Fear and uncertainty spread among foreign traders in Kenya after President William Ruto directed authorities to move against small businesses operated by foreign nationals. The move triggered a scramble among some immigrant communities to seek protection, regularize their status, or leave the country.
The directive, announced earlier this month, has particularly unsettled Burundian traders, many of whom operate small informal businesses in Nairobi and other urban centers. Hundreds of Burundians sought assistance and travel documentation from their embassy in Nairobi in fear that the government’s new policy could lead to deportations or further harassment.
The government has since moved to soften the impact of the initial announcement by providing a 90-day window for undocumented foreign nationals to regularize their status, following pressure from Kenyans who said it could lead to xenophobia.
But the clarification was perhaps too late, as isolated incidents of violence and looting involving businesses operated by Burundians were already registered, including reports of traders having goods taken or destroyed occurred.
For lawyer Waringa Wahome, the issue is not just about immigration compliance or competition between traders. She argues that the language used by political leaders can have direct consequences for vulnerable communities.
“What are the risks of presidential rhetoric targeting foreign traders particularly Burundians, Rwandans, and other East Africans, and could such statements contribute to xenophobia, ethnic profiling, harassment or violations of migrants’ rights?” Wahome asked.
“The rhetoric creates a target on their backs”
Wahome, an advocate of the High Court and community legal advocate, told BreakThrough News, that the consequences were already visible in Nairobi’s informal settlements.
She pointed to incidents reported in Mathare, where foreign traders were allegedly attacked and their goods taken or destroyed.
“In Mathare, the morning of 8 September smelled of the horrific incidents of the night,” Wahome said. “On one hand, a hardworking Rwandese had all his chapati and flour for his chapati business violently taken away. For others it was an opportunity to loot from the Ugandan and Rwandese run businesses.”
“The rhetoric against the traders creates permanently a target on their backs exposing them to risk and violating their freedoms,” she said.
Wahome argued that the situation should be understood against the wider vulnerability of Kenya’s working class.
Describing the conflict as “horizontal violence” between economically insecure Kenyans and equally vulnerable migrant workers, warning that ethnic profiling and discrimination could deepen existing social divisions.
“This horizontal violence among this section of an unsecure working class of Mathare was sparked by a sweeping presidential rhetoric calling on the crackdown, mass expulsion and criminalization of the foreign traders specifically running small businesses,” Wahome said.
She also questioned whether targeting small traders addresses the underlying causes of Kenya’s economic difficulties.
“The majority of the Kenyan youth is poor, unemployed and hopeless,” she said, pointing to rising living costs, widening inequality, shrinking civic space, and concerns over corruption and public resources.
“In that context,” Wahome says “a sweeping rhetoric such as that made by President Ruto can only be seen as a statement meant to deflect attention from the structural economic plunder.”
What does the law protect?
The legal questions are significant. Kenya has the power to regulate immigration, employment, and business activity by foreign nationals. The government says its current exercise is designed precisely to establish who is legally entitled to work or conduct business in the country and to give those who are not compliant an opportunity to regularize their status.
But Wahome argues that enforcement cannot become collective punishment.
“The law protects a human being first for being a human being and therefore they have inviolable rights including the right to dignity and to be treated with dignity,” she said.
Kenya ratified the African Charter on Human and Peoples’ Rights in 1992. Article 2(6) of the Kenyan Constitution provides that treaties and conventions ratified by Kenya form part of Kenyan law. Wahome points specifically to the African Charter’s protections of human dignity and its restrictions on the expulsion of non-nationals.
Even where a migrant’s documentation is irregular, enforcement should be individualized and lawful.
“States are obligated to ensure that all migrant workers and members of their families in an irregular situation have non-discriminatory and effective access to such regularization procedures and that the procedures are not applied in an arbitrary manner,” Wahome said.
She added that the 90-day window must not simply become a countdown to mass enforcement.
“Every case must be treated on its own in a fair process which respects the fundamental rights of the migrant workers.”
A test for East African integration
The controversy has also exposed a difficult contradiction within East Africa’s regional integration project. Kenya, Burundi, Rwanda and Uganda are members of the East African Community, whose Common Market framework provides for the free movement of people, workers, services and capital, as well as rights of establishment and residence. The EAC says its Common Market is based on principles including non-discrimination on grounds of nationality and equal treatment of nationals of other Partner States.
The right to establish a business, however, is not an unlimited license to ignore national laws. The EAC itself states that citizens have the right to establish businesses in another Partner State in accordance with the national laws of that state.
Kenya can enforce its immigration and licensing laws. The question is whether it can do so without turning the enforcement exercise into a campaign against an entire nationality or category of African migrants.
Wahome sees the danger as extending beyond individual traders.
“The small-scale traders represent the majority of the youth population of Africa,” she said, describing them as university and technical-school graduates who have been unable to find formal employment or obtain capital to establish businesses.
“They are the children of the working class of Kenya, East Africa and Africa,” she added.
Further describing the reported violence as “manufactured violence targeted at the poor,” arguing that the businesses at the center of the dispute, selling tea, mandazi and other basic goods have little capacity to determine the structural direction of Kenya’s economy.
“The President is creating a false enemy and fracturing pan-African solidarity,” Wahome said, arguing that poor Kenyans were being encouraged to view small East African traders as the reason for unemployment and the rising cost of living.
The political movement Kongamano la Mapinduzi, issued a statement too,
“Kongamano la Mapinduzi strongly condemns William Ruto’s recent remarks that essentially ordered a crackdown on foreigners running small businesses in Kenya,” the statement said.
“We at Kongamano la Mapinduzi wish to make it clear that an African head of state should be uniting Africans, not turning African people against one another.”
The movement framed the dispute within the longer Pan-African project of removing barriers between African peoples.
“While our shared Pan-African struggle has always envisioned a united Africa without borders, Ruto’s remarks have today set Kenya along the dangerous path of criminalization and harassment of African traders in the name of protecting local businesses,” the statement said.
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