According to the World Bank Group report on doing business in Kenya 2014, Kenya is ranked position 129 out the 189 economies surveyed. This is a drop of seven positions from position 122 in the year 2013. In arriving at this report, the following factors were considered; starting a business, dealing with construction permits, getting electricity, registering property, getting credit, protecting investors, paying taxes, trading across borders, enforcing contracts and resolving insolvency.
Conspicuously, getting Immigration related services such as business visas, special passes and work permits does not feature in the report. Understandably so because the report mainly focuses on local businesses doing business in major urban centers. However, in my view, there is need to factor in how immigration practice contributes towards the ease of doing business in Kenya as well. Immigration practice world over, is a balance between regulation and facilitation, national interests versus foreign investments attractions, protection of jobs for locals versus encouraging foreign investments to create more local jobs as well as facilitate skills transfer from expatriates to locals in the long run. More often than not, in many countries Kenya inclusive, there is a conflict trying to balance these considerations.
This conflict is worsening on a daily basis as different factors come into play. As people migrate, cross border crimes such as terrorism, human/drug trafficking and smuggling among others also come into play. In the horn of Africa, political instability and civil wars have seen an increase in forced migration rather than voluntary migration. Kenya has borne the blunt of these with a refugee population of close to a million people. This has not only contributed to insecurity but also stretched the resources available to the limit. This coupled with the issues of ever increasing joblessness, corruption and weak institutions to manage Immigration and National security, has to a large extent contributed in informing how the government of Kenya manages Immigration practice.
Although after the constitution of Kenya 2010, Immigration laws were re-aligned to be in agreement with the constitution, there still exists gaps in how new trends in global labour market are regulated. For instance, the classes of work permits now in existence have no place for concepts such as telecommuting where someone may choose to reside in Kenya but working online for a company in South Africa or the US. Similarly, with many companies now preferring to be headquartered in Kenya in the growing concept of Kenya being their regional hub due to ease of connectivity, superior human capital and the fact that our national carrier Kenya Airways connects Nairobi to many other destinations in and out of Africa…there is still no category of work permit or authorization issued by Immigration to capture that…the traditional way of assuming that if you are working from Kenya then you are working in Kenya does little to encourage this. If a global company with their regional hub for Africa in Kenya decides that their employees overseeing the entire Africa work from Kenya then it does not follow of necessity that they work in Kenya. In fact such people only live in Kenya but work in Africa in the same way one lives in Machakos County but works in Nairobi County. In my view this benefits Kenya the most bearing in mind that such persons can choose to work from any other country in Africa and therefore need to be encouraged to remain in Kenya rather than being classified as foreigners taking Kenyan jobs. In the same concept I have met Kenyans who, although working from Kenya, their role is to oversee other regions in Africa and this is quite encouraging. Whereas Kenya government through its Immigration Department is entitled to put in place mechanisms to protect Kenyan interests, this must be alive to the realities of modern day labour migration trends. However, it is my considered view that the global companies cannot assume that Kenya Government agencies such as Immigration or Customs will know their business needs and requirements. Such companies have an obligation to continuously engage the government in a structured, respectful and professional way in the spirit of private public partnership to enlighten the policy makers on such new concepts and with time changes will be made to accommodate them. In so doing both parties will get to understand each other and within acceptable limits accommodate each other. I say so because I am a believer in the fact that they both need each other and cannot afford not to engage for mutual benefits…where knowledge is lacking, the only prescription is to avail such to the one lacking in it rather than shouting about it.
In the wake of Westgate terror attack that saw massive destruction of property and loss of life, the government of Kenya has tightened how immigration is practiced with more focus on national security. In so doing, there is more scrutiny on who transits through Kenya, visits Kenya and resides in Kenya. There is now more than ever before a focus on compliance with Immigration laws and regulations expected of companies employing foreign nationals. It is thus advisable for all corporates operating in Kenya to manage their Immigration requirements for their employees well to avoid being cited for contravention of the law. Service providers in Immigration practice must as well up their game to ensure that they offer accurate, timely and lawful counsel to their clients because it is in so doing that both the interests of the client, the Kenyan government and the service providers will be protected.