This morning, Kenya awoke to two front pages that ought to arrest the attention of anyone concerned about the direction in which public power travels once nationality becomes an organising principle of economic enforcement. The Daily Nation announced in enormous type, “Panic over Ruto order.” The Standard was darker still: “Fear and flight.” And there, emblazoned upon the latter in a word whose arrival in this controversy should make the Republic profoundly uncomfortable, was XENOPHOBIA. The Nation carried the extraordinary photograph of hundreds of Burundians crowding their embassy in Nairobi, seeking clarity over their travel documents and status amid mounting uncertainty. The Standard, meanwhile, reported fear, threats, attacks and pressure upon foreign traders to close their businesses, alongside the reported closure of at least twenty foreign-owned businesses in Mwembe, while explicitly invoking the recurring xenophobic violence that has scarred South Africa. Two newspapers, two front pages, one gathering national anxiety. What might only days ago have been dismissed as an unnecessarily alarmist comparison has therefore moved from the margins of public discussion onto the front pages of Kenya’s national press.
And that development should sober us, because the question before Kenya is no longer merely whether the Government possesses sovereign authority to protect economic opportunities for Kenyan citizens. Of course it does, subject always to the Constitution and the law. The deeper and considerably more unsettling question is what happens when a legitimate economic objective begins to organise public suspicion around the nationality of the person standing behind the counter; when regulatory language descends from statutes, permits and prohibited activities into the considerably more combustible vocabulary of foreigners; when the economic frustrations of citizens are given a human face belonging to somebody from somewhere else; and when people who yesterday conducted their affairs in relative obscurity suddenly find themselves crowding an embassy because the atmosphere around them has changed. Scripture warns that “death and life are in the power of the tongue” (Proverbs 18:21). Words spoken from the summit of political authority do not remain upon the podium. They descend into streets, markets, shops and human relationships, acquiring meanings, interpretations and consequences far beyond the intentions of the speaker.
There is something profoundly unsettling about a government opening the gates of a nation to foreign investment, admitting people through its immigration system, registering their enterprises, issuing the permissions under which they conduct business, collecting licence fees and taxes from them, and then suddenly turning upon a particular category among them and declaring that their businesses must close, not necessarily because each has individually been found to have broken the law, evaded tax, violated immigration conditions or traded without a licence, but because they are foreigners operating businesses that have somehow become too small to qualify for the hospitality of the Republic. The foreign investor, it would appear, is welcome provided his capital is sufficiently impressive; but once foreign investment descends from the factory, the industrial park and the corporate boardroom into the humble shop and the hawker’s stall, the investor mysteriously ceases to be an investor and becomes, with almost accusatory emphasis, a foreigner. Somewhere between the billion-shilling factory and the modest counter, nationality apparently changes character.
President William Ruto has directed that foreigners engaged in hawking and small-scale retail businesses should cease those activities, arguing that Kenya welcomes foreign investors but did not invite foreigners to compete with Kenyans in petty trade. Yet the President simultaneously referred to legislation still before Parliament intended to reserve certain categories of business for Kenyan citizens. That conjunction should trouble every student of constitutional government. If Parliament must still enact the law by which those activities are to be reserved, upon what existing legal foundation is the Executive proposing to accomplish through administrative enforcement what the Legislature has apparently not yet enacted? That is not pedantry. It is the elementary architecture of constitutional government. Parliament legislates. The Executive implements. Courts adjudicate disputes arising under the law. When those boundaries become inconvenient suggestions rather than constitutional disciplines, the rule of law begins quietly yielding to the rule of intention. Scripture captures the principle with remarkable economy: “Let all things be done decently and in order” (1 Corinthians 14:40). Even where the destination may be legitimate, constitutional government requires that the road travelled to reach it also be lawful.
There is, of course, nothing inherently objectionable about Kenya deciding that certain economic activities should be reserved for Kenyans. Citizenship is not an empty constitutional ornament. Governments owe particular obligations to their citizens, and a developing country confronted by unemployment, fragile micro-enterprises and intense competition at the bottom of the economic pyramid may legitimately conclude that some commercial spaces require protection. Nor does a foreign national possess an unlimited right to enter Kenya and undertake whatever business catches his fancy. Immigration is regulated; trade is regulated; investment is regulated; licences have conditions. Indeed, there is considerable economic sense in insisting that foreign investment should bring capital, technology, manufacturing capacity, specialist knowledge, employment, exports and skills rather than merely reproduce economic activities readily undertaken by citizens. A nation is entitled to ask what value foreign capital adds to its economy. But that legitimate policy proposition must be translated into law, because even a good objective does not sanctify an irregular means. As Scripture asks in another context, “And why not say, Let us do evil, that good may come?” (Romans 3:8). A desirable end does not confer righteousness upon every road leading towards it.
The difficulty becomes sharper when one remembers that Kenya already possesses an elaborate legal machinery for regulating foreigners engaged in business. The Directorate of Immigration Services provides for a Class G permit for a specific trade, business or consultancy, with prescribed conditions and substantial capital requirements. The State therefore already possesses instruments capable of distinguishing the lawful trader from the unlawful one. If a foreigner is hawking without lawful immigration status, enforce the immigration laws. If somebody obtained permission to manufacture but has instead established a retail shop contrary to the conditions of that permission, enforce the permit. If a business lacks the requisite county licence, enforce the licensing law. If somebody is evading tax, let the tax authorities descend upon him. If immigration documents were procured fraudulently, investigate them, revoke them according to law and prosecute the fraud. If somebody has entered Kenya under one legal description and constructed an economic life under another, let the State prove it and act. The law already has names for unlawful conduct. There is therefore no need to invent the amorphous offence of being foreign while trading small.
For that is where an otherwise defensible economic policy begins to acquire an altogether more disturbing complexion. The moment the organising principle of enforcement shifts from what have you done? to who are you?, the Republic should become exceedingly careful. Justice, both biblical and constitutional, has always recoiled from judgment founded upon status rather than conduct. “Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour” (Leviticus 19:15). Notice the magnificent balance of that command: neither poverty nor wealth should bend the scales. Yet the emerging policy appears capable of producing precisely that strange inversion. The wealthy foreigner is welcomed because he is wealthy; the poor foreigner becomes objectionable because he is poor. The foreign corporation operating on a grand scale remains an investor; the foreign individual behind a modest counter becomes an intruder. Capital has apparently acquired the remarkable ability to launder nationality: bring enough of it and foreignness becomes investment; bring too little and investment becomes foreignness.
And so, the stubborn question refuses to disappear: Why small shops? If foreign ownership is itself the mischief, why should bigness cure it? If nationality makes the enterprise objectionable, why should adding another zero to the investment account suddenly transform the objectionable foreigner into a celebrated investor? Conversely, if foreign ownership is not inherently objectionable, why should the modest scale of an otherwise lawful enterprise render it worthy of closure? There may indeed be a coherent answer, namely that petty trade constitutes a particularly vulnerable economic sanctuary upon which millions of Kenyan livelihoods depend and should therefore be reserved for citizens. Very well. Then let Parliament say so. Let the affected sectors be defined. Let the boundaries be clear. Let immigration policy say the same thing as investment policy. Let county licensing regimes say the same thing as national policy. Let existing lawful investors know what transitional arrangements apply. Let future applicants know before they commit their capital that these sectors are closed to them. Let nobody discover the limits of his permit from a presidential speech after rent has been paid, stock purchased, employees hired and savings committed. “For which of you, intending to build a tower, sitteth not down first, and counteth the cost?” (Luke 14:28). But a man cannot count the cost against rules that are rewritten after his money has already crossed the border.
And this brings into the dock a party that risks disappearing completely from the present narrative: the Government of Kenya itself. Who admitted these foreigners? Who issued their immigration documents where they possess them? Who registered their companies? Who issued their tax numbers? Who received the application fees? Who granted the relevant licences? Who collected taxes from the enterprises? Who renewed permits where renewals were sought and granted? Who inspected these businesses, passed their doors, received their statutory payments and permitted them to remain visible upon Kenyan streets? The foreign trader did not descend upon Nairobi, Mombasa, Kisumu or Eldoret in a parachute and mysteriously materialise behind a counter. Where his presence and business were lawfully authorised, there is another signature somewhere on those documents, another stamp upon that file, another receipt in that transaction, and ultimately another institutional actor in the story. That actor is the Republic of Kenya. Scripture poses the uncomfortable question, “Thou therefore which teachest another, teachest thou not thyself?” (Romans 2:21). Government cannot investigate everybody’s conduct except its own.
If officials unlawfully issued permits, investigate the officials. If corruption opened doors that the law had closed, prosecute the corruption. If foreigners deliberately misrepresented the businesses they intended to conduct, hold them accountable. If permits have been abused, revoke them through the prescribed legal process. If our regulatory architecture has been sleeping while unlawful enterprises multiplied beneath its nose, then wake it up. But the State cannot sleep throughout the construction of the house, collect rates from the owner while every floor rises, inspect the staircase, approve the electricity connection, collect revenue from the occupants, and then arrive when the roof is being fitted to announce indignantly that somebody has been building. There is an old biblical principle of extraordinary relevance here: “With what judgment ye judge, ye shall be judged” (Matthew 7:2). Before government points the regulatory finger exclusively at the foreign trader, it might profitably examine the other fingers pointing back towards its own institutions.
The constitutional difficulty is equally formidable because Article 47 deliberately guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 28 similarly declares that every person has inherent dignity, while Article 27 begins from equality before the law and equal protection and benefit of the law. The Constitution knew perfectly well how to distinguish citizens from non-citizens where it wished to do so. It therefore matters that these provisions speak in the language of the person. This does not mean that foreigners acquire identical economic and political rights to citizens. They plainly do not. It means something considerably more elementary and considerably more profound: the foreigner standing upon Kenyan soil remains a human being standing beneath Kenyan law, and governmental power exercised against him remains governmental power constrained by the Constitution. The Constitution does not cease operating because the person requiring its protection happens to be unpopular. Indeed, constitutionalism proves its worth most clearly precisely when popularity would make restraint inconvenient.
There is consequently a world of difference between telling a foreign trader, “Your permit does not authorise this activity; you must cease trading,” and telling him, “You are a foreigner operating a small shop; you must close.” The first identifies an unlawful act and applies a pre-existing legal consequence. The second identifies a person by nationality and attaches a disability to his economic scale. The first asks for the permit. The second asks for the passport. The first is law enforcement. The second, unless firmly grounded in enacted law and administered with due process, begins to resemble something considerably more troubling. Proverbs warns that “Divers weights, and divers measures, both of them are alike abomination to the LORD” (Proverbs 20:10). Justice cannot employ one scale for the foreign millionaire and another for the foreign shopkeeper merely because one arrives with a briefcase large enough to command applause.
It is precisely here that today’s newspapers acquire their deepest significance. The shadow of South Africa has now moved from an analogy whispered at the edge of the argument to an explicit comparison printed upon a Kenyan front page. That comparison must still be handled with intellectual discipline. Kenya is not presently witnessing the horrific phenomenon South Africa has repeatedly endured, where xenophobic violence has seen foreign Africans assaulted and displaced, their businesses looted and destroyed and, in terrible instances, human beings killed. A governmental economic directive is not identical to a xenophobic mob, and exaggerating that comparison would weaken rather than strengthen the argument. But the scenes reported today should make complacency equally irresponsible. When foreign traders report fear and threats, when businesses reportedly close, when hundreds of people converge upon an embassy seeking clarity amid uncertainty, and when the language of xenophobia itself reaches the front page, the prudent response is neither hysteria nor denial. It is vigilance.
For xenophobia does not begin when the first shop burns. Long before fire comes vocabulary. Long before the mob comes the narrative. Long before shattered glass comes the story explaining why the person behind somebody else’s counter is responsible for the emptiness inside somebody else’s pocket. Long before physical expulsion comes psychological separation: us and them, citizen and foreigner, deserving and undeserving, belonging and intrusion. And somewhere along that road, an individual ceases to be a Burundian shopkeeper, a Ugandan trader, a Somali entrepreneur, a Chinese merchant or simply a human being with a name, a family, rent, debts, dreams and anxieties, and becomes instead the foreigner, an abstraction upon whom the accumulated frustrations of an economy may conveniently be deposited. History teaches with dreadful consistency that once human beings have been converted into categories, it becomes easier to do to the category what conscience would hesitate to do to the person.
That is why words spoken from the highest office in the land carry extraordinary weight. A President may intend merely to announce economic regulation, but the struggling citizen listening beneath him may hear something else entirely: the person behind that foreign-owned counter occupies an economic space that should have been yours. The unemployed graduate may hear it. The struggling hawker may hear it. The indebted shopkeeper may hear it. The young man whose business has collapsed may hear it. And although none of these conclusions necessarily follows from the policy itself, political language released into a distressed population acquires a life beyond its author. Scripture reminds us again that “death and life are in the power of the tongue” (Proverbs 18:21), while James describes the tongue as a little member capable of kindling an enormous fire (James 3:5–6). Leaders therefore carry the peculiar burden of speaking not merely according to what they intend to say, but with an awareness of what desperate people may understand them to have permitted.
There is also a magnificent African irony that should restrain us. Kenyans themselves are foreigners somewhere. Kenyan doctors practise abroad. Kenyan lecturers teach abroad. Kenyan engineers, bankers, quantity surveyors, entrepreneurs, traders and consultants earn their bread in other people’s countries. Kenyan businesses operate across East Africa and beyond. Kenyan families receive remittances earned beneath foreign flags. We would rightly be outraged if a government elsewhere admitted a Kenyan lawfully, registered his business, licensed his shop, collected his taxes for years and then suddenly announced that because he was Kenyan and his business was insufficiently grand, he should shut his doors next Monday. We would appeal to law. We would invoke regional integration. We would speak of fairness. We would demand diplomatic intervention. We might even ask our embassy to protect him. And perhaps, somewhere in Nairobi today, that mirror is already standing before us. The ancient command therefore comes thundering across the centuries with uncomfortable relevance: “The stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself: for ye were strangers in the land of Egypt” (Leviticus 19:34). That Scripture does not abolish borders or immigration laws. Israel itself had laws governing strangers. It establishes something more fundamental: regulation must never extinguish humanity.
Perhaps nowhere is the contradiction more visually striking than in the economic hierarchy this policy threatens to create. Let the foreigner arrive with billions, announce a factory, occupy acres of an industrial park and promise thousands of jobs, and government will properly roll out the investment carpet. There will be conferences, handshakes, memoranda, photographs, motorcades and speeches about investor confidence. Cameras will flash. Ministers will smile. Statistics will be announced. But let another foreigner possess considerably less capital and operate behind a modest counter, and suddenly the adjective preceding his name changes. Yesterday he was part of foreign investment; today he is simply the foreigner. The first is photographed beside ministers. The second is photographed by enforcement officers. One receives an investment certificate; the other fears a padlock. The distinction may be economically explicable, but morally it must never become a distinction in human worth, for “the rich and poor meet together: the LORD is the maker of them all” (Proverbs 22:2).
Nor should the foreign trader become a convenient scarecrow upon which Kenya hangs every frustration afflicting its small-business economy. Our micro-enterprises struggle beneath expensive credit, weak purchasing power, burdensome levies, high rents, unpredictable regulation, counterfeit imports, unemployment, inadequate market infrastructure and an economy in which millions of citizens have been compressed into the same narrow bands of informal commerce. Closing the shop of a foreigner may produce an immediate vacancy and perhaps even applause, but it does not manufacture prosperity. It does not automatically increase household disposable income. It does not make credit cheaper. It does not reduce electricity costs. It does not create manufacturing capacity. It does not increase productivity. It does not transform our trader into an exporter. It does not enlarge the market into which everybody is trying to sell. Above all, it does not solve the structural conditions that drove ten people to compete for the same tiny commercial opportunity in the first place. Removing one competitor from a shrinking pie does not enlarge the pie.
The more courageous policy is therefore not merely to make the foreign trader disappear, but to make the Kenyan trader stronger. Give the Kenyan entrepreneur affordable capital. Reduce unnecessary regulatory burdens. Build functioning markets. Strengthen domestic manufacturing. Protect legitimate businesses against counterfeit goods. Expand export opportunities. Equip micro-enterprises to become small enterprises, small enterprises to become medium enterprises, and medium enterprises to become continental corporations. Let government create an economy in which the Kenyan shopkeeper does not require the disappearance of his neighbour in order to prosper. Let us become so productive that our traders themselves cross borders carrying Kenyan goods, Kenyan brands, Kenyan ingenuity and Kenyan capital into other people’s markets. Scripture describes the blessing of productive economic independence in magnificent terms: “Thou shalt lend unto many nations, and thou shalt not borrow. And the LORD shall make thee the head, and not the tail” (Deuteronomy 28:12–13). National strength is ultimately demonstrated not by how efficiently we can close another man’s shop, but by how effectively we can enable our own citizens to open businesses across the world.
There is, therefore, a legitimate national conversation hidden beneath a dangerously crude formulation. Kenya may decide that hawking, petty retail and specified micro-enterprises should constitute exclusively Kenyan economic territory. Let us debate it without embarrassment. Let Parliament legislate it if persuaded. Let the reserved sectors be enumerated. Let immigration regulations be harmonised with them. Let county licensing authorities understand them. Let future foreign investors be told clearly, before they leave home and before they invest a shilling, where they may and may not trade. Let existing lawful businesses receive whatever transitional treatment justice and the law require. Let enforcement thereafter be firm, predictable and impartial. “For God is not the author of confusion” (1 Corinthians 14:33). A Republic should not speak through one office inviting investment, another issuing permits, another registering businesses, another collecting taxes and yet another arriving with padlocks.
And so the governing proposition can be stated with almost brutal simplicity. If they are here illegally, enforce the immigration laws. If they are trading illegally, enforce the trade laws. If they have violated their permits, enforce the permits. If they are evading taxes, enforce the tax laws. If they obtained licences fraudulently, prosecute the fraud. If officials facilitated illegality, prosecute the officials too. Nobody should hide unlawful conduct behind accusations of xenophobia, and no foreigner should expect immunity from Kenyan law merely because enforcement might be politically uncomfortable. Hospitality is not lawlessness. Neither is sovereignty arbitrariness. Scripture itself commands submission to lawful authority because rulers bear responsibility for the punishment of wrongdoing (Romans 13:1–4). But the sword entrusted to authority is a sword of lawful judgment, not arbitrary distinction. The State is strongest not when it can act against anyone, but when even in acting against the unpopular it remains obedient to the law that gives it power.
Yet if the Republic of Kenya admitted these people, registered their enterprises, issued the permissions under which they lawfully trade, collected their fees, accepted their taxes and allowed them to invest their savings upon the faith of governmental approvals, then the Republic must confront its own administrative hand in creating that reality before suddenly presenting the foreign trader as though he were an invading economic army. Government cannot be host at the point of entry, registrar at incorporation, tax collector during operation and stranger at enforcement. If Kenya now wishes to change the rules, let Kenya change them by law. Let Parliament legislate. Let the Executive implement. Let affected persons receive due process. Let the courts remain open. Let citizens be protected. Let foreigners obey our laws. And let the Republic itself obey them too.
For ultimately this controversy is about something much larger than hawkers, foreigners and small shops. It concerns the character of power. It asks whether permission granted by the State means anything when political priorities change; whether a licence remains a licence when its holder becomes unpopular; whether law precedes enforcement or enforcement may gallop ahead while legislation struggles to catch up; whether constitutional process remains binding when the intended policy enjoys popular applause; whether administrative fairness belongs only to those whom society likes; and whether justice will remain justice when the person standing before the State has no vote, little political constituency and perhaps nobody powerful enough to speak for him. Scripture gives the Republic an ancient standard against which every exercise of authority may still be measured: “He that ruleth over men must be just, ruling in the fear of God” (2 Samuel 23:3).
Kenya must protect Kenyans. Kenya must regulate foreigners. Kenya must defend its economic interests. Kenya must punish those who abuse its hospitality and violate its laws. Kenya need not apologise for insisting that its citizens should benefit first from opportunities legitimately reserved for them. But Kenya must remain Kenya while doing so: a constitutional Republic governed by law rather than resentment, justice rather than nationality, due process rather than expediency, and reason rather than the intoxicating applause that so often accompanies the exercise of power against an unpopular minority. For there is one final warning worth remembering. Principles established against the stranger rarely remain confined to the stranger. Powers normalised against minorities rarely inquire about nationality before seeking their next application. Every precedent enlarges the vocabulary of government. Every shortcut teaches power something about what the public will tolerate.
And perhaps that is why the photograph of people crowding an embassy should concern even the Kenyan who owns no shop, employs no foreigner and feels no sympathy whatsoever for foreign participation in petty trade. Constitutional restraints are not ultimately maintained for the benefit only of the person who needs them today. They are maintained because none of us knows who will need them tomorrow. The stranger is merely the present occupant of a very old position: the person against whom the exercise of power happens, for the moment, to be popular.
Today, the person standing before the padlocked door may be foreign.
Today, the business may be small.
Tomorrow, the person may not be foreign. And the business may not be small.