Explainer: What East Africans need to enter, live and trade in Kenya

He gave the traders until Monday, September 7, to shut down the unlicensed businesses. 

The reaction was immediate and visible: hundreds of foreign nationals, many of them Burundian, queued outside their embassy in Nairobi this week trying to secure travel documents, amid panic, business closures and scattered reports of harassment.

The government has since tried to walk the directive back from its harshest reading. Foreign Affairs officials stressed the order should not be read as a blanket ban on foreign traders, and Nairobi has opened a temporary registration window allowing undocumented East Africans already living in Kenya to regularize their status rather than face immediate removal.

Still, the episode has exposed real confusion, inside Kenya and across the region, about what East African citizenship actually guarantees when you cross a border, and where those guarantees stop.

Do East Africans need a visa to travel in the region?

No, they do not. This is the one right in the system that is unambiguous and long-settled.

Under the East African Community's Common Market Protocol, every partner state must let citizens of the other partner states enter without a visa, move around freely once inside, stay for as long as six months, and leave without restriction.

This is not a new idea; free movement within the region traces back to the 1967 Treaty for East African Cooperation between Kenya, Uganda and Tanzania, and a common EAC passport allowing six months of visa-free travel has existed since 1999.

Has this actually been ratified, or is it just on paper?

It has been ratified, and this puts the EAC well ahead of comparable African blocs.

The Common Market Protocol entered into force in July 2010 after all partner states deposited their instruments of ratification, and it has been operative law ever since, as an aspiration that has been achieved.

That distinction matters regionally: The African Union's continental free-movement protocol needs fifteen ratifications to take effect and remains far from that mark.

The EAC's framework, by contrast, is real, binding law that Kenya, Uganda, Tanzania, Rwanda, Burundi, South Sudan and the Democratic Republic of Congo are all party to.

The Protocol goes further than entry rights, too. It guarantees free movement of workers across the bloc and requires that they not be discriminated against in employment, pay or working conditions because of their nationality.

It also sets out a right of establishment, the ability to set up a business or profession in another partner state.

None of this is unconditional, though; a host state can still impose limitations on public policy, security or health grounds, provided it notifies the other members when it does.

So why can Kenya still crack down on foreign traders?

Because there is a legal gap between the right to enter and stay, and the right to work or trade, and Kenyan officials have been explicit about it this week.

Trade Cabinet Secretary Lee Kinyanjui said plainly that visa-free entry does not by itself confer the right to engage in employment, trade or business in Kenya, and that such activity remains subject to immigration, work-permit and licensing rules regardless of how someone entered the country.

Domestic law backs that position. Kenya's Citizenship and Immigration Act makes the presence of any non-citizen unlawful unless they hold a valid work permit, residence permit or pass.

What softens this for East Africans specifically is that Kenya generally waives work-permit fees for qualifying EAC nationals, and shorter stints of employment can be covered by a simpler special pass rather than a full permit, although an authorization is still required.

Someone taking up employment for more than 90 days is expected to obtain a proper work permit even if they are a fellow East African.

Why hawking and small trade are the flashpoint

Ruto's order targeted specifically the low-capital end of commerce, hawking, kiosks, small retail, arguing this space should belong to Kenyans struggling to find formal jobs.

The government has also floated legislation that would require foreign-owned companies to employ Kenyans for at least 80 per cent of their workforce.

That domestic protectionist push sits uneasily against Kenya's own treaty commitments, a tension officials themselves acknowledge; CS Kinyanjui has said Kenya remains bound by its EAC obligations on free movement of people and goods, and that these would be factored into how enforcement proceeds against citizens of partner states.

The risk of reciprocity has not gone unnoticed. Commentators have pointed out that a crackdown seen as targeting East African traders could invite similar restrictions on Kenyans doing business elsewhere in the region.

For instance, if South Sudan restricted Kenyan-owned hotels or trading operations in Juba, a market many Kenyan entrepreneurs currently rely on.

What East Africans require

For an East African national getting into Kenya, the position currently stands as follows:

• When crossing the border, have a passport issued by the relevant authority from the country of origin. However, no visa is required. Nothing in the current directive changes this.
• East Africans can reside in Kenya for a period of up to 180 days (6 months) without requiring a visa or an Electronic Travel Authorization
• Working or trading requires a work permit to carry out low-value trade in Kenya, but they must have proper legal documentation and business permits. EAC nationals must regularize their stay by obtaining a Class R Work Permit, which is issued free of charge (zero processing and issuance fees) via the eCitizen portal
• Kenya has opened a registration window for undocumented traders, and says it is coordinating with regional embassies to help people regularize their status rather than face abrupt expulsion.

Meanwhile, the government has given foreign nationals conducting businesses in Kenya a 90-day window to normalize their immigration, work permit, registration and licensing status, before enforcement agencies take action against those operating outside the law.

Kenya government officials insist its actions will be lawful and will account for EAC commitments, but the past week has shown how easily a political directive can be experienced on the ground as a blanket order, regardless of the legal fine print.

The underlying treaty right to move freely across East African borders remains intact and firmly ratified.

What is being tested, and contested, is the much narrower question of who is allowed to sell goods on a Nairobi pavement without a permit, and how far Kenya can tighten that without straining the regional bargain it helped build.