Tough homework ahead after Kenya signed EPA pact with EU

This week, Kenya signed a step in the famous, or infamous Economic Partnership Agreement (EPA) with the European Union.

By this agreement, Kenya's exports to EU countries will become duty free and tariff free there. EU imports will be progressively duty free over a 25-year period here.

Famous, because this agreement was first subject of negotiations in 2004. There was much public debate in the East African Community, and indeed over the continent and was then not pursued publicly.

Infamous, because firstly, it was perceived as a pressured 'agreement' between unequal parties; Secondly, because it constituted huge risk-taking on the long-term future of East Africa's farmers, fishers and poultry farmers. It jeopardised our control over the produce of our land, sustainability of our manufacturers, and thereby food security. Thirdly, because EU did not provide reciprocal free entry for our labour.

Fourthly, because its finalisation was challenged by East Africans. In 2006, the East African Legislative Assembly resolved that the final signing of the EPA be suspended. It was also challenged by filing of the case Small-Scale Farmers Forum (SSFF) v Republic of Kenya in the High Court, which also stopped the signing until the constitutionally required processes had first been followed.

I was one of those arguing the case, and, below, I set out some of the court's orders because they still have critical relevance.

At this weeks' signing, Trade CS Moses Kuria said negotiations for trade agreements have been described as 'a civil version of war'. He was right. A well-known book on the matter confirms this. It is entitled so: Trade Is War by Ugandan Professor Yash Tandon (New York/London, OR Books, 2015). The EU EPAs are covered in the book.

He has enumerated the most contentious risks to East Africa: The EU demands 80 per cent removal of tariffs on its goods over the period, risking a major ending of local manufacturing, and consequential local unemployment; the EU was not making real cuts to their own subsidised producers, thus competing unfairly against our unsubsidised food-based industries and affecting our long-term food security.

These are not calls for abandonment of the process. These are calls for these specific dangers and future possible failures to be addressed, and safeguards put into place. The first steps must be compliance with the Orders dated 30 October 2013 of the High Court (Mr Justice Lenaola, as he then was), which included the following: The Government to establish a mechanism for involving stakeholders, including small-scale farmers, in the EPA negotiations; to publish within 30 days, information regarding the negotiations for public awareness; and to encourage public debate on this matter of utmost importance to the people of Kenya.

There is a further issue: Regional and continental concerns. Our partners in the EAC (Uganda, Tanzania, Rwanda, Burundi, DR Congo, South Sudan) have not been co-participants in last week's process. They have not signed any EPA nor shown any intention.

Our obligations to negotiate together, in accordance with continental agreements, and in particular with our commitments under the AU Africa 2063 goals and aspirations, have to be faced. Neither the AU, nor other African countries, are co-participants in present process. President William Ruto, in a recent interview, confirmed this was his own approach, stating in effect: "We take this as a responsibility. We must act in concert. We must negotiate through the AU, negotiate by the AU, not alone."

To do this, Africa has to be united. To go alone, is to break Africa's ability to go united. Yet we are going alone. The regional and continental ramifications of all this have to be resolved, otherwise this EPA will only be considered a desperate move by a regime using a quick fix for a few Kenyans.

Nor has meaningful participation by affected stakeholders has been organised. Nor any full disclosure. The 2013 Orders of the High Court still remain required constitutional steps. Binding on the present process, therefore, is Article 35(1) and, particularly, 35(3) wherein the Constitution demands: "The State shall publish and publicise any important information affecting the nation," remembering that the Constitution is the Manifesto of the People.

The writer is a senior counsel