Kenya is a champion of free movement of people in East Africa, but is failing immigrants and refugees at home

Kenya has played a leading role in lowering barriers to the movement of people in the East African region. It has also made great strides in protecting Kenyan expatriates working abroad. But gaps remain in the way it creates and implements domestic immigration and employment policies.

According to the Visa Openness Report, Kenya rose from 31st in Africa for visa openness to 29th out of 54 African countries in 2023. The Africa Visa Openness Index measures the extent to which African countries are open to visitors from other African countries.

This mediocre performance does not reflect the important role Kenya has played in regional integration in East Africa and the Horn of Africa, which includes the displacement of people. It has done this through the East African Community and in the Intergovernmental Authority on Development, the regional structure for the Horn.

But the internal migration regime has been implemented unevenly. A new study, authored by my co-researcher Michael Mutava, argues that Kenya cannot ignore these gaps.

The introduction of Electronic Travel Authorisation (eTA) to replace the visa system is seen by some as a retrograde step. Refugee management policies are faltering under pressure. And the work permit system is being widely abused. This creates uncertainty and undermines trust in the authorities.

Star of regional integration

As a founding member of the East African Community (EAC), Kenya has used its strategic location and economic influence to promote integration in the region.

In 2010, the EAC became a common market under the Market Protocol signed in 2009. The protocol included a clause on the free movement of persons.

In the same vein, Kenya has promoted regional stability and integration, including people movement, within the Intergovernmental Authority on Development. Kenya recognizes that freer movement is crucial to addressing labor shortages, economic disparities and migration pressures.

Kenya has also made efforts to harmonize its policies with its neighbors, ensuring that laws governing trade, labor and capital movements are consistent. It has also invested heavily in regional infrastructure to encourage cross-border mobility.

In addition, Kenya is a signatory to the Free Movement Protocol of Comesa, the regional economic community covering much of eastern Africa, and the continent-wide Free Movement Protocol of Africa. It has reduced or lifted visa restrictions for Comesa member states.

The Kenyan government has signed bilateral labor agreements with several countries to secure employment and protect migrant workers. Reports of human trafficking, low wages, sexual exploitation and unsafe working conditions in Gulf labor markets have led to government intervention with labor agreements designed to protect workers’ rights.

Despite these efforts, the lives of some Kenyan migrant workers in the Middle East and elsewhere are plagued by racism and abuse.

More promisingly, the government launched a diaspora policy document in 2015 to address the concerns of all Kenyans working abroad. The policy developed a better mechanism to help citizens abroad with consular services, efficient ways to transfer money home and organize investments.

The policy also allowed citizens to vote while abroad.

In 2021, Kenya became a champion of the Global Compact for Safe, Orderly and Regular Migration, becoming the first country in Africa to develop a comprehensive implementation plan.

Gaps in Immigration Policy

The Immigration Act of Kenya regulates the entry, stay and departure of migrants. The purpose of the Act is to promote orderly migration, enhance national security and support economic interests by regulating the movement of individuals across the borders of Kenya.

But the country’s immigration policy has been marred by lackluster implementation. For example, in 2024 the government scrapped a large number of visas and replaced them with the Electronic Travel Authorization (eTA) system. It was touted as a visa-free regime. But the shift was not enshrined in law and led to confusion.

Before 2024, 21 African countries were able to travel to Kenya without a visa. The new system was applied indiscriminately to all countries except EAC members, denying them free access to Kenya.

Agitation led to the removal of application fees for South Africa and Ethiopia, while the eTA itself was retained. But the decisions seemed ad hoc, unstructured and unpredictable.

The same uncertainty surrounds the governance of refugees in the country. Laws are fragmented, inconsistent and in some cases contradictory. For example, provision for refugees and asylum seekers to find work is disabled by encampment rules or the complex processes of obtaining work permits.

Ambivalence allows the government to position itself on the international stage as a champion of migrant and refugee rights, while simultaneously capitalizing on anti-migrant sentiment and rhetoric for political gain. Security has been a concern, especially since the 2013 terrorist massacre.

For other immigrants, even from the region, the right to work is a vague area. Inefficiency and corruption lead to abuse of renewable two-year temporary work permits.

Most Kenyans have a positive attitude towards foreigners. The country has been a haven for refugees fleeing conflict zones nearby for decades and has provided them with humanitarian aid.

The private sector provides tailored services to refugees. Equity Bank in Kenya has been providing loans to refugees since 2019. Safaricom has enabled financial inclusion through its services. It has also intervened in the education sector by providing internet and digital educational content aimed at facilitating aid independence.

Local governments recognize the importance of migrants’ contributions. In an era of fiscal constraints, thriving migrant enterprises, particularly in arid and semi-arid areas, generate tax revenues.

Civil society organizations have generally been protective of refugees. In addition to opposing harsh policies, they have sometimes influenced government decisions. They act as watchdogs and advocates who hold governments and policymakers accountable for fulfilling their obligations to migrants.

In 2013, following a terrorist attack in Kenya, the government issued a directive to force all urban refugees and asylum seekers to move to designated camps. The Legal Advice Centre, a leading non-profit organisation, and other groups took the case to court and had the decision overturned.

This same act was repeated in 2016, when the government attempted to close refugee camps without due process.

Where necessary, the Kenyan judiciary provides a solid recourse to justice as enshrined in the Constitution. The evolving relationship between the independent judiciary and the legal profession has led to significant advances in legal doctrine and improved the ethics of migration governance.

What remains is for the government to implement a more coherent policy.

Michael Mutava wrote the research paper under the supervision of Alan Hirsch and contributed to this paper. Mutava holds an MCom in Financial Economics from the University of Cape Town.