The KNCHR Calls for a Human Rights-Based Approach to the Enforcement of Immigration and Business Regulations involving Foreign Nationals

The Commission’s concern follows the directive issued by H.E. President William Samoei Ruto on 2nd September 2026, directing the immediate closure of small businesses operated by foreign nationals, and the subsequent Press Statement of 6th September 2026 by the Cabinet Secretary for Investments, Trade and Industry clarifying the Government’s position regarding work visa applications for foreign nationals.

The Commission has received petitions from refugee communities and other migrant populations in various counties alleging human rights violations, including threats, intimidation, discriminatory treatment and online attacks. Reports from Miritini, Mombasa County, illustrate the potential for violations, but the Commission emphasizes that this is a broader national concern and should not be viewed as confined to any particular locality.

The KNCHR acknowledges the legitimate mandate and responsibility of the Government to regulate immigration, employment, trade, investment and commercial activities; ensure compliance with applicable laws; promote fair competition; and safeguard economic opportunities for Kenyan citizens and local enterprises.

However, 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. They must comply with the Constitution, applicable legislation and Kenya’s regional and international human rights obligations, including the principles of legality, equality before the law, non-discrimination, due process, procedural fairness and protection against arbitrary, discriminatory or disproportionate administrative action.

As a Member State of the East African Community (EAC) and a Party to the EAC Common Market Protocol, 2009, which entered into force in July 2010, Kenya is committed to the progressive integration of 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.

The Commission reiterates that Article 21 of the Constitution imposes a fundamental obligation on the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms guaranteed 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.

The Commission cautions:

1. Government agencies against summary enforcement measures that impose punitive consequences on individuals before they are afforded due process, including a fair opportunity to be heard and, where applicable, to challenge decisions through lawful mechanisms.

2. Members of the public against taking 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. Any such conduct must attract the full force of the law.

The Commission calls upon the Government to:

1. Ensure lawful, rights-based and non-discriminatory enforcement: Enforce immigration, business and related laws strictly in accordance with the Constitution, applicable legislation, and Kenya’s regional and international obligations. Enforcement should be based on individualized assessment of specific legal violations, not collective profiling or targeting of foreign nationals, migrants or refugees. All persons must be protected from discrimination, torture and other cruel, inhuman or degrading treatment, and must have access to fair administrative action and justice.

2. Safeguard vulnerable persons and establish accessible compliance mechanisms: Take into account the individual circumstances and legal status of affected persons, including work authorization, business registration, permits, pending applications, refugee or asylum status and other applicable protections. Particular safeguards should be provided to refugees, asylum seekers, victims of trafficking, migrant workers, children and other vulnerable groups. Establish a clear, accessible and coordinated mechanism through which affected foreign nationals can verify their status, obtain information and, where legally permissible, regularize their immigration or business status.

3. Prevent abuse and strengthen oversight, accountability and protection: Ensure that enforcement does not facilitate xenophobia, profiling, hate speech, extortion, vigilante action or other human rights violations, including by law-enforcement officers, county authorities, business associations, community leaders or members of the public. Lessons from the violations, trauma and economic disruption associated with Operation Usalama Watch in 2014 should inform future enforcement exercises. The Government should monitor enforcement nationally, regularly publish information on complaints, arrests, closures, deportations, appeals and safeguards applied, and promptly investigate threats and reported violations, hold perpetrators accountable and strengthen protection for affected migrant and refugee communities.