The East Africa Law Society (EALS) has urged the Kenyan government to ensure enforcement of its crackdown on foreign traders does not result in discrimination based on nationality.
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The regional lawyers' body said the reported anxiety had included large numbers of Burundian nationals seeking consular assistance and travel documentation in Nairobi.
EALS, however, acknowledged Kenya’s right to regulate economic activity within its territory, including enforcing immigration, licensing, tax and labour laws and taking lawful measures to protect local livelihoods. It said the concern was how the measures are implemented, particularly where nationality could become a determining factor in enforcement.
“A person alleged to have breached Kenyan law should be dealt with on the basis of the applicable law and the circumstances of the individual case. Nationality should not, in itself, be treated as evidence of illegality,” EALS said.
The lawyers’ body said this principle was important both to the rule of law and to public confidence in the EAC Common Market.
Under the EAC framework, partner States have committed themselves to free movement of persons, labour, goods, services and capital, as well as the right of establishment.
EALS said the Common Market Protocol also requires partner States to observe non-discrimination against nationals of other Partner States on grounds of nationality.
However, the organisation stressed that these provisions do not exempt East African citizens from complying with the laws of the countries where they live or conduct business.
It said Kenya could take action against anyone operating without the required licence or permit, breaching immigration conditions, evading lawful taxation or otherwise violating Kenyan law.
“The same principle should apply regardless of nationality,” said the statement signed by EALS president Abubakar Ramadhan.
The organisation warned that the issue had implications beyond Kenya’s domestic economic policy, given the country’s central role in the movement of people, goods, services and investment across East Africa. It said uncertainty among citizens of other EAC Partner States could undermine confidence in the Common Market and potentially affect how Kenyan citizens are treated elsewhere in the region.
EALS is now calling on the Kenyan government to clearly publish the legal basis, scope and procedures governing enforcement measures affecting foreign nationals engaged in small-scale trading and hawking. It also wants enforcement measures to be based on identifiable breaches of law and applied individually, fairly and proportionately.
“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 or establish themselves in other partner states with confidence that they will be treated according to the law and circumstances of their individual cases,” said EALS.
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The organisation further called for affected persons to have access to appropriate safeguards, including notice, reasons for adverse decisions, legal assistance and judicial or administrative review where provided by law.
EALS has also called on the EAC Chairperson and Secretary General to urgently engage Kenya and affected Partner States and, where appropriate, activate regional mechanisms to address the concerns. It wants the East African Legislative Assembly to seek clarification on the implementation of Common Market commitments implicated by the measures.
The organisation said the integrity of the Common Market ultimately depends on distinguishing unlawful conduct from nationality.
