East Africa Law Society warns Kenya against harassment of Burundian traders

Hundreds of Burundi nationals mill around the embassy to beat the government of Kenya deadline for clearance.[David Gichuru, Standard] 

The East Africa Law Society (EALS) has called on Kenya to stop subjecting Burundian nationals  and other East African Community (EAC) citizens to harassment and detention over a directive targeting foreign traders.

EALS issued the statement in Arusha, Tanzania on Monday, September 7, responding to a directive by President William Ruto concerning foreign nationals engaged in small-scale trading and hawking in Kenya.

Ruto directed the government to stop foreign nationals from engaging in small-scale hawking and trading on September 2, after meeting representatives of Micro, Small and Medium Enterprises at State House, Nairobi.

He said foreigners should not compete with Kenyans in businesses such as hawking and retail while foreign investment remained welcome in activities requiring greater capital. Enforcement began on September 7.

The directive triggered a rush by Burundian nationals to leave Kenya, with footage showing large groups gathered with luggage at Nairobi's Machakos Country Bus Station seeking transport home.

Similar scenes played out at the Malaba border crossing with Uganda, while others queued at the Burundi Embassy in Nairobi for travel documents.

Burundi's government has since sent buses to Kenya and begun issuing free laissez-passer documents through its Nairobi embassy to facilitate the return of citizens who wish to leave.

EALS said it had noted with concern reports of anxiety among Burundian citizens in Kenya, including the numbers who have sought consular assistance and documentation in Nairobi.

"Measures directed at economic activity can have consequences for livelihoods, personal security, dignity and confidence in the regional integration project," EALS said in the statement.

The society acknowledged Kenya's right to enforce immigration, licensing, tax and labour laws but insisted that authority must operate within the Constitution and Kenya's treaty obligations as an EAC Partner State.

"Nationality should not, in itself, be treated as evidence of illegality," the statement read.

EALS President Ramadhan Abubakar signed the nine-point statement, which cites 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.

The society urged Kenya to publish the legal basis and procedures guiding enforcement against foreign traders and called for measures to be applied individually and proportionately with safeguards including notice, reasons for adverse decisions and access to legal assistance.

EALS also petitioned the Chairperson of the EAC Summit and the Secretary-General of the EAC to engage Kenya urgently and activate regional mechanisms where necessary

It called on the East African Legislative Assembly to seek clarification on the measures and urged the Law Society of Kenya, the Burundi Bar Association and bar associations across the region to document cases of unlawful treatment and pursue remedies including through the East African Court of Justice.

The society noted that Kenyan authorities have since clarified that foreign nationals with proper documentation remain entitled to live and work in the country and that enforcement will account for Kenya's EAC obligations.

"That confidence is not peripheral to the Common Market. It is one of the conditions upon which the Common Market depends," the statement said.

EALS offered its assistance to facilitate engagement between the affected governments, EAC institutions and bar associations to resolve the dispute.

Ruto directed the Ministry of Investments, Trade and Industry to begin enforcement against foreigners engaged in businesses considered inappropriate for non-citizens, even as a Bill restricting foreign nationals from certain trading activities remains before Parliament.

The EAC comprises Kenya, Uganda, Tanzania, Rwanda, Burundi, South Sudan, the Democratic Republic of Congo and Somalia, with its headquarters in Arusha.