EALS Warns Kenya: Burundian Trader Harassment Violates EAC Protocol

• The East Africa Law Society (EALS) has warned Kenya against the harassment and detention of Burundian nationals and other EAC citizens following a directive by President William Ruto.
• President Ruto's September 2 directive targeted foreign nationals in small-scale hawking and trading, with enforcement beginning on September 7, prompting many Burundian nationals to leave Kenya.
• The EALS emphasized that Kenya must adhere to its constitutional and EAC treaty obligations, citing specific articles from the EAC Treaty and Common Market Protocol.
• The society called for transparent enforcement procedures, individual and proportionate application of measures, and access to legal assistance for affected traders.
• EALS urged regional bodies and bar associations to intervene, document abuses, and pursue remedies, including through the East African Court of Justice.

The EALS statement explicitly cited Articles 6, 7, 8, 76, and 104 of the Treaty for the Establishment of the East African Community, alongside Articles 3, 7, 10, and 13 of the Common Market Protocol, emphasizing the legal framework governing the rights of Burundian nationals in Kenya and other EAC citizens.

The East Africa Law Society (EALS) has voiced significant concern regarding a directive issued by Kenyan President William Ruto, which has led to the harassment and detention of Burundian nationals and other East African Community (EAC) citizens. The EALS, in a statement released from Arusha, Tanzania, on Monday, September 7, specifically addressed President Ruto's order targeting foreign individuals engaged in small-scale trading and hawking within Kenya.

President Ruto's directive, announced on September 2 following a meeting with Micro, Small and Medium Enterprises representatives at State House, Nairobi, mandated government action to prevent foreign nationals from participating in these specific economic activities. He articulated that while foreign investment requiring substantial capital remained welcome, non-citizens should not compete with Kenyans in sectors like hawking and retail. Enforcement of this new policy commenced on September 7, immediately triggering a palpable sense of anxiety among Burundian citizens in Kenya.

The immediate aftermath saw a rush by Burundian nationals to depart Kenya, with visual evidence showing large groups gathered with their belongings at Nairobi's Machakos Country Bus Station and the Malaba border crossing with Uganda, all seeking transport home. Many also queued at the Burundi Embassy in Nairobi to obtain necessary travel documents. In response to the unfolding situation, the Burundian government dispatched buses to Kenya and began issuing free laissez-passer documents through its Nairobi embassy to facilitate the return of its citizens who wished to leave. The EALS noted with alarm the reports of distress among Burundian citizens and the increased demand for consular assistance and documentation in Nairobi.

In its comprehensive nine-point statement, signed by EALS President Ramadhan Abubakar, the society underscored that measures impacting economic activity carry profound consequences for livelihoods, personal security, dignity, and overall confidence in the regional integration project. While acknowledging Kenya's sovereign right to enforce its immigration, licensing, tax, and labor laws, the EALS firmly asserted that such authority must always operate within the confines of the Kenyan Constitution and the nation's treaty obligations as an EAC Partner State.

The EALS statement explicitly cited Articles 6, 7, 8, 76, and 104 of the Treaty for the Establishment of the East African Community, alongside Articles 3, 7, 10, and 13 of the Common Market Protocol, emphasizing the legal framework governing the rights of Burundian nationals in Kenya and other EAC citizens. A critical point raised was that nationality alone should not be construed as evidence of illegality, highlighting the principle of non-discriminatory treatment central to the EAC framework. The society stressed that the confidence of member states and their citizens is not merely incidental to the Common Market but forms one of its fundamental prerequisites for success and stability, directly impacting EAC Common Market Protocol enforcement.

To mitigate the ongoing situation, the East Africa Law Society statement urged Kenya to publicly disclose the precise legal basis and procedural guidelines governing enforcement actions against foreign traders. It further called for any such measures to be applied individually and proportionately, incorporating essential safeguards such as prior notice, clear reasons for adverse decisions, and guaranteed access to legal assistance for affected individuals. This approach aims to ensure due process and protect the rights of Burundian nationals in Kenya.

Beyond national-level recommendations, the EALS also formally petitioned the Chairperson of the EAC Summit and the Secretary-General of the EAC to engage urgently with Kenya and, if necessary, activate regional dispute resolution mechanisms. The society additionally called upon the East African Legislative Assembly to seek clarification on the measures being implemented. Furthermore, the EALS encouraged the Law Society of Kenya, the Burundi Bar Association, and other bar associations across the region to meticulously document instances of unlawful treatment and actively pursue remedies, including through the East African Court of Justice, to address any violations.

Despite the initial directive, Kenyan authorities have since clarified that foreign nationals possessing proper documentation retain their entitlement to live and work in the country, and that enforcement actions will indeed account for Kenya's obligations under the EAC. Concurrently, President Ruto has directed the Ministry of Investments, Trade and Industry to proceed with enforcement against foreigners involved in businesses deemed inappropriate for non-citizens, even as a legislative Bill restricting foreign nationals from certain trading activities remains under consideration in Parliament. The EALS has offered its assistance to facilitate constructive engagement between the affected governments, EAC institutions, and bar associations to resolve the dispute.

Lawyers should advise East African Community (EAC) national clients in Kenya on their rights under the EAC Treaty and Common Market Protocol, particularly concerning non-discriminatory treatment. Compliance officers must ensure their organisations' practices align with both Kenyan law and EAC obligations, monitoring for potential challenges to enforcement actions and preparing for possible litigation at the East African Court of Justice.

Source: Original reporting via scraped article