A Letter to Dr. David Ndii

I write to you about a file that will be on the top of your pile in the in-tray when you start working. It is the United States-Kenya Strategic Trade and Investment Partnership (STIP) launched on 14 July, 2022. According to the Office of The  United States Trade  Representative, under Docket Number USTR-2022-0008:

Under this initiative the two governments will pursue enhanced engagement leading to high standard commitments in a wide range of areas with a view to increasing investment; promoting sustainable and inclusive economic growth; benefiting workers, consumers, and businesses (including micro-, small-, and medium sized enterprises (MSMEs); and supporting African regional economic integration. As the two governments develop a roadmap for the initial issues under the engagement, the Office of the United States Trade Representative (USTR) is seeking public comments on matters relevant to specified trade areas, including U.S. interests and priorities, in order to develop objectives and positions for enhanced engagement and subsequent negotiation.

The US government subsequently outlined 12 points of negotiations that they will be engaged in with the Kenyan government. These points include: agriculture, anti-corruption, digital trade, environment and climate change action, good regulatory practices, micro—, small-, and medium-sized enterprises, promoting workers’s rights and protections, supporting the participation of women, youth, and others in trade.

If you are following the comment line opened by the US Department of Trade, I want to draw your attention to one comment:

The U.S.-Kenya STIP agenda includes several policy domains in which Kenya would be required to make concessions from a developmental perspective. Particularly so, if these negotiations are influenced by corporate interests that seek to lock in limits on public interest policies and impose a hands-off approach to regulating the digital economy. For instance, in contrast to the United States, Kenya already has enacted privacy and data security policies that would be undermined if a prospective STIP includes the sorts of free-flow-of-data guarantees Big Tech demands and has obtained in some past pacts.

Others are querying whether this STIP is another push of Big Tech to tap into the cognitive skills of young Kenyans to use them as cheap labor for the Artificial Intelligence sector of the US economy.

Both of us know how difficult it is to bargain with the US government. The US has superior bargaining power, but this is no reason to surrender to its power without resistance. Our Constitution decrees we bargain in the national interest, however powerful our partners are. The Constitution also decrees participation of the people, transparency, and accountability. It would be great for Kenya if you could, for the first time in our history, mount a team of Kenyan experts comprising the ones in the country and in the diaspora to negotiate in STIP. We know that the US government creates an advisory team of advisers to give advice to them. Will the Kenyan government create a similar advisory team to guide the negotiations?

Needless to say, Kenya has brilliant economists, trade experts, lawyers, political scientists, and entrepreneurs that can give you a powerful engine to negotiate in the interests of the country. The practice of allowing dimwits to negotiate in complex investment agreements, with eyes only on the colour of the dollar, must end. The engine will need to interrogate the 12 points and address the questions I raise below. I have no doubt you can harness the political will to support such a patriotic endeavour.

I am not an expert in the issue at hand, but let me remind you of the following facts for your consideration and the Advisory Committee I suggest you set up. Bilateral trade between Kenya and the USA is not as significant as the trade between Kenya and the other members of the East African Community. Indeed, Kenya’s trade with the US is estimated at US $ 321 million while Kenya’s trade with Uganda alone is US $ 300 million. Among the 12 points for negotiation include some issues President Ruto addressed in his political campaigns. The US has done its homework, and follows the wisdom of our peasants that if you want to slaughter chickens you must be generous with the grains you pour in their midst, indeed, a relevant metaphor in the STIP negotiations. There are other observations and questions.

Will STIP undermine the trade and economic interests of Kenya and East Africa? Will the US interests in STIP be antithetical to the goals of economic integration in Africa as outlined in the objectives of the East African Community and the African Continental Free Trade Area (AFCFTA)? Is STIP not a slight modification of the Free Trade Agreement (FTA) negotiations  between the Trump Administration and the Kenyatta Government that started in 2019? What have we learnt from the Africa Growth and Opportunity (AGOA) process? Will this STIP reset qualitatively what is being traded, or is it simply to export more cut flowers to the US? Will STIP provide for the investments required to strengthen Kenyan entrepreneurs who want to invest in the DRC to manufacture electric vehicle batteries? The Kenyan government should from the outset of the negotiations be clear whether tariffs are on the table in the negotiations. 

Is it not true that the military relations between the US and Africa are the primary focus of the US foreign policy in Africa? Does Kenya support the new US strategy towards Africa that is speaking of the so-called sub-Saharan Africa? Will STIP be the sidebar to get AFRICOM accepted by Kenyans and East Africans? Will our experts be able to lobby Congress about our national interests in STIP negotiations before any law is passed?

Let us step from SGR (Standard Gauge Railway) to STIP with our eyes wide open to our national, regional, and global interests.

I wrote this article for the STAR newspaper and it was published on 2022-10-28. Needless to say Dr. Ndii did not respond to these issues that were based on Article 10 of our 2010 Constitution that decrees accountability and transparency in state negotiations on investment, trade, military, and other agreements. I also know one of our distinguished Professors on issues of trade, and who works and lives in the US, offered his pro bono services to the Government of Kenya but was turned down. Subsequently, Kenya has been named a Non-NATO ally. It is worthy of note that the US continues to pontificate on the issues of democracy and rule of law while violating the decrees and values of our Constitution. If any evidence was needed for the US’s double standards, perfidy, hypocrisy, domination, exploitation, oppression, and racism, in STIP we have a great example.

I submit it for publication by Pambazuka because it is a glaring example of the struggles over Africa by all the major players (USA, China, EU, Britain, Japan, Russia, UAE,Turkey, Saudi Arabia, India) and the economic, social, cultural, and political consequences for the African liberation.

What must be emphasized is that as we curse the 140th anniversary of the Berlin Conference we should bear in mind that the recolonization, domination, oppression, and exploitation of Africa continues. None of current political leaders in Africa has resurrected the Pan-African liberation politics and spirits of Nyerere, Nkrumah, Gaddafi, Amilcar Cabral, Thomas Sankara, and Professor Cheikh Anta Diop. In the event of a WWIII Africa will be the epicenter of destruction and death. People to people Pan-Africanism must be resurrected and struggles for alternative leaderships in Africa must continue. Such alternative political leadership must at the minimum understand the status of the planet and its status quo. Such alternative leadership must at the very minimum be anti-imperialist, anti-social imperialist, and anti-comprador.

EndNote: A part of this article was previously published in The Star, Kenya and available at https://www.the-star.co.ke/siasa/2022-10-30-letter-to-ndii-lets-step-from-sgr-to-us-trade-deal-with-eyes-wide-open

Willy Mutunga was the Chief Justice & President of the Supreme Court in Kenya between 2011 and 2016. He is an Adjunct Professor in Public Law, Kabarak University Law School.