Prof Noah Sitati /HANDOUTThe recent Presidential directive restricting foreign nationals from engaging in small-scale trade has sparked an important national conversation about employment, immigration, regional integration and the rule of law.
The government's objective of protecting Kenyan traders is legitimate. Every sovereign state has the right to regulate who may work, invest and conduct business within its borders, provided those measures are implemented fairly, transparently and in accordance with both domestic and international obligations.
Kenya's immigration laws are clear that foreign nationals who wish to work or operate businesses must obtain the appropriate permits.
The government is therefore within its mandate to enforce compliance against individuals operating illegally. Indeed, protecting local enterprises from unfair competition is a policy pursued by many countries.
The challenge lies less in the objective than in the implementation. Following the President's announcement on September 2, foreign traders were reportedly given until September 7 to cease operating in sectors reserved for Kenyans.
The government has since clarified that the directive targets foreigners operating without the required work permits rather than all foreign nationals.
For many people, however, a few days' notice is insufficient. Some foreign nationals have lived in Kenya for years, rented homes, enrolled children in school, employed Kenyans and invested their savings in small businesses.
Any transition affecting livelihoods should provide adequate time for compliance, appeals or voluntary exit. Sound public policy should distinguish between deliberate violations of immigration laws and long-term residents with established economic and social ties.
Equally important is Kenya's commitment to regional integration. As a founding member of the East African Community (EAC), Kenya is bound by the EAC Common Market Protocol, which promotes the free movement of persons, labour, services and capital among Partner States.
The Protocol also recognises the rights of EAC citizens to establish businesses and reside in other member countries, subject to national laws, public security, public health and other legitimate regulatory requirements. It further discourages discrimination based solely on nationality.
This principle matters because regional integration is reciprocal. Thousands of Kenyans live, work and invest in Uganda, Tanzania, Rwanda, Burundi, South Sudan and other EAC countries.
They operate businesses, provide professional services and contribute to local economies. If Kenya adopts policies perceived as inconsistent with the spirit of the Common Market, neighbouring countries may respond with similar restrictions, potentially affecting Kenyan entrepreneurs across the region.
Tanzanian authorities have already indicated they are reviewing Kenya's measures against the provisions of the EAC Common Market Protocol.
The economic implications also deserve careful consideration. Foreign-owned small businesses do not operate in isolation.
They rent premises from Kenyan landlords, purchase goods from Kenyan wholesalers, employ local workers, pay transporters, and serve Kenyan consumers.
Abrupt closures can therefore have ripple effects throughout local economies, affecting many Kenyan businesses that depend on these commercial relationships.
Equally worrying are reports emerging from parts of Nairobi that some foreign-owned businesses have been vandalised and that some foreign nationals have experienced intimidation following the directive. Media reports also describe long queues outside the Burundi Embassy as people sought travel documents or guidance amid uncertainty.
The Government has rightly stated that it has zero tolerance for harassment, intimidation or xenophobia and has encouraged undocumented East African nationals to register through their embassies while regularisation measures are pursued.
Kenya should avoid the mistakes witnessed elsewhere on the continent. South Africa has experienced repeated episodes of xenophobic violence targeting migrant-owned businesses, resulting in deaths, destruction of property and long-term social tensions.
Such events often begin with economic grievances but quickly escalate into attacks against vulnerable communities. Kenya's long-standing reputation for hospitality, regional leadership and respect for the rule of law should not be compromised by allowing public frustration to evolve into hostility against foreign nationals.
There is a more balanced path forward. The Government should strengthen enforcement of immigration and business laws through a structured registration and regularisation programme. Foreign nationals operating legally should continue to enjoy the protections guaranteed under Kenyan law and regional agreements. Those found to be operating without the required permits should be given a transparent opportunity to regularise their status where legally permissible or be allowed an orderly period to wind down their businesses and depart voluntarily.
Protecting Kenyan jobs and supporting local enterprises are legitimate national priorities. Equally important, however, is preserving Kenya's standing as East Africa's commercial hub and a champion of regional integration.
These objectives are not mutually exclusive. With clear regulations, consistent enforcement, respect for due process and continued commitment to the EAC Common Market, Kenya can protect its citizens while remaining faithful to the values of openness, fairness and regional cooperation that have long underpinned its leadership in East Africa.
