Banning foreign small-scale traders could hurt refugees

President William Ruto’s directive that foreigners operating small shops and engaging in hawking should shut down from September 7 may have been intended to protect Kenyan traders. But the language and manner of the directive raise serious concerns for refugees, particularly those living and working in Kenya’s urban centres.

The President is right that Kenyan traders deserve protection from unfair competition. But the question that must immediately follow is: who exactly is a “foreigner”?

A refugee is a foreign national, but refugees are not simply migrants who have come to Kenya in search of commercial opportunity. Many fled persecution, conflict and insecurity and have rebuilt their lives here. For urban refugees, small businesses are often their primary means of survival and self-reliance.

More importantly, Kenya’s own legal framework recognises refugees as economic actors.

The Refugees Act, 2021 provides recognised refugees with the right, subject to applicable laws, to engage in gainful employment, enterprise, trade or professional activities. This is consistent with the Government’s Shirika Plan, which seeks to move refugee policy from humanitarian dependence towards socioeconomic inclusion, self-reliance and economic participation.

This creates an uncomfortable contradiction.

How can Kenya encourage refugees to become self-reliant while simultaneously threatening the small enterprises through which many of them achieve that self-reliance?

The answer cannot be to treat all non-Kenyans as though they occupy the same legal position.

There is an important difference between a foreign national operating a business illegally and a recognised refugee operating an enterprise within the law. There is also a difference between someone without immigration documentation and someone whose refugee status has been recognised by the Kenyan State.

If certain businesses are to be reserved for Kenyan citizens, that should be clearly established through law, with proper consultation and due process. The President himself acknowledged that legislation on the matter is still before Parliament, yet administrative action is being contemplated before Parliament concludes its work.

That is particularly worrying for refugees.

A blanket enforcement exercise risks creating situations where officers on the ground make decisions based simply on nationality, appearance or perceived foreignness. For an urban refugee, the consequences could be devastating: Loss of a business, inability to pay rent or school fees, increased poverty and greater dependence on humanitarian assistance.

It could also undermine the very policy Kenya has chosen through Shirika.

The Government’s own Department of Refugee Services describes Shirika as a plan for the socioeconomic inclusion of refugees and host communities, with sustainable economic development and self-reliance among its pillars.

Kenya therefore does not have to choose between Kenyan traders and refugees.

It can protect Kenyan businesses while enforcing existing immigration, licensing and taxation laws. It can identify economic activities that should legitimately be reserved for citizens. But enforcement must distinguish between unlawful economic activity and lawful refugee participation in the economy.

Before September 7, the Government should clarify whether recognised refugees and asylum seekers are covered by this directive, what legal authority will govern the enforcement, and what safeguards will prevent arbitrary targeting.

Kenya has every right to protect its citizens and their livelihoods.

But protecting Kenyan traders should not mean making refugees collateral damage.

A country committed to the rule of law must be able to protect local economic interests without abandoning the rights of people whom it has itself undertaken to protect.

The question is not whether Kenya should regulate foreign participation in its economy. It should. The question is whether it can do so without turning “foreigner” into a category that erases legal status, human dignity and the promise of refugee self-reliance.

Deraso Dokhole is a Lawyer at The Legal Caravan.

deraso.dokhole@thelegalcaravan.org