Kenya has shifted from a controversial five-day ultimatum for foreigners engaged in “low-capital” businesses to a 90-day window for non-Kenyans to regularise their stay and formalise their businesses, following widespread backlash at home and across the East African Community.
The initial directive, issued last week by President William Ruto, triggered panic among foreign traders, particularly East Africans, with some rushing to their embassies for protection and travel documents amid reports of harassment and attacks.
Some foreign-owned businesses were also reportedly closed, while the directive drew criticism from Kenyan civil society organisations and officials in other East African Community (EAC) partner states, who warned that the measures threatened regional integration, good neighbourliness and the principle of free movement.
The directive also prompted threats of retaliatory action against Kenyan nationals engaged in small businesses in other EAC countries.
The Kenyan government has since softened its position, directing affected foreign nationals to use a 90-day grace period to regularise their immigration status and obtain the necessary permits to operate businesses legally.
In his quarterly diplomatic brief on Thursday, Prime Cabinet Secretary Musalia Mudavadi assured foreign nationals that Kenya remained open to both small- and large-scale trade, but warned them to comply with the country’s immigration and work regulations.
“The directives should be understood as measures aimed at protecting vulnerable sectors of our economy, promoting fair competition and securing sustainable livelihoods of Kenyan citizens,” Mudavadi said.
He also urged Kenyans living and conducting business in other countries to regularise their status and comply with the laws of their host countries.
“This is a global practice. Equally, Kenyan citizens in our partner states are also called upon to comply with similar laws and regulations in the territories of their current residence,” he said.
Mudavadi, however, warned against harassment of foreign nationals and their businesses.
“Anyone who threatens or interferes with foreign nationals or their businesses will face immediate and the full force of the law. Kenya’s approach is therefore more regulatory rather than discriminatory,” he said.
The new 90-day window replaces the original five-day ultimatum, which expired on Monday.
Uganda backs regularisation
Deputy Prime Minister and Minister for East African Community Affairs Rebecca Kadaga has welcomed the regularisation approach and urged Ugandans in Kenya to take advantage of the 90-day period.
Kadaga said the grace period should not be interpreted as an expulsion order, but rather as an opportunity for foreign traders to “organize yourself and get the necessary documents”.
She said EAC citizens enjoy rights to movement, work and establishment under the Common Market Protocol, but those rights do not eliminate the obligation to comply with national laws.
“Even under a Common Market, individual states still have national laws until the EAC becomes a federation,” Kadaga said.
“So, we still have our sovereign obligations and sovereign rights. But the community protocol allows people to move and work and establish in different partner states. But I think you need to do it through the proper means.”
Kadaga said EAC citizens should notify the relevant authorities when they move to another partner state to live or conduct business.
“You should apply to inform the partners that I’ve come to stay in your country. I’m so-and-so; I’m an East African from Burundi. I’m coming to do ABCD here, so that you know where you are,” she said.
“That right is under the Common Market Protocol. So, it’s part of the integration process, but all they are saying is, regularise your stay in the country.”
The Kenyan government has pledged that its agencies will assist foreign traders during the 90-day period and process their applications fairly and without discrimination.
Kenya maintains that the policy is intended to protect local economic opportunities while ensuring that foreign businesses operate within the law.
For East Africans, work permits in Kenya are issued free of charge, although they are required to be renewed annually at a cost of Ksh 5,000, equivalent to about Shs 146,000.
Human rights concerns
The Network Against Human Trafficking and Smuggling of Migrants (NAHUSOM) has urged the Kenyan government to ensure that implementation of the new measures protects vulnerable migrants from exploitation and abuse.
Nimo Ali, executive director of Candle of Hope Foundation, one of the network’s member organisations, said the State had the right to regulate business activity but warned against measures that could push vulnerable migrants out of legitimate livelihoods.
“NAHUSOM doesn’t dispute the State’s authority to regulate business activity within its borders. However, as a network mandated to safeguard migrants, refugees and survivors of trafficking, we are concerned that a blanket closure directive under this notice, if not implemented with clear safeguards, risks pushing already vulnerable populations including refugees, asylum seekers and undocumented migrants out of legitimate livelihoods and into informal, unregulated and unsafe alternatives,” Ali said.
The Kenya National Commission on Human Rights (KNCHR) has also reported receiving petitions from refugee and migrant communities across the country alleging threats, intimidation and discrimination.
Amnesty Kenya, the Kenyan chapter of Amnesty International, has similarly criticised what it described as economic scapegoating and xenophobia.
In a statement issued on Wednesday under the heading, “Stop economic scapegoating. Stop xenophobia,” the organisation said Kenya had a right to regulate business and immigration but insisted that enforcement must be lawful, proportionate and non-discriminatory.
It said the measures should also comply with Kenya’s Constitution, the EAC Common Market Protocol and the region’s free movement commitments.
Amnesty Kenya welcomed the 90-day window and the government’s renewed commitment to regional and continental obligations, but said the reprieve did not automatically restore the rights of those affected by the initial directive.
“This is a reprieve, not a remedy,” the organisation said.
It noted that in the six days between the initial pronouncement and the deadline, hundreds of Burundian nationals had queued outside their embassy in Nairobi seeking emergency travel documents, while businesses closed and traders reported threats, harassment and loss of property.
Burundians have emerged as among the groups most vulnerable to the fallout from the directive.
Tanzania cautious
Tanzania’s Foreign ministry has taken a more cautious position, saying it is studying the situation, particularly whether the businesses targeted by Kenya’s directive fall within the provisions of the EAC Common Market Protocol.
The controversy has already left some businesses closed, properties damaged and some foreign nationals having left Kenya.
Human rights organisations and migrant groups argue that the government’s clarification and 90-day formalisation window have come after considerable damage had already been suffered by affected traders.