By now the news and debates around the proposed US- Kenya FTA is in the offing have gained notoriety and has been reported widely in various media both in the US and in Africa. Kenya’s President in one of his recent briefings has once again weighed in the debate, noting that the deal will assist the continent by creating a reference upon which other African nations will negotiate bilateral arrangements within the AfCFTA framework going forward. In this address, President Kenyatta noted that
“Kenya will be the first under the new AfCTA so we are going to be trailblazers in this and we hope that others will also follow through”.
Professor James Gathi’s assessment of the agreement from the cost benefit analysis is a compelling read. Prof. GathiI’s piece covers an array of issues such as the history of the talks, the options the US had post AGOA, the likely implications of the proposed FTA on Kenya’s agricultural sectors especially wheat, the implications of the deal on the AfCFTA talks, and workable recommendations.
In his Working Paper titled The United States-Kenya Free Trade Area (FTA): insights into the bilateral trade relationship and early progress on setting terms for an FTA, Eckart Naumann notes that agreements such as the current proposed FTA may cause fault lines and weaknesses especially when the African country involved is part of a Customs Union.
Questions as to what the deal really seeks to achieve have also been asked. For instance, in her piece titled What Would a U.S.-Kenya Trade Deal Mean? Clair Felter in cfr.org opines that:
“It’s unclear how much a new trade pact would move the needle. Kenya already has preferential access to the U.S. market through the African Growth and Opportunity Act (AGOA).”
And while on this question, we need to remember that AGOA is essentially a unilateral measure by the US hence under it the African Countries were meant to “benefit more” by accessing the US market. But has it worked? Well we shall explore this later.
On the litigation front, the proposed agreement has found itself before the East Afrian Court of Justice (EACJ) where there is a case challenging it on basis that it violates the EAC Treaty and the EAC’s various Protocols.
As we digest the above developments, there is a considerable determination on the parts of both Kenya and the US to conclude the FTA. It is therefore imperative that there be interrogation of its specific aspects. For instance on our op-ed that appeared in the Business Daily of June 16 2020 titled Why Kenya must keep an eye on data rules in US trade deal talks, we argued the data provisions especially cross border data flow aspects in the intended FTA need to be looked at keenly especially against the backdrop of privacy issues and the clamour for data localization. Data localization provisions in Kenya’s Data Protection Act are some of the aspects of the negotiations that could be haggling points.