There has been simmering tension among foreign nationals living and operating small businesses in Kenya following a Presidential directive on 2 September 2026, ordering foreign nationals operating small businesses, particularly hawking and small retail shops, to close their operations from 7 September 2026. The announcement has raised serious questions about the rights of thousands of foreigners who are legitimately in the country and have lived here for years.
While the concerns raised by Kenyan traders and small business operators about increased competition and its impact on the value of labour, services and goods are legitimate, regulation must remain within a legal framework that protects the dignity and freedoms of those affected. Questions therefore arise about the legal basis for enforcing such a blanket directive, particularly where the legislation cited as providing a framework for local-content measures has not yet been enacted.
It is worth acknowledging that the Kenyan government should, in fact, regulate economic activity and support citizens in the informal sector, many of whom face real and difficult competition for scarce livelihoods, but that legitimate interest should not be pursued through blanket measures that distinguish between people primarily on the basis of nationality, enforced ahead of any law authorising it and without distinguishing between refugees and asylum seekers, EAC nationals, foreign nationals with valid work or business permits, long-term residents and people who may be undocumented.
The announcement has also sparked a public debate increasingly framing African migrants and refugees living away from home in other African countries as enemies of citizens, particularly against the backdrop of unemployment and the rising cost of living. Such a directive raises serious questions under Article 27 of the Constitution guarantees equality and non-discrimination, particularly if people are subjected to different treatment solely because of their nationality. It prohibits the State from discriminating, directly or indirectly, against any person. A directive ordering an entire category of people to cease their livelihoods, identified by nationality rather than individual wrongdoing, therefore sits in direct tension with this constitutional guarantee. Article 2(5) and 2(6) of the Constitution further bind Kenya to the general rules of international law and treaties it has ratified. The 1951 UN Refugee Convention, its 1967 Protocol and the 1969 OAU Refugee Convention protect refugees’ access to wage-earning employment and self-employment. Kenya’s Refugees Act, 2021, goes further by expressly granting refugees and asylum seekers the right to engage in gainful employment and run businesses. An administrative directive cannot simply override a right Parliament enacted only a few years ago. The East African Community Common Market Protocol also provides for rights relating to the movement of workers, establishment and provision of services among nationals of partner states, subject to the Protocol and applicable implementing measures. Measures that affect EAC nationals therefore need to be assessed against Kenya’s regional obligations as well as domestic law.
Kenya’s standing as a haven for people fleeing conflict in Somalia, South Sudan, the Democratic Republic of Congo, Ethiopia and beyond has been built over decades of Kenyans living, trading and building families alongside refugees and migrants. Some of those affected may have lived in Kenya for many years, established families and communities here, and may have limited or no meaningful ties to another country. Rhetoric that frames economic hardship in terms of nationality carries risks far beyond the traders directly affected. South Africa’s experience demonstrates the risks of political and public narratives that blame migrants for economic hardship and portray them as competitors for scarce opportunities. Such narratives have, at times, contributed to xenophobic hostility and violence against African migrants and traders. As a member of the East African Community and the African Union, Kenya has obligations to uphold equality, non-discrimination and the rights of migrants and refugees. r.
There is also a harder question the directive conveniently avoids, how did we arrive at a point where undocumented foreign traders are such a visible presence in Kenya’s informal economy? This has very little to do with the vulnerable traders themselves than with the institutions meant to regulate entry, work permits and residency. Kenya has previously documented cases of corruption and irregularities in immigration and work-permit processes.
If the government is serious about restoring order to who enters and trades in Kenya, accountability must begin at the border posts and within the institutions responsible for immigration and permits, not on the pavement where the people affected by those institutional failures are now standing.. Punishing the beneficiaries of institutional failure while leaving the institution itself untouched does not fix the system. It simply finds a more vulnerable target to blame.
What has been encouraging, though, since the announcement is that many ordinary Kenyans, commentators and civil society voices have refused to simply cheer the directive along. Across social media, opinion pages and public commentary, a real strand of resistance has emerged questioning both its rationale and legality. This signals something important about where the country’s conscience sits. Public concern about the directive also demonstrates that there is an important space for public debate about how Kenya regulates economic activity while respecting the rights of migrants, refugees and other foreign nationals. Economic hardship should not be used to justify discrimination or hostility against people based on their nationality.
The government should suspend enforcement of the directive and undertake a lawful, transparent and inclusive process to determine how economic regulation can protect Kenyan livelihoods while respecting the rights of foreign nationals. Protecting Kenyan traders and treating foreign residents with dignity are not competing goals. Kenya can regulate its economy, protect local livelihoods and still uphold the constitutional promise in Article 27 that equality before the law belongs to everyone within its borders.