East African Community’s Right of Establishment in Practice: an Analysis of Kenya’s Legal Framework

Abstract

The Right of Establishment (ROE) is one of the rights and freedoms provided for under the East African Community’s Common Market Protocol. The right entitles legal and natural persons who are nationals of East African Community Partner States (PSs), namely, Kenya, Uganda, Tanzania, Rwanda, Burundi, South Sudan, and the Democratic Republic of Congo to move to any other PS and establish commercial enterprises. The main question is whether the ROE is realisable on the ground. This study focused on analysing the extent to which Kenya’s domestic law facilitates establishment of commercial enterprises under the right. Drawing from desk and field work, the study answered the four research questions. The first question was about the extent is Kenya’s legal framework and practice aligned to the scope of the ROE and their role in facilitating realisation of the entitlements for right holders. The second question addressed the extent to which Kenya’s domestic law and practice facilitate the discharge of obligations that the country owes the rights holders within the ROE framework and in accordance with the principle of pacta sunt servanda. The third question discussed the effectiveness of the judicial and administrative mechanisms for enforcement of the right. The study found that the establishment of commercial enterprises under the ROE is riddled with legal challenges, such as discrimination on the ground of nationality, denial of registration of ROE legal persons except companies, denial of spouses and children of their right to establishment, ineffective forums for resolution of disputes under the domestic law, and improper invocation and application of limitations to the ROE. Overall, Kenya’s domestic law is a huge obstacle to the discharge of the obligations the country owes to the right holders. The study suggested practical steps towards getting it right in facilitating the ROE holders to benefit from the right and addressing the challenges identified. The study concluded that a lot of work needs to be done by all stakeholders including, executing government departments, courts, right holders, civil society, business community, parliament, and county assemblies. The work should focus on making Kenya’s domestic law facilitative to the discharge of obligations owed to the right holders.