KNCHR: Warns Kenya Foreign Trader Crackdown Risks Rights Violations

• The Kenya National Commission on Human Rights (KNCHR) warned the government against using blanket measures in enforcing immigration and business regulations on foreign nationals, citing potential human rights violations.
• This caution followed President William Ruto's September 2 directive for the immediate closure of small businesses operated by foreign nationals.
• The KNCHR reported receiving petitions alleging threats, intimidation, and discriminatory treatment from refugee and migrant communities across several counties.
• The Commission stressed that enforcement must adhere to constitutional principles, international human rights obligations, and the EAC Common Market Protocol, emphasizing individual assessment over collective targeting.
• KNCHR urged the establishment of preventive safeguards, an accessible system for status verification, and cautioned the public against vigilantism.

The Commission asserted that enforcement must strictly adhere to principles of legality, equality before the law, non-discrimination, due process, and procedural fairness, explicitly warning against arbitrary or disproportionate administrative actions.

The Kenya National Commission on Human Rights (KNCHR) has issued a strong caution to the government regarding its approach to enforcing immigration and business regulations against foreign nationals. On September 8, the Commission warned that employing blanket measures in such enforcement could lead to significant human rights violations, emphasizing that all actions must align with the Constitution and avoid discrimination based on nationality. This intervention by the KNCHR follows a directive issued by President William Ruto on September 2, which called for the immediate closure of small businesses operated by foreign nationals, a move that was subsequently clarified by the Cabinet Secretary for Investments, Trade and Industry on September 6 concerning work visa applications.

KNCHR Chairperson Claris Ogangah revealed in a statement that the Commission has been inundated with petitions from refugee communities and other migrant populations across various counties. These complaints detail allegations of threats, intimidation, discriminatory treatment, and online attacks. While specific reports from Miritini in Mombasa County were cited as an example of potential violations, the Commission underscored that the issue is national in scope and not confined to any single region, highlighting a widespread concern about the treatment of foreign nationals in Kenya.

While acknowledging the government's legitimate mandate to regulate immigration, employment, trade, investment, and commercial activities, and its responsibility to foster fair competition and safeguard opportunities for Kenyan citizens and local enterprises, the KNCHR stressed that these duties must be balanced with Kenya’s constitutional and international human rights obligations. The Commission asserted that enforcement must strictly adhere to principles of legality, equality before the law, non-discrimination, due process, and procedural fairness, explicitly warning against arbitrary or disproportionate administrative actions.

The human rights watchdog specifically reminded the government of its obligations under Article 21 of the Constitution, which mandates the State and all its organs to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms enshrined in the Bill of Rights. The KNCHR urged authorities to implement appropriate preventive safeguards rather than waiting for violations to occur, insisting that all enforcement measures must be lawful, necessary, proportionate, non-discriminatory, and procedurally fair to ensure the protection of Kenya foreign nationals human rights.

The KNCHR further highlighted Kenya's commitments under the East African Community (EAC) Common Market Protocol, which aims for the progressive integration of member states through the free movement of persons, goods, services, capital, and labor, alongside rights of residence and establishment. While recognizing that these rights remain subject to national laws and administrative procedures, the Commission underscored the necessity for enforcement to consider individual rights and freedoms, rather than resorting to collective targeting or profiling.

The Commission explicitly warned government agencies against summary enforcement actions that impose punitive consequences on foreign nationals without first affording them an opportunity to be heard or to challenge decisions through lawful channels. It advocated for individual case assessments instead of blanket profiling of foreign nationals, migrants, or refugees. Furthermore, the KNCHR called for special safeguards for vulnerable groups, including refugees, asylum seekers, victims of trafficking, migrant workers, and children, and proposed the establishment of a clear, accessible system for foreign nationals to verify their status, obtain information, and, where legally permitted, regularize their immigration or business status, thereby addressing concerns about Kenya immigration business discrimination and ensuring KNCHR due process foreign nationals.

In addition to its warnings to government agencies, the KNCHR also cautioned members of the public against taking the law into their own hands. The Commission explicitly stated that no individual should engage in physical or online conduct that threatens or harms foreign nationals. This public advisory underscores the importance of maintaining order and respecting legal processes, even amidst heightened scrutiny of foreign business operations.

By emphasizing the need for lawful, necessary, proportionate, non-discriminatory, and procedurally fair enforcement, the KNCHR aims to prevent a blanket crackdown on foreign traders from escalating into widespread human rights abuses. The Commission's stance reinforces the principle that while the government has a right to regulate, it must do so within the confines of established legal frameworks and human rights protections.

Lawyers advising foreign nationals or businesses in Kenya should be prepared to challenge government enforcement actions that appear arbitrary, discriminatory, or lack due process, citing constitutional and international human rights obligations highlighted by KNCHR. Compliance officers should monitor government actions closely for adherence to individual assessment principles rather than blanket targeting, ensuring clients' rights to fair hearing and non-discrimination are protected.

Source: Original reporting via Capital News