Foreigners' crackdown: KNCHR warns Government over rights violations

The Kenya National Commission on Human Rights (KNCHR) has warned the Government against unlawful enforcement of immigration and business regulations targeting foreign nationals amid growing uncertainty among migrant communities.

The commission said enforcement agencies must apply the law fairly and without discrimination based on nationality while ensuring affected people receive due process.

“Given Kenya’s role as a host to migrants and refugees from diverse backgrounds, all migration-related measures and enforcement interventions must be implemented lawfully, fairly, consistently and without discrimination on the basis of nationality,” the commission said in a statement Tuesday.

The warning follows a directive issued by President William Ruto on Wednesday, September 2, ordering the immediate closure of small businesses operated by foreign nationals.

It was followed by a statement Sunday, September 6, from the Cabinet Secretary for Investments, Trade and Industry clarifying the Government’s position on work visa applications for foreign nationals.

On Monday, hundreds of Burundian nationals gathered outside their embassy in Nairobi as uncertainty over their status grew.

KNCHR said the Government has the mandate to regulate immigration, employment, trade, investment and commercial activities but must not use summary measures that punish people before they have an opportunity to challenge decisions.

It said affected people should have a fair opportunity to be heard and access lawful mechanisms to challenge enforcement decisions.

The commission also urged the public not to take the law into their own hands.

“No person should engage in physical or online conduct that threatens, attacks, harasses, intimidates or otherwise unlawfully interferes with the safety, dignity, rights or lawful activities of foreign nationals,” it said, adding that such conduct should attract the full force of the law.

KNCHR said enforcement must comply with the Constitution, national laws and Kenya’s regional and international human rights obligations.

“These include the principles of legality, equality before the law, non-discrimination, due process, procedural fairness and protection against arbitrary, discriminatory or disproportionate administrative action,” it noted.

The commission cited Article 21 of the Constitution, which requires the State and every State organ to observe, respect, protect, promote and fulfil rights and fundamental freedoms under the Bill of Rights.

“Kenya must not wait for violations to occur before putting in place appropriate preventive safeguards. The State has a constitutional duty to anticipate and mitigate the risk of violations and to ensure that enforcement measures are lawful, necessary, proportionate, non-discriminatory and procedurally fair,” KNCHR said.

The commission called for enforcement based on individual assessment of specific legal violations rather than collective profiling or targeting of foreign nationals, migrants or refugees.

It also urged the Government to protect vulnerable groups including refugees, asylum seekers, victims of trafficking, migrant workers and children.

KNCHR called for clear and accessible mechanisms through which foreign nationals can verify their status, obtain information and, where permitted by law, regularise their immigration or business status.

The commission said it had received petitions from refugee communities and other migrant populations in various counties alleging threats, intimidation, discriminatory treatment and online attacks.

It warned that such actions could have serious  human rights implications and called for stronger oversight to prevent enforcement measures from fuelling xenophobia, profiling, hate speech, extortion and vigilante action.

The commission said Kenya’s membership in the East African Community (EAC) and its commitment to the EAC Common Market Protocol also require consideration of the rights of people moving within the region.

The protocol provides for the progressive integration of EAC Partner States through the free movement of persons, goods, services, capital and labour as well as rights of residence and establishment.

“While the exercise of these rights remains subject to the laws, regulations and administrative procedures of Partner States, enforcement of national laws must be balanced with the protection of individual rights and freedoms,” KNCHR noted.