Business Daily | 4 March 2021
Kenya, UK trade agreement faces approval setback in Parliament
By Samwel Owino
MPs have taken issue with a clause in the new trade agreement between Kenya and the United Kingdom that bars Parliament from amending or expressing reservations on the pact.
At a meeting with various stakeholders and Trade ministry officials yesterday, the MPs claimed that the clause in the Economic Partnership Agreement (EPA) erodes the country’s sovereignty and demanded that Parliament be allowed to either amend or express reservation on the trade deal.
The legislators further argued that the clause violates the provisions of the Treaty Making and Ratification Act 2012 which gives the National Assembly powers to either approve or reject a treaty with reservations.
“Our Parliament is not a rubberstamp. What the CS for Trade has done is illegal,” said Kiambu Town MP Jude Njomo.
A review of the EPA protocols — which have over the years guided trade between Kenya and the UK as well as EU nations — shows that Parliament does not have powers to introduce changes to trade deals at the ratification stage.
The protocol’s institutional structure only recognises the EPA Council which comprises ministers from the member states, a committee of senior officials composed of Permanent Secretaries or Principal Secretaries, and an EPA consultative committee with representatives of the private sector, civil society and academia. For instance, Article 142 of the new EPA between Kenya and UK expressly states that any amendments to the agreements would only be handled by the Council.
“The Parties may agree, in writing, to amend this Agreement. A Party may submit proposals for the amendment of this Agreement to the EPA Council for consideration. The other party may comment on the proposals for amendment within ninety (90) days from the date of receipt of the proposal,” Article 142(1) on the Amendment Clause says in part.
Should the EPA Council adopt amendments to the agreement, such changes shall then be submitted to the parties for ratification, acceptance or approval in accordance with their respective constitutional or internal legal requirements.
“An amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable legal requirements and procedures, on such date as the Parties may agree,” the protocol further states.
Kenya signed the EPA with the UK on December 8, preserving duty- and quota-free access for exports to the UK after the latter left the 27-member European Union bloc on December 31.
The trade deal, which is awaiting approval by lawmakers of both countries, will eventually see duty on 82.6 percent of products originating from the UK abolished after 25 years.
According to the deal, the 10 percent duty on intermediate goods will start reducing after seven years from the time the trade pact is ratified, resulting in its abolishment eight years later. Kenya will, on the other hand, start phasing down the duty on finished products (currently billed from 25 percent) after 12 years, leading to its elimination 13 years later.
The implementation of the trade deal between the UK and Kenya has, however, run into headwinds amid delayed ratification by legislators in both countries as well as a lawsuit by a group of farmers.
The growers, under the Kenya Small-Scale Farmer Forum, have filed a petition opposing the EPA at the High Court in Nairobi against the Kenyan government. The farmers in the joint petition with Econews Africa, a research and advocacy organisation, argue that the deal is in “utter violation of the fundamental rights and freedoms of the petitioners enshrined in Articles 35 and 43 of the Constitution.”
The lawsuit came just days after Kenyan MPs declined to ratify the pact, accusing unknown officials of sneaking in documents that had not been tabled in Parliament.
The British Parliament has also sought more time to ratify a new trade deal between Kenya and the UK, exposing tensions over the move between Nairobi and its East Africa Community (EAC) partners.
The House of Lords — Britain’s upper house of Parliament — backed a proposal by its International Agreements Committee for a 21-day extension of the initial February 10 ratification deadline amid concern that the UK government had not addressed risks of the new pact with Kenya and its impact on regional cohesion in East Africa.
The delay proposal is also attributed to the fact that the UK government has not explained what other options it considered for ensuring continuity of trading arrangements with Kenya and why it chose not to replicate the EU’s Market Access Regulation (MAR) that guided economic partnerships between the two sides prior to Britain formally ditching Brussels in December 2020.