NAIROBI, Kenya Sep 8 – The Kenya National Commission on Human Rights (KNCHR) has cautioned the government against using blanket measures to enforce immigration and business regulations targeting foreign nationals, warning that such actions could lead to human rights violations.
The Commission said enforcement of immigration, employment and business laws must be carried out in accordance with the Constitution and without discrimination based on nationality.
The warning comes days after President William Ruto directed the immediate closure of small businesses operated by foreign nationals.
The President issued the directive on September 2, with the Cabinet Secretary for Investments, Trade and Industry issuing a statement on September 6 clarifying the Government’s position on work visa applications for foreign nationals.
In a statement on Tuesday, KNCHR Chairperson Claris Ogangah said the Commission had received petitions from refugee communities and other migrant populations in several counties alleging threats, intimidation, discriminatory treatment and online attacks.
“All migration-related measures and enforcement interventions must be implemented lawfully, fairly, consistently and without discrimination on the basis of nationality,” the Commission said.
The Commission cited reports from Miritini in Mombasa County as an illustration of the potential violations, but stressed that the concern was national and should not be viewed as being limited to the coastal town.
KNCHR acknowledged the Government’s mandate to regulate immigration, employment, trade, investment and commercial activities, as well as its responsibility to promote fair competition and protect opportunities for Kenyan citizens and local enterprises.
However, it warned that these responsibilities must be balanced with Kenya’s constitutional and international human rights obligations.
The Commission said enforcement must adhere to principles of legality, equality before the law, non-discrimination, due process and procedural fairness, while guarding against arbitrary or disproportionate administrative action.
It further reminded the Government of its obligations under Article 21 of the Constitution, which requires the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms contained in the Bill of Rights.
“Kenya must not wait for violations to occur before putting in place appropriate preventive safeguards,” KNCHR said, adding that enforcement measures should be lawful, necessary, proportionate, non-discriminatory and procedurally fair.
The Commission also raised Kenya’s obligations under the East African Community Common Market Protocol, which provides for the progressive integration of member states through the free movement of persons, goods, services, capital and labour, as well as rights of residence and establishment.
While acknowledging that these rights remain subject to national laws and administrative procedures, KNCHR said enforcement should take into account individual rights and freedoms.
No collective targeting
The human rights watchdog warned Government agencies against summary enforcement that imposes punitive consequences on foreign nationals before they are given an opportunity to be heard or challenge decisions through lawful channels.
It urged authorities to assess cases individually rather than collectively profiling or targeting foreign nationals, migrants or refugees.
The Commission called for special safeguards for refugees, asylum seekers, victims of trafficking, migrant workers, children and other vulnerable groups.
It also proposed the establishment of a clear and accessible system through which foreign nationals can verify their status, obtain information and, where legally permitted, regularise their immigration or business status.
KNCHR further warned members of the public against taking the law into their own hands.
“No person should engage in physical or online conduct that threatens, attacks, harasses, intimidates or otherwise unlawfully interferes with the safety, dignity, rights or lawful activities of foreign nationals,” it said.
The Commission urged the Government to prevent enforcement operations from fuelling xenophobia, profiling, hate speech, extortion and vigilante action.
It also called for stronger oversight of enforcement agencies and prompt investigations into reported abuses.
KNCHR said lessons from the violations, trauma and economic disruption associated with Operation Usalama Watch in 2014 should inform future enforcement operations.
The Commission wants the Government to regularly publish information on complaints, arrests, business closures, deportations, appeals and safeguards applied during enforcement.
It said it would continue monitoring the situation across the country, engaging Government agencies and migrant and refugee communities and documenting alleged violations for possible investigation or litigation.
