Lawyer moves to court over Ruto remarks on foreign traders

A lawyer has moved to the High Court seeking to stop the government from implementing what he describes as a presidential public pronouncement or executive directive requiring foreign nationals engaged in small-scale businesses and hawking to cease their operations. Advocate Benedict Wandeto Wachira wants the court to issue conservatory orders restraining the government from implementing or enforcing the pronouncement and from closing businesses, confiscating goods, evicting, arresting or harassing African and East African nationals lawfully conducting business in Kenya. High Court judge David Mburu certified the matter as urgent and directed that it be heard during the court recess. 'Upon preliminary consideration of the application and the petition, it is hereby ordered... that the application is certified as urgent and admitted for hearing during the court's recess,' the judge ruled. Justice Mburu directed that the petition, application and court directions be physically served on the respondents by close of business on Tuesday, September 8, and that a return of service be filed. The Attorney-General and Cabinet secretaries responsible for East African Community and Regional Affairs, Foreign and Diaspora Affairs, and Interior and National Administration were directed to file and serve their responses to the application by close of business on September 10. The matter will be mentioned on September 11 for further directions. In his petition, Wachira challenges what he describes as a presidential public pronouncement and/or executive directive targeting foreign nationals involved in small-scale businesses, hawking, retail trade and related economic activities. He says the matter arose from remarks attributed to President William Ruto during an address to Micro, Small and Medium Enterprises traders at State House, Nairobi, on September 2. According to the court papers, the President was quoted as saying: 'All those traders and hawkers doing these small businesses should close down and if they don't do that... from next week when Lee (Lee Kinyanjui) returns from Addis, Monday begin that crackdown.' Wachira argues that the Executive cannot create or enforce a new legal restriction through a public pronouncement, particularly when legislation dealing with restrictions on foreign participation in certain trading activities is still before Parliament. 'The President's constitutional authority does not include the power to legislate by public pronouncement,' Wachira argues in the court papers. He contends that any enforcement based solely on nationality, rather than an individual's breach of an existing law, raises constitutional questions relating to the rule of law, separation of powers, equality, property rights and fair administrative action. The lawyer wants the court to restrain the respondents from directing or facilitating police, immigration officers, county enforcement officers or other public officials to undertake blanket enforcement against foreign traders without individual assessment and due process. He is also seeking orders directing the Inspector General of Police to ensure the safety of affected East African nationals and protect them from harassment, intimidation, arrest, detention or other violations of their rights. Wachira argues that the petition does not seek to prevent the government from enforcing existing immigration, licensing, tax, labour or other laws against people found to be in breach of them. Instead, he says the case challenges what he describes as a blanket prohibition against foreign nationals operating small businesses in the absence of legislation authorising such action. The petition also invokes Kenya's obligations under the East African Community Treaty and the Common Market Protocol, which provide for regional integration and the movement of persons, labour, goods, services and capital. It further relies on the African Charter on Human and Peoples' Rights, with Wachira arguing that any action against lawfully admitted foreign nationals must comply with the law and due process. Wachira says the pronouncement has created fear and uncertainty among foreign nationals operating small businesses in Kenya, including nationals from East African countries and other parts of Africa. He also cites media reports of alleged attacks and vandalism targeting some foreign traders and reports of Burundian nationals seeking protection at their embassy in Nairobi. Wachira, who describes himself as a Pan-Africanist and Secretary General of the Communist Party of Kenya, says he filed the petition in the public interest. He argues that continued nationality-based enforcement could fuel xenophobia and expose foreign nationals to violence and loss of property, while also risking reciprocal restrictions against Kenyans working and doing business in other African countries. The respondents have until September 10 to file their responses, after which the court will give further directions when the matter comes up on September 11.