ANALYSIS
Alan Hirsch
In 2023, the Visa Openness Report indicated that Kenya
improved its ranking from 31st to 29th among 54 African nations regarding visa
openness. The Africa Visa Openness Index evaluates how welcoming African
countries are to visitors from other nations on the continent.
This lackluster ranking does not accurately reflect Kenya's
pivotal role in fostering regional integration in East Africa and the Horn of
Africa, particularly concerning the movement of people. Kenya has facilitated
this integration through its participation in the East African Community and
the Intergovernmental Authority on Development, which serves as the regional
framework for the Horn of Africa.
The Implementation of its domestic migration policies has
been inconsistent. A recent study by my co-researcher Michael Mutava highlights
that Kenya must address these deficiencies.
The shift to an Electronic Travel Authorisation (eTA) system
in place of the traditional visa framework is perceived by some as a
regression. The approach to refugee management fluctuates in response to
various pressures. Additionally, the work permit system is frequently misused,
leading to uncertainty and diminishing trust in governmental authorities.
Regional integration leader
As a founding member of the East African Community (EAC),
Kenya has leveraged its strategic position and economic power to foster
regional integration.
In 2010, the East African Community (EAC) transitioned into
a Common Market following the signing of its Market Protocol in 2009, which
included provisions for the free movement of individuals.
Similarly, Kenya has played a significant role in promoting
regional stability and integration through the Intergovernmental Authority on
Development, recognizing that enhanced mobility is essential for addressing
labor shortages, economic inequalities, and migration challenges.
Furthermore, Kenya has actively sought to align its policies
with those of its neighboring countries to ensure that regulations related to
trade, labor, and capital movement are coherent. The nation has also made
substantial investments in regional infrastructure to facilitate cross-border
movement.
Additionally, Kenya is a signatory to the free movement
protocol of the Common Market for Eastern and Southern Africa (Comesa), which
encompasses a large portion of Eastern Africa, as well as the continent-wide
African free movement protocol. It has taken steps to ease or eliminate visa
requirements for member states of Comesa.
The Kenyan government has established bilateral labor
agreements with several nations to enhance employment opportunities and
safeguard the rights of migrant workers. Concerns regarding human trafficking,
inadequate wages, sexual exploitation, and hazardous working conditions in Gulf
countries have led to government initiatives aimed at protecting the rights of
these workers.
However, despite these measures, many Kenyan migrant workers
in the Middle East and other regions continue to experience racism and
mistreatment.
On a more positive note, in 2015, the government introduced
a diaspora policy document designed to tackle the issues faced by Kenyans
working overseas. This policy created improved mechanisms for providing
consular services, facilitating efficient remittance processes, and organizing
investment opportunities for citizens abroad.
Additionally, the policy allowed citizens to participate in
voting while residing outside the country.
In 2021, Kenya took a leading role in the Global Compact for
Safe, Orderly and Regular Migration, becoming the first African nation to
formulate a comprehensive implementation plan.
Gaps in Immigrant Policies
Kenya’s Immigration Act is designed to regulate the entry,
residence, and exit of migrants, aiming to facilitate orderly migration,
enhance national security, and bolster economic interests by managing the flow
of individuals across its borders.
However, the implementation of the country’s immigration
policies has been lackluster. In 2024, the government eliminated numerous visa
categories, introducing the electronic travel authorization (eTA) system, which
was promoted as a visa-free approach. Unfortunately, this transition lacked a
legal foundation, resulting in widespread confusion.
Prior to 2024, citizens from 21 African nations enjoyed
visa-free access to Kenya. The new eTA system was applied uniformly to all
countries, with the exception of East African Community (EAC) members, thus
revoking their previously granted free access.
Public pressure led to the removal of application fees for
travelers from South Africa and Ethiopia, yet the eTA requirement remained in
place. These changes appeared to be reactive, lacking a coherent strategy and
predictability.
Similar uncertainty surrounds the management of refugees
within the country. The legal framework is fragmented, inconsistent, and at
times contradictory. For instance, while refugees and asylum seekers are
legally permitted to work, restrictive encampment policies and complicated work
permit processes hinder their ability to do so.
This ambiguity enables the government to present itself as a
proponent of migrant and refugee rights on the global stage, while
simultaneously exploiting anti-migrant sentiments for political leverage.
Security concerns persist, particularly in the aftermath of the 2013 terrorist
attack.
For many immigrants, including those from the surrounding
region, the right to work remains an ambiguous issue. Inefficiencies and
corruption contribute to the misuse of renewable temporary work permits, which
are valid for two years.
The general sentiment among Kenyans towards foreigners is
largely positive. For many years, the country has been a refuge for individuals
escaping conflicts in neighboring nations, providing essential humanitarian
support.
The private sector has adapted its services to meet the
needs of refugees. Since 2019, Equity Bank in Kenya has been offering loans to
refugees, while Safaricom has enhanced financial inclusion through its various
services. Additionally, the company has made strides in the education sector by
providing internet access and digital educational resources aimed at fostering
self-sufficiency.
Local authorities acknowledge the vital role that migrants
play in the economy. In times of budgetary limitations, successful migrant
enterprises, especially in arid and semi-arid areas, contribute significantly
to tax revenues.
Civil society organizations typically advocate for the
rights of refugees. In addition to opposing stringent policies, they have
occasionally influenced governmental decisions. These organizations serve as
watchdogs and advocates, ensuring that the government and policymakers are held
accountable for their responsibilities towards migrants.
In 2013, in response to a terrorist attack in Kenya, the
government mandated that all urban refugees and asylum seekers relocate to
designated camps. The Legal Advice Centre, a leading nonprofit organization,
along with other groups, challenged this directive in court, resulting in its
annulment.
A similar occurrence took place in 2016 when the government
attempted to close refugee camps without following proper procedures.
The Kenyan judiciary provides a reliable avenue for justice
as outlined in the constitution. The developing dynamic between the independent
judiciary and the legal profession has resulted in notable progress in legal
principles and has enhanced the governance framework regarding migration.
What is needed now is for the government to adopt a more
cohesive set of policies.
Michael Mutava wrote the research paper under the guidance
of Alan Hirsch and contributed to this article. He holds an MCom in financial
economics from the University of Cape Town.
Alan Hirsch serves as a Research Fellow at the New South Institute and is an Emeritus Professor at The Nelson Mandela School of Public Governance, University of Cape Town.