of objectivity?), although he does cite other parts of the Act.

Next we look at another section from the Constitution of Kenya

95. (1) Every person who, under this Constitution or an Act of Parliament, is a citizen of Kenya… shall, by virtue of that citizenship, have the status of a Commonwealth citizen.”

And that’s pretty clear. Starting with Kenyan Independence, citizens of Kenya (the Obama’s included) gained the status of  “Commonwealth citizen”. Commonwealth citizen is indeed equivalent to British subject, but British Subject is not what you might expect: for example, it doesn’t include the right to vote or to hold office. Further, it makes it clear that this status is “by virtue of” citizenship in Kenya. That is, it is dependent on citizenship in Kenya.

And here folks, is where it gets deep. Since this is the crux of the argument, I’ll repeat exactly what Donofrio says:

The proof that Obama remained a British subject after 1963 exists in the Kenyan Independence Act of 1963 (KIA) which states in Section 2(1):

2.-(1) On and after the appointed day, the British Nationality Acts 1948 and 1958 shall have effect as if-

(a) in section 1(3) of the said Act of 1948 (which provides for persons to be British subjects or Commonwealth citizens by virtue of citizenship of certain countries) there were added at the end the words ” and Kenya ” ;

Now we must look at the British Nationality Act of 1948, Section 1:

1.—(1) Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in subsection (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.

(2) Any person having the status aforesaid may be known either as a British subject or as a Commonwealth citizen; and accordingly in this Act and in any other enactment or instrument whatever, whether passed or made before or after the commencement of this Act, the expression “British subject” and the expression “Commonwealth citizen” shall have the same meaning.

(3) The following are the countries hereinbefore referred to, that is to say, Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon.

According to the KIA, the words “and Kenya” are added to subsection (3) making all Kenyan citizens also British Subjects upon “the appointed day”, December 12, 1963.

Because KIA 1963 removed citizenship of the UK and Colonies to the new Kenyan citizens, 1.—(1) above does not apply, and Barack Obama did not become a “British Subject” under this clause. However, adding Kenya to the list in (3) did granted him “Commonwealth citizenship“. (One may argue the equivalence of the two, but I prefer to us the correct and historically accurate term.)

If we accept that Obama did have Commonwealth Citizenship, that citizenship would be contingent on retaining Kenyan citizenship, and that ended on August 4, 1983. That was 26 years ago.

Donofrio perhaps will claim that the British Nationality Act of 1981 repealed the section of the KIA which stripped Obama of CUKC (which it does) and he might argue then that Obama regained CUKC–and this might be true except for the fact that the BNA 1981 also repealed all of Section 1 of the BNA 1948 (the section Donofrio cites) which created citizenship in the UK and Colonies in the first place. This is the same error that Mario Apuzzo made when he asserted continuing British citizenship to Obama. (See Schedule 9 of the BNA of 1981.) So rather than re-creating British citizenship, the BNA 1981 actually abolished the basis for it.

Donofrio is demanding Obama renounce a citizenship he doesn’t have.

I believe that is all I have to say except that it looks like FactCheck.org had the right conclusions (Barack Obama is not currently a British subject or a Kenyan citizen), although they may have arrived there by the wrong path. On September 3, FactCheck.org published a correction of the 1984, 1982 date error.

Mr. Donofrio promises a new and longer article examining:

My research has discovered multiple legal mechanisms which have the potential to establish that President Obama is now a full citizen of Kenya as well as the United Kingdom, the European Union, the Commonwealth of Nations and the Republic of Indonesia. Unfortunately, information available in the public domain cannot answer these questions.

More uncertainty and doubt. Well, we’ll just have to wait to see what he says.

[I apologize for the frequent updates and rewrite of this article as I attempt to make everything exactly correct with the correct terms and citations. I thank the commenters here for their suggestions, research and criticism.]

Bring on the comments

  1. nbc says:

    What a horrible world you seem to live in. Imagination can cause one to lose track of the reality.

    Guess it all happened when Obama won the election :-)

    And yes, he was found to be eligible and per our US constitution his eligibility can now not be question in US courts.

    Those are the simple facts which you have failed to address or deny.

    And yet, the lack of standing will continue… The fact that Quo Warranto against a President is in violation of the Constitution which outlines how a President may be removed legally, is another one of your failures to comprehend US law.

    But then again, where you not the one who called the 20th Amendment not a Constitutional Amendment?

    jtx: It can – and will be – settled in a court of law … and then Obama can say “screw you – laws don’t apply to me; I’m your King don’t your realize that??? I’ll get down on my knees and you get down on your elbows … and be quick about it.”

  2. richCares says:

    I recently visited (and never again) a Birther site and they were all aglow about Sept 8 court case, finally Judge Carter will allow discovery.

    Sept 8 covers 3 motions and is scheduled for 1/2 hr, no evidence introduction nor discovery will take place.

    can someone explain the basis for the Birthers delusions, how sad they will be on Tuesday.

    it’s more than just ignorance, their hate for Obama has severely blinded their reasoning abilities. (should say lack of reasoning) There will be a lot of “I told you so” on Tuesday!

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