East Africa Law Society's warning over nationality-based treatment of EAC traders in Kenya

The East Africa Law Society (EALS) has raised concerns over Kenya’s ongoing enforcement measures targeting foreign nationals involved in small-scale trading, hawking and related commercial activities, warning that the crackdown must be implemented within Kenya’s constitutional and East African Community obligations.

In a statement issued in Arusha on September 7, 2026, the regional lawyers’ body said it had taken note of President William Ruto’s directive and subsequent enforcement measures, as well as reports of anxiety among Burundian and other East African Community (EAC) citizens living in Kenya.

The statement comes amid heightened attention to the situation of Burundian nationals in Kenya, with hundreds seeking consular and travel documentation starting Monday September 8 at the Burundi Embassy in Nairobi.

EALS said the developments had consequences beyond economic activity, potentially affecting livelihoods, personal security, dignity and confidence in East Africa’s regional integration project.

Kenyan authorities have maintained that the measures do not amount to a blanket ban on foreign nationals.

The government has said foreigners with the necessary documentation remain entitled to live and work in Kenya, while those without the required permits, licences or registration must comply with the law.

EALS welcomed that clarification but said it was important that the position be reflected consistently during enforcement.

“Nationality should not, in itself, be treated as evidence of illegality,” the society said.

It added that individuals accused of violating Kenyan law should be dealt with according to the applicable law and circumstances of each case.

EALS acknowledged Kenya’s authority to regulate economic activity, immigration, licensing, taxation and labour within its territory.

However, it said that authority must be exercised within the legal framework binding the country, including its commitments as an EAC Partner State.

The lawyers' society said authorities can take action where a person is operating without a required licence or permit, violating immigration conditions, evading lawful taxes or otherwise breaching Kenyan law.

However, it called for the legal requirement to be clear, the alleged violation to be established and the prescribed legal process followed.

“The same principle should apply regardless of nationality,” EALS said, noting that a Burundian, Tanzanian, Ugandan, Rwandan, South Sudanese, Congolese, Kenyan or other East African citizen should be dealt with according to the law applicable to their conduct and circumstances.

The organisation also called for people affected by enforcement action to understand the legal basis for the action, the requirement allegedly breached and the remedies available to them.

In addition, EALS in its statement focused on Kenya’s obligations under the EAC Treaty and Common Market Protocol.

The society cited provisions covering the free movement of people, workers, services and capital, as well as the right of establishment and non-discrimination among citizens of Partner States.

It said these rights do not mean EAC citizens are exempt from Kenyan laws.

Rather, the regional framework requires national laws to be implemented consistently with the commitments made under the EAC integration process.

EALS particularly highlighted the Common Market Protocol provisions concerning non-discrimination on the basis of nationality, movement of citizens, workers and the right of establishment.

The organisation said these provisions should not be interpreted as preventing Kenya from regulating economic activity, but warned that nationality should not become a substitute for determining whether an individual has actually violated the law.

EALS further pointed to Kenya’s Constitution, including provisions concerning equality, human dignity, security of the person, freedom of movement, fair administrative action and access to justice.

The society said enforcement affecting businesses, livelihoods or residence should have a clear legal basis and, where required, appropriate notice and reasons.

It also called for affected persons to have access to legal assistance and avenues for administrative or judicial review where provided by law.

“If the Government considers that existing legislation should be changed, that question should be addressed through the appropriate legislative process,” EALS said.

The organisation said the issue could have implications beyond Kenya because the country occupies a central position in the movement of people, goods, services and investment across East Africa.

It said reports of Burundian nationals seeking consular and travel documentation should therefore be taken seriously, particularly amid wider anxiety among foreign traders.

EALS also cautioned against retaliatory measures by other EAC Partner States, saying a dispute involving one country should not develop into reciprocal restrictions affecting ordinary citizens.

Further, it urged governments and EAC institutions to use regional, diplomatic and judicial mechanisms to resolve disputes.

Among its recommendations, EALS called on Kenya to clearly publish the legal basis and procedures governing enforcement against foreign traders and ensure that enforcement is individual, fair and proportionate.

It also urged the EAC Summit Chairperson, EAC Secretary-General and East African Legislative Assembly to engage on the matter and called on regional bar associations to document credible cases of unlawful or discriminatory treatment.

The society offered its “good offices” to facilitate engagement between governments, EAC institutions, bar associations and other stakeholders.

EALS concluded that Kenya has a legitimate interest in protecting local traders and enforcing its laws, while citizens of other EAC Partner States have rights under the regional framework.