LSK Kenya: Calls For Foreign Trader Directive Review

• The Law Society of Kenya (LSK) has called for a review of a government directive targeting foreign small-scale traders, citing constitutional and East African Community (EAC) obligations.
• The LSK warned that enforcement actions must be based on specific violations of law, not on a person's nationality, and must adhere to principles of equality and fair administrative action.
• The directive followed increased tensions, particularly affecting Burundian nationals, prompting the government to reassure documented foreigners and offer a 90-day regularization period for others.
• Concerns were raised by the LSK regarding reports of Kenyan citizens confronting and attacking foreign traders, with the society emphasizing that no government directive authorizes such public vigilantism.
• The government has since engaged with Burundian officials and international bodies, forming a Joint Task Team to address issues and ensure any returns are voluntary and transparent.

The LSK clarified that while EAC citizens are expected to adhere to Kenyan law, and enforcement for violations such as trading without a required license, breaching immigration conditions, or committing other offenses is legitimate, such actions must be based on the specific transgression, not merely on a person's nationality.

The Law Society of Kenya (LSK) has urged the government to re-evaluate its recent directive concerning foreign nationals engaged in small-scale trade. This call comes amidst a period of increased apprehension, particularly among Burundian nationals, following a September 2 directive issued by President William Ruto that specifically targeted certain foreign traders. The LSK emphasized that while the government possesses the authority to regulate commerce, enforce immigration statutes, and safeguard local businesses, these powers must be exercised strictly within the confines of Kenya's constitutional framework and its international commitments.

Initially, the government sought to alleviate concerns by assuring foreign nationals with valid documentation of their continued protection, while granting undocumented individuals a 90-day window to formalize their status. However, the LSK's intervention highlights a broader concern regarding the implementation of the directive and its potential implications for foreign traders operating in Kenya. The society's stance underscores the necessity for any enforcement actions to align with established legal principles and regional treaties.

The Foreign Affairs Principal Secretary, Korir Sing'oei, subsequently engaged in discussions with representatives from Burundi, the UNHCR, and the IOM. These consultations aimed to establish a coordinated response to the issues affecting Burundian nationals, signaling the government's recognition of the need for a structured approach to the situation.

The LSK's demand for a comprehensive LSK Kenya foreign trader directive review is rooted in Kenya's obligations under both its national Constitution and the East African Community (EAC) Treaty, alongside its Common Market Protocol. These regional agreements are pivotal, guaranteeing the free movement of people, labor, and services, as well as the right of establishment and non-discrimination among citizens of EAC Partner States. The LSK clarified that while EAC citizens are expected to adhere to Kenyan law, and enforcement for violations such as trading without a required license, breaching immigration conditions, or committing other offenses is legitimate, such actions must be based on the specific transgression, not merely on a person's nationality.

Beyond regional commitments, the LSK stressed that constitutional tenets, including the principle of equality before the law, human dignity, and fair administrative action, must guide all enforcement efforts. The core tenet of these legal instruments, according to the LSK, is the entitlement of every individual to equal protection under the law. Therefore, any restrictions imposed on trade must possess a clear legal foundation and be applied equitably, individually, and without any form of discrimination.

This legal perspective is critical for compliance officers and lawyers advising clients in Kenya, as it highlights the potential for legal challenges if government directives on foreign traders are perceived to be discriminatory or lacking due process. The LSK's position reinforces the importance of ensuring that the Kenya foreign traders directive respects both national and regional legal frameworks.

A significant concern raised by the LSK pertains to alarming reports of Kenyan citizens confronting, intimidating, and physically attacking foreign traders, as well as interfering with their businesses and merchandise. The society unequivocally stated that no government directive authorizes private citizens to assault others, confiscate goods, or unilaterally determine who may trade or reside in Kenya. This warning directly addresses the potential for the President Ruto foreign trader directive to be misinterpreted as a license for vigilantism.

In response to these escalating tensions and the LSK's strong admonition, the government has intensified efforts to assuage anxiety among foreign nationals. Foreign Affairs Principal Secretary Korir Sing'oei visited the Burundian Embassy in Nairobi, offering an apology for reported instances of harassment and reassuring nationals that those in compliance with Kenyan law would remain protected. He subsequently convened a high-level meeting with Burundi's Ambassador Evelyne Habonimana, UNHCR Kenya Representative Fatima Mohammed-Cole, and IOM Kenya Representative Nomagugu Ncube.

During these discussions, Sing'oei announced the formation of a Joint Task Team to address emerging issues affecting Burundian nationals, further committing that any returns would be voluntary, informed, and transparently documented. The LSK has called upon the government to actively protect vulnerable individuals, investigate all reported attacks, and unequivocally clarify that enforcement responsibilities rest solely with authorized public institutions. The society concluded that the directive must not become a pretext for discrimination, intimidation, or violence, asserting that the law must apply to conduct, not nationality, and that Kenya must uphold both the letter and spirit of the East African Community.

Lawyers and compliance officers in Kenya should advise clients on the constitutional and East African Community treaty limitations regarding government directives on foreign traders, ensuring compliance actions are non-discriminatory and adhere to due process. This signals potential legal challenges to nationality-based enforcement and highlights the need to monitor government policy adjustments.

Source: Original reporting via Capital News