- East Africa Law Society Calls for Lawful, Non-Discriminatory Enforcement in Kenya
The East Africa Law Society has raised concerns over Kenya’s enforcement measures targeting foreign nationals engaged in small-scale trading and hawking, warning that their implementation could undermine confidence in the East African Community’s Common Market if nationality becomes a basis for adverse treatment.
In a statement issued in Arusha on September 7, the regional lawyers’ body said it had taken note of a directive announced by Kenyan President William Ruto concerning foreign nationals engaged in small-scale trading and related commercial activity. It said reports of anxiety among Burundian and other EAC citizens, including nationals seeking consular assistance and travel documentation in Nairobi, warranted careful attention because such measures could affect livelihoods, security and confidence in regional integration.
EALS also acknowledged subsequent clarification by Kenyan authorities that foreign nationals with the requisite documentation remained entitled to live and work in Kenya and that enforcement would take account of Kenya’s obligations under the EAC framework. The society welcomed that clarification but said it was important that the position stated by the authorities was reflected consistently in implementation.
The organisation stressed that Kenya retains the sovereign authority to regulate economic activity, enforce immigration and licensing requirements, collect taxes and apply labour laws. Its concern, however, is that those powers must be exercised within Kenya’s constitutional and regional legal obligations rather than through measures that treat nationality itself as evidence of illegality.
The legal argument centres on the Treaty for the Establishment of the East African Community and the Common Market Protocol. EALS noted that the Treaty commits Partner States to good governance, the rule of law, human rights and the free movement of labour, goods, services and capital, while also recognising rights of establishment and residence within the regional framework.
The Common Market Protocol goes further by requiring non-discrimination against nationals of other Partner States on grounds of nationality. It also provides for the free movement of citizens and workers and recognises the right of nationals of one Partner State to establish and pursue legitimate economic activity in another, subject to applicable domestic laws and permitted limitations.
EALS therefore argues that a Burundian, Ugandan, Tanzanian, Rwandan, South Sudanese, Congolese, Kenyan or other East African citizen accused of breaking the law should be dealt with according to the specific conduct involved. Where a trader lacks a required licence, violates immigration conditions, evades tax or breaches another applicable law, authorities are entitled to act, but the legal requirement and alleged breach should be clearly established and due process followed.
The society also anchored its concerns in Kenya’s Constitution. It cited constitutional provisions covering the application of international law, the rule of law, equality, human dignity, freedom of movement, fair administrative action and access to justice, arguing that enforcement decisions affecting businesses, livelihoods or residence should have a clear legal basis and provide meaningful avenues for review.
The dispute has wider significance because Kenya occupies a central position in East Africa’s movement of people, goods, services and investment. EALS warned that the way nationals of other Partner States are treated in Kenya could influence confidence in the Common Market and, potentially, how Kenyan citizens are treated elsewhere in the region.
The society also cautioned against retaliatory restrictions by other EAC states. It said disputes arising from implementation of the Common Market should be handled through regional institutions, legal mechanisms and diplomatic engagement rather than reciprocal measures that ultimately penalise ordinary citizens.
EALS has called on the Kenyan government to ensure that no citizen of Burundi or any other EAC Partner State is subjected to harassment, detention, dispossession, removal or other adverse treatment solely on the basis of nationality. It also wants Nairobi to publish the legal basis, scope and procedures governing enforcement measures affecting foreign traders and to ensure that any action is individual, proportionate and supported by appropriate safeguards.
The society further urged the Chairperson of the EAC Summit and the EAC Secretary-General to engage Kenya and the affected Partner States, and where necessary activate regional mechanisms for addressing concerns arising from implementation of the Common Market. It also called on the East African Legislative Assembly and regional bar associations to seek clarification, document credible cases of unlawful treatment and facilitate access to legal remedies where required.
EALS has offered its own good offices to facilitate discussions among governments, EAC institutions, bar associations and other stakeholders. The organisation said the dispute should be resolved within the framework of law and the principles underpinning East African integration rather than through escalating national measures.
The broader issue is whether the Common Market’s legal commitments are reflected in the day-to-day experience of people crossing borders to work, trade or establish businesses. EALS said Partner States have a legitimate right to regulate their economies and enforce their laws, but those powers must be exercised consistently with regional obligations and should clearly distinguish unlawful conduct from nationality.
That makes the current dispute an important test of the credibility of East African integration. The Common Market can only function effectively if citizens believe that the rights granted under regional treaties remain meaningful when national economic pressures intensify. EALS’s warning is therefore less about preventing Kenya from enforcing domestic law than about ensuring that enforcement does not erode the legal foundations on which regional mobility, trade and investment depend.
