The East Africa Law Society (EALS) has urged the Kenyan government to ensure that enforcement measures targeting foreign traders do not discriminate against citizens of other East African Community (EAC) member states, warning that the actions could undermine confidence in the regional Common Market.
EALS said reports of anxiety among Burundian and other EAC citizens in Kenya, including a reported increase in Burundian nationals seeking consular assistance and travel documentation in Nairobi, should be treated as a matter of regional concern. The law society’s position follows a directive by Kenyan President William Ruto concerning foreign nationals engaged in small-scale trading, hawking and related commercial activities in Kenya.
In a statement issued in Arusha, Tanzania, on September 7, EALS President Ramadhan Abubakar said Kenya has the right to regulate economic activity and enforce its domestic laws, but must do so within its constitutional and regional obligations. “Kenya has a legitimate interest in protecting Kenyan traders and ensuring compliance with Kenyan law. Citizens of other Partner States also have rights and legitimate interests under the EAC framework. Both considerations can and must be accommodated within the law,” Abubakar said.
He said enforcement should be based on individual conduct rather than nationality, arguing that a person’s citizenship should not automatically be treated as evidence of illegality. “A person alleged to have breached Kenyan law should be dealt with based on the applicable law and the circumstances of the individual case. Nationality should not, in itself, be treated as evidence of illegality,” the statement said.
EALS noted that Kenyan authorities had subsequently clarified that foreign nationals with the requisite documentation remain entitled to live and work in the country and that enforcement would take into account Kenya’s obligations under the EAC framework. The organisation welcomed the clarification but urged authorities to ensure that the stated position is consistently reflected in enforcement.
Under the EAC Treaty and Common Market Protocol, EALS said citizens of Partner States are entitled to various rights relating to the free movement of persons, labour, services and capital, as well as establishment and residence. The law society cited provisions of the EAC Treaty requiring Partner States to uphold good governance, the rule of law, social justice and human rights, while also obliging them to honour their Treaty commitments.
It also pointed to the Common Market Protocol’s provisions on non-discrimination based on nationality and the right of citizens of Partner States to engage in legitimate economic activities, subject to lawful limitations. However, EALS stressed that the Common Market does not exempt foreign nationals from complying with the laws of the country where they operate.
“Where a person is operating without a required licence or permit, breaching applicable immigration conditions, evading lawful taxation or otherwise violating Kenyan law, the competent authorities are entitled to take appropriate action,” the statement said. “The legal requirement should be clear; the alleged breach should be established, and the prescribed legal process should be followed. The same principle should apply regardless of nationality.”
Abubakar said the issue had implications beyond Kenya’s domestic economic policy because of the country’s central role in the movement of people, goods, services and investment across the region. “The strength of regional integration is tested most clearly when legitimate national interests and regional commitments come into tension. This is one such moment,” he said.
EALS also warned against retaliatory measures by other EAC Partner States, saying disputes involving one member country should not trigger reciprocal restrictions that affect ordinary citizens. “A dispute arising in one Partner State should not become a cycle of reciprocal restrictions affecting ordinary citizens,” the organisation said.
The law society called on the Kenyan government to clearly publish the legal basis, scope and procedures governing enforcement against foreign nationals engaged in small-scale trading, hawking and related commercial activities. It also called for enforcement measures to be applied individually, fairly and proportionately, with safeguards including notice, reasons for adverse decisions, access to legal assistance and avenues for judicial or administrative review.
EALS further called on the EAC Summit Chairperson and the EAC Secretary-General to urgently engage Kenya and affected Partner States and, where necessary, activate regional mechanisms for addressing concerns arising from implementation of the Common Market. It urged the East African Legislative Assembly to seek clarification on the implementation of the Common Market commitments and called on bar associations across the region to document credible cases of unlawful or discriminatory treatment and facilitate access to legal remedies.
EALS said it was ready to facilitate engagement among governments, EAC institutions, bar associations and other stakeholders to resolve the concerns within the framework of law and East African integration. “The integrity of the Common Market depends upon that distinction,” Abubakar said, referring to the need to distinguish between unlawful conduct and nationality.
He added: “East African integration will ultimately be judged by whether its legal commitments are reflected in the everyday experience of its citizens: whether they can cross borders, work, trade and establish themselves in other Partner States with confidence that they will be treated according to the law and the circumstances of their individual cases.”-URN. Give us feedback on this story through our email: kamwokyatimes@gmail.com
