NAIROBI, Kenya, Sep 9 — The Law Society of Kenya (LSK) has called on the government to review its directive affecting foreign nationals engaged in small-scale trade, warning that enforcement must comply with the Constitution and Kenya’s obligations under the East African Community (EAC).
LSK said the government has the right to regulate trade, enforce immigration laws and protect Kenyan businesses, but cautioned that such powers cannot be exercised without regard to Kenya’s legal and regional obligations.
“The Government is entitled to regulate trade, enforce immigration laws and protect Kenyan businesses. However, it must do so within the Constitution and the commitments Kenya has freely undertaken as a member of the East African Community (EAC),” the society said.
The statement comes amid heightened tensions surrounding foreign nationals in Kenya, particularly Burundians, following President William Ruto’s September 2 directive targeting foreigners engaged in certain forms of small-scale trade.
The government has since sought to reassure foreign nationals that those with valid documentation remain protected, while giving undocumented foreigners 90 days to regularise their status.
Foreign Affairs Principal Secretary Korir Sing’oei on Tuesday held consultations with Burundi, UNHCR and IOM as the government moved to establish a coordinated response to concerns affecting Burundian nationals.
‘Nationality-based enforcement’
LSK said Kenya’s obligations under the EAC Treaty and Common Market Protocol provide for free movement of people, labour and services, the right of establishment and non-discrimination among citizens of Partner States.
“Citizens of EAC Partner States are, of course, required to comply with Kenyan law,” LSK said, adding that anyone trading without a required licence, violating immigration conditions or committing another offence should face enforcement.
However, it stressed that “the action must be based on the particular violation, not simply on where the person comes from.”
The society said constitutional principles of equality before the law, human dignity and fair administrative action must also guide enforcement.
“At the heart of these instruments is a simple principle: every person is entitled to the equal protection of the law,” it said.
LSK urged the government to review the directive and align it with the Constitution, the EAC Treaty and the Common Market Protocol.
“Any restrictions on trade must have a clear legal basis and must be applied fairly, individually and without discrimination,” the society said.
Attacks on foreigners
The lawyers’ body also raised concern over reports of Kenyans confronting, intimidating and attacking foreign traders and interfering with their businesses and goods.
“No government directive authorizes members of the public to assault another person, confiscate goods or decide who may trade or remain in Kenya,” LSK said.
It called on the government to protect people at risk, investigate reported attacks and make clear that enforcement is the responsibility of authorised public institutions.
“The directive must not therefore not become a licence for discrimination, intimidation or violence,” LSK said.
“The law must apply to conduct, not nationality. The attacks must stop, and Kenya must honour both the letter and spirit of the East African Community.”
Government response
The LSK statement comes as the government steps up efforts to contain anxiety among Burundian nationals following the enforcement drive.
On Monday, Sing’oei visited the Burundian Embassy in Nairobi and apologised over reports of harassment, assuring nationals that those complying with Kenyan law remained 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.
Sing’oei said a Joint Task Team was being constituted to address emerging issues affecting Burundian nationals and that any returns would be voluntary, informed and transparently recorded.
The government has also pledged that harassment of foreign nationals will not be tolerated.
The tensions have coincided with police action against alleged incitement targeting Burundians.
On Tuesday, Kevin Odiwuor Otieno, alias “Engineer Kevin”, was charged at Makadara Law Courts with ethnic contempt, hate speech and offensive conduct likely to cause a breach of the peace.
He denied the charges and was released on a Sh300,000 bond.
Separately, police arrested four Kenyans accused of harassing and extorting foreign nationals in Nairobi’s Nyamakima area.
