Advocate Calls For Due Process As Kenya Tightens Immigration Rules

By Elijah Cherutich

The Government has been urged to adopt a lawful and orderly approach in enforcing its directive on foreign nationals operating businesses in Kenya to prevent the measures from triggering a humanitarian crisis.

Nakuru-based advocate Benhard Kipkoech Ngetich said the Government has a legitimate responsibility to regulate immigration, employment and business activities, but must ensure enforcement complies with the Constitution and guarantees affected individuals due process.

Ngetich said President William Ruto’s directive targeting foreign nationals operating small-scale businesses without the required immigration, work permit, business registration and licensing documents was necessary to ensure compliance with Kenyan laws and protect opportunities for local traders.

However, he said the implementation should have been accompanied by adequate notice and a clear process allowing affected foreigners to regularise their status before enforcement.

“The action was in order; however, I feel the Government did not give the affected persons humble time to align themselves with the directive in regard to fair administration of actions,” he said.

Article 47 of the Constitution provides that every person has a right to administrative action that is lawful, reasonable and procedurally fair, including written reasons where an administrative decision adversely affects their rights or fundamental freedoms.

The advocate’s comments come as the Government moves to defuse growing anxiety among foreign traders following the implementation of the President’s directive.

On Tuesday, the Government announced a 90-day window for foreign nationals to regularise their immigration status, work permits, business registration and licensing before stricter enforcement begins.

The announcement followed scenes of hundreds of Burundian nationals gathering at the Embassy of Burundi in Nairobi on Monday, with many seeking passports, emergency travel documents or assistance amid uncertainty over their status in Kenya.

Government Spokesperson Charles Owino said undocumented East African nationals would be allowed to register through their respective embassies or high commissions as the authorities work with diplomatic missions to regularise their status.

Those undergoing registration during the designated period are to be presumed legally present in Kenya, with the Government saying the arrangement will allow them to access services such as healthcare, banking and legal protection while their status is being regularised.

Ngetich said the Government’s decision to document foreigners was important not only for economic regulation but also for national security.

He argued that authorities needed accurate information on foreigners living and working in Kenya to enable them to account for their activities and respond effectively to security threats.

“If such foreign individuals are not documented well, there is a possibility of the country being unable to account for their actions, which may even compromise the security of the country,” he said.

Ngetich, however, faulted the Ministry of Interior, particularly the Directorate of Immigration Services, together with the Ministry of Foreign and Diaspora Affairs, for what he described as weaknesses in implementing the directive in a manner that clearly distinguishes between undocumented foreigners and those legally residing and operating in Kenya.

The Directorate of Immigration Services requires foreign nationals engaging in employment, trade or business to obtain the appropriate permits or passes under the Kenya Citizenship and Immigration Act. Class G permits, for example, cover specific trade, business or consultancy activities, while a Class R permit applies to eligible citizens of EAC member states seeking to reside, work or engage in business in Kenya.

The advocate attributed the growth in undocumented immigration partly to weaknesses in border management, inadequate enforcement and alleged corruption, saying the Government should strengthen systems for registering people entering and operating in the country rather than relying primarily on enforcement after they have settled.

He said the authorities should also distinguish between immigration status and nationality, warning against treating all foreign nationals as illegal simply because they are engaged in small-scale trade.

The issue has become particularly sensitive because Kenya and Burundi are members of the East African Community, whose Common Market framework provides for the free movement of persons and workers while requiring citizens to comply with the laws and administrative requirements of the host country.

Ngetich further expressed concern over reports of harassment and attacks targeting some Burundian nationals in Nairobi, warning that allowing hostility against foreigners to escalate could damage Kenya’s reputation as a stable and peaceful regional hub.

He said security agencies should move swiftly to protect foreign nationals from vigilante attacks while enforcing immigration and business regulations through established legal procedures.

His warning comes as the Government itself has cautioned against harassment and discrimination of foreigners. Foreign Affairs Principal Secretary Korir Sing’oei visited the Burundi Embassy in Nairobi on Monday and apologised to Burundian nationals over reported harassment, assuring them of government support as they seek to regularise their status or voluntarily return home.

The Kenya National Commission on Human Rights has also warned that enforcement of the directive could trigger human rights violations if carried out without due process and without discrimination. The commission said it had received complaints from migrant and refugee communities alleging threats, intimidation and discriminatory treatment.

Ngetich said the Government should therefore use the 90-day regularisation period to establish a transparent system that allows undocumented foreigners to comply with the law while ensuring that Kenyans are protected from unfair competition.

He said the exercise should ultimately strengthen immigration controls, improve national security and protect legitimate Kenyan businesses without undermining the rights and dignity of foreigners lawfully present in the country.

He warned that failure to contain harassment and xenophobic attacks could produce consequences similar to episodes of anti-foreigner violence witnessed elsewhere in the region, threatening Kenya’s image as a peaceful and democratic country.

“The Government must enforce its laws, but it must do so within the law. There should be no room for mob justice, harassment or discrimination against foreigners,” he said.