Relationship Economy between china and Kenya

Contents

A. Overview of  Kenya country

B. General information of Kenya

C. The economic and trade relationships between Kenya and China

1. Political ties

2. Economic ties

(1)  Debt financing

(2)  Chinese development finance to Kenya

3. Reports of racism and neo-colonialism

D. Commercial Law

1) COMPANY LAW

2) COMPETITION LAW

3) CONSUMER PROTECTION

4) DATA PROTECTION

5) DISPUTE RESOLUTION

6) EMPLOYMENT LAW

7) EXCHANGE CONTROL

8) TAX LAW

E. The main legal issues that Chinese investors face in Kenya 

F. References

A. Overview of  Kenya country

Kenya, officially the Republic of Kenya (Swahili: Jamhuri ya Kenya), is a country in Eastern Africa. At 580,367 square kilometres (224,081 sq mi), Kenya is the world's 48th largest country by total area. With a population of more than 47.6 million people in the 2019 census,[11] Kenya is the 29th most populous country.[5] Kenya's capital and largest city is Nairobi,

Kenya, country in East Africa famed for its scenic landscapes and vast wildlife preserves. Its Indian Ocean coast provided historically important ports by which goods from Arabian and Asian traders have entered the continent for many centuries.

B. General information of Kenya

Kenya is a member of the United Nations, Commonwealth of Nations, World Bank, International Monetary Fund, COMESA, International Criminal Court, and other international organisations.

Kenya's economy is the largest in eastern and central Africa,[16][17] with Nairobi serving as a major regional commercial hub.[17] Agriculture is the largest sector: tea and coffee are traditional cash crops, while fresh flowers are a fast-growing export. The service industry is also a major economic driver, particularly tourism. Kenya is a member of the East African Community trade bloc, though some international trade organisations categorise it as part of the Greater Horn of Africa.[18] Africa is Kenya's largest export market,

C. The economic and trade relationships between Kenya and China

(1) Political ties

This bilateral relations date back to 14 December 1963, two days after the formal establishment of Kenyan independence, when China became the fourth country to open an embassy in Nairobi.[1] Military exchange between the two countries has been increasing in the past decade. General Liu Jingsong, commander of the Lanzhou Military Region, led China's first military delegation to Kenya in December 1996; Major General Nick Leshan, commander of the Kenya Air Force, paid a return visit in 1997.[2] Kenyan president Mwai Kibaki visited Beijing in August 2005.[3]

In 2013, President Uhuru Kenyatta visited China. He held talks with his Chinese counterpart, Xi Jinping. Kenya and China ended up signing deals worth (US$5 billion).[4]

Chinese premier Li Keqiang visited Nairobi on his 2014 Africa tour. He and President Kenyatta signed 17 multi-billion-shilling deals to fund multiple infrastructural projects and various agreements. This included the establishment of a China-Africa Development Bank.[5]

 

 

(2) Economic ties

Bilateral trade amounted to US$186.37 million in 2002; China exported US$180.576 million to Kenya, while only importing US$5.798 million of Kenyan goods, mainly black tea, coffee, and leather.[2]

Early in 2006 Chinese President Hu Jintao signed an oil exploration contract with Kenya; the latest in a series of deals designed to expand Chinese overseas economic engagement with Africa. The deal allowed for China's state-controlled offshore oil and gas company, CNOOC Ltd., to prospect for oil in Kenya, which is just beginning to drill its first exploratory wells on the borders of Sudan and Somalia and in coastal waters. No oil has been produced yet, and there has been no formal estimate of the possible reserves.[6]

In April 2007, the Jinchuan Group, a state-owned metal manufacturing group, became the first Chinese company to enter Kenya's mining sector, purchasing a 20% stake in Tiomin Kenya.[7]

Incidences of racism by Chinese expatriates accompanying Chinese investments in Kenya towards black Kenyans has been a source of recent controversy.[8][9][10][11] This has negatively impacted bilateral relations between the two countries.[8]

 2.1 Debt financing

Between 2006 and 2017, Kenya has taken large loans of at least $9.8 billion (Sh1043.77 billion) from China.[12] Chinese debt accounts of 72% of overall foreign debt.[13]

China lent Kenya extensive loans of more than $5 billion[14] to build a standard gauge railway (commonly referred to as SGR), between Mombasa and Nairobi and highways in Kenya.[15][16] In November 2017, the Kenyan Auditor warned that the terms of SGR financing were written cryptically and designed to favor the China Exim Bank and said that if the Kenya Railways Corporation defaults in its obligations, the China Exim Bank would become a principle over some Kenyan assets, including the Mombasa port. In addition to the Mombasa port, Kenya could also be made to give China control of the Inland Container Depot in Nairobi.[14] In 2018, Kenyan President Uhuru Kenyata banned Chinese fish imports in response to public outcry over the unregulated importation of fish from China with Kenyan fishermen lamenting on how the foreign fish had flooded markets.[17] The Chinese government use the Standard Gauge Railway as leverage against Kenya by threatening to completely pull funding for the project as well as threatening to impose trade sanctions.[18] The Kenyan government soon after lifted the ban of Chinese fish imports.[19]

The Kenyan government reportedly waived the sovereign immunity of its largest and most lucrative port, the Port of Mombasa, to be used as collateral for Chinese loans to construct the Standard Gauge Railway. It was reported in late December 2018 that Kenya may soon face default on Chinese loans, which could force Kenya to relinquish control of the port to China.[20][21]

The Kenyan media has debated whether Chinese loans are worth the risk of falling into "debt traps", drawing analogies with § Sri Lanka's Magampura Mahinda Rajapaksa Port deal, and some commentators have argued that these loans could jeopardize Kenyan sovereignty.[15][22] Sri Lanka's new government as of 2019 has looked into renegotiation of its 99-year port lease agreement with China.[23]

2.2 Chinese development finance to Kenya

From 2000 to 2011, there are approximately 65 Chinese official development finance projects identified in Kenya through various media reports.[24] These projects range from a US$108 million grant from Chinese government to build the North and East Ring Road sections in Nairobi,[25] to a concessional loan to finance the construction of the Kenyatta University Teaching, Research and Referral Hospital Project in 2011.[26]

(3) Reports of racism and neo-colonialism

There are reports of racism and neo-colonialism against Kenyans by Chinese with cases including a Chinese restaurant refusing service to blacks,[27] a Chinese expat calling Kenyan people and even the Kenyan President Uhuru Kenyatta a monkey[28] and a Chinese restaurateur captured on video beating, caning, and torturing a black worker.[29][30] There were also reports of racially segregated office bathrooms and a Chinese manager directing Kenyan employees to unclog a urinal of cigarette butts even though only Chinese employees smoked there.[31]

As a result of the large Chinese investments and business interests, there has been a large migration of Chinese workers and business persons to Kenya. There are reports of this causing friction with the local entrepreneurs who's livelihoods have been threatened by the arrival of Chinese traders.[32] Kenyan businesses have suffered due to the flooding of markets with cheap substandard imports from China.[29] Chinese companies are said to have won contracts by allegedly bribing corrupt officials, with the contracts being opaque, with the contract terms not being publicly available.[29]

There are also reports of discrimination against Kenyans in the SGR railway, with Kenyan employees being paid less than a quarter of their Chinese counterparts for the same job, and not being allowed to sit on the same tables as Chinese employees. Kenyans are also reportedly not allowed to enter staff vans if there is even a single Chinese present in it.[33]

 

 

 

D. Commercial Law

 

which commercial law exists in Kenya/Does commercial law have a future in Kenya?

1. Legal framework – areas of commercial law in Kenya are governed by different legislation, not codified, challenge of outdated laws makes Kenya lag behind as a choice of investors to do business in Kenya, has necessitated the amendment of laws eg the Insolvency Act….

2. Effect of IT on commerce – Many Kenyans are computer literate, trade using websites on the increase, phone money transfer eg Mpesa on the increase, lack of specific regulation on these types of transactions….

3. Regional and international trade- Increased international cooperation and integration of Kenya with other regional/world markets (COMESA, EAC etc).  Main aim is economic growth and trade cooperation.  Brings about need for developed commercial laws locally,regionally and internationally. Formation of courts and dispute resolution mechanisms that are not local.

4. Courts and court processes -Rapid increase in commercial disputes led to the creation of the commercial court division of the high court in 1999. Provides a faster and more effective dispute resolution mechanism for commercial cases, has seen the development of jurisprudence.

1) COMPANY LAW

Kenyan company law is heavily based on the principles of English company statute law and the common law, as handed down through judge-made decisions of the courts. The New Act preserves this heritage in the English system. However, the sheer scale of the legislation will have the effect of making statutory provisions out of former common law doctrines such as directors’ common law and equitable duties, rights of shareholders to protections against unfair actions of directors and controlling shareholders, offences of fraudulent trading and many others. 

 

It is important to be assured that the New Act will not annul or invalidate the actions, rights and powers of existing companies incorporated in or already registered in Kenya. There will not be an overnight need to re-register or re-write the rules.

 

2) COMPETITION LAW

The  principal  objective of Kenya’s Competition  Law is to encourage competition in the domestic market by prohibiting restrictive trade practices, controlling monopolies , regulating concentrations of unwarranted economic power and prices.

 

The  second objective of the Law is to set up the necessary institutional  framework for  administration and enforcement of Kenya’s Competition Law and Policy.

3) CONSUMER PROTECTION

consumer protection law within Kenya is very much in its infancy, there have been several significant developments in this area over the last three years, namely the promulgation of the new  Constitution  in  2010 and the subsequent enactment of the Consumer Protection Act, which came into effect in 2013 as well as enactment of the Competition Act, 2010. The Competition Act protects consumers from unfair and misleading market conduct.

Indeed the increased consumer protection has seen the formation of the Consumer Federation of Kenya (COFEK) which was registered on 26th March, 2010 and whose mandate is:

“to defend, promote, develop and pursue consumer rights as guided by Article 46 of the Constitution of Kenya 2010, the Consumer Protection Act, 2012 and the Competition Act, Cap 504 and make it possible for the consumers to get value for money.”

 

4) DATA PROTECTION

Kenya has promulgated a Data Protection Act….

The Data Protection Bill that has been a subject of discussion for years, was passed into law on 8 November 2019 when the president assented to it. The Data protection Bill 2019, follows the path taken by the European Union in enacting the General Data Protection Regulation (GDPR) in May 2018 and makes Kenya the third country in East Africa to have legislation dedicated to data protection.

 

This law was expedited following concerns raised over the Huduma Namba registration exercise, with those opposed to the process raising concern about the safety of citizen’s personal data collected by the  Government.

 

Purpose of the Act

The Act seeks to:

➢ give effect to Article 31(c) and (d) of the Constitution that contain the right to privacy;

➢ establishment of the Office of the Data Commissioner;

➢ regulate the processing of personal data,

➢ provide for the rights of data ‘subjects’; and

➢ obligations of data ‘controllers’ (Person who determines the purpose and means of processing of personal data) and ‘processors’ (Person who processes personal data on behalf of the data controller).

 

5) DISPUTE RESOLUTION 

 

The main alternative dispute resolution (ADR) methods available in Kenya are negotiation, conciliation, mediation and arbitration.There is no mandatory requirement for parties to commercial litigation to submit to ADR proceedings.

However, in terms of the Civil Procedure Act, the courts may, either on the application of the parties or on its own motion, refer a commercial dispute to ADR mechanisms.In ADR proceedings parties generally agree that each party will bear their own costs and expenses and the parties will share the costs of any third party involved in facilitating the resolution of the dispute (example, conciliator or mediator).In arbitration, the costs of arbitration may be agreed upon by the parties, fixed by the arbitrator as part of the arbitral award in the absence of an agreement; or shared, with each party bearing its own legal and other expenses and the parties equally sharing the fees and expenses of the arbitral tribunal and any other expenses relating to the arbitration. ADR proceedings are confidential.The Kenyan Chartered Institute of Arbitrators and the Dispute Resolution Centre and Mediation Training Institute are currently the main bodies that offer ADR in Kenya.Parties are not obliged to use these bodies. They are free to state in their agreements how the ADR proceedings will be carried out and which body will oversee the proceedings. The parties are also free to choose individual qualified arbitrators.

 

6) EMPLOYMENT LAW

 

Kenya is one of the fastest growing economies in sub-Saharan Africa and is considered to be one of the key economic hubs in the region. The country has witnessed significant political, structural and social-economic reforms, which have largely driven sustained economic growth, social development and political gains over the past decade. These expansions have been heightened by the promulgation of the Constitution in 2010, which ushered in new political and economic governing systems, including devolution. However, Kenya continues to grapple with challenges faced by many other countries, including poverty, climate change, inequality and corruption.The employment and labour relations legislative framework is relatively new; the statutes are just under a decade old. These statutes have significantly changed labour law in certain material respects and greatly enhanced the rights of employees. The promulgation of the Constitution has also benefited employees by enshrining the right to fair labour practice as a fundamental right and freedom.In Kenya, employment is governed by the general law of contract, as much as by the principles of common law. Thus, employment is basically seen as an individual relationship negotiated by the employee and the employer according to their special needs. A number of laws have been passed specifically dealing with different aspects of the employer-employee relationship. These laws define the terms and conditions of employment, and consist mainly of four Acts of Parliament:

· The Employment Act (Cap. 226) and the Regulation of Wages and Conditions of Employment Act (Cap. 229) make rules governing wages, leave and rest, health and safety, the special position of children and women and termination of employment. The latter Act, in addition, sets up a process through which wages and conditions of employment can be regulated by the Minister.

· The Factories Act (Cap. 514) deals with the health, safety and welfare of an employee who works in a factory .

· The Work Injury Benefits Act (Cap. 253) provides for ways in which an employee who is injured when on duty may be compensated by the employer.

· The Employment Act does not make any provisions for wages in general. The minimum wage is dealt with by the Regulations of Wages and Conditions of Employment Act.

· 

7) EXCHANGE CONTROL

 

Kenya repealed all exchange control laws in 1993, and has moved to a fully market-determined exchange rate system. There are no controls on foreign exchange, and this policy has attracted short-term capital inflows.
 
The Central Bank of Kenya licenses foreign exchange bureaus, which were introduced in 1995 to enhance efficiency in the forex market. Only the following capital transactions have foreign exchange restrictions:

Investment by foreigners in shares (set in July 2002 at not more than 75 percent for both companies and individuals on shares traded on the NSE); and

Investments by Kenya residents outside Kenya exceeding US$500,000 must be approved by the Central Bank through the facilitating bank.

 
Residents and non-residents are permitted to buy or sell foreign exchange, without restriction, to and from authorized dealers up to the equivalent of US$10,000. Amounts exceeding this limit require documentation to show the purpose for the transaction. This is, however, primarily only for administrative recording by the Central Bank of Kenya. In December 2009, the GOK assented to the Anti-Money Laundering (AML) Bill, which came into effect in June 2010. The enactment of this AML law has been lauded as a positive move by Kenya’s bankers and financial representatives, who see it as a major step in the fight against money laundering in the country and region given Kenya’s unfortunate position as a base or transit point for money laundering activities.
 
Exporters may retain all their export proceeds in foreign currency accounts with local banks, or sell such proceeds to obtain local currency. Residents may borrow abroad with no limit on the amount; however, the government will not guarantee any borrowing by the private sector. Although payments under technical, management, royalty, and patent fees are freely remittable, relevant agreements and renewals are subject to approval.
 
Persons leaving or entering Kenya are permitted to take from or bring into the country up to KSh500,000 of Kenyan currency and a foreign currency equivalent to a maximum of US$6,250 without duty. Amounts beyond these limits may be taken out or brought into the country provided they are declared at the point of departure or entry.
 
The foreign exchange market has remained stable even as the global markets were volatile due to narrowing current account deficit with improved exports, strong diaspora remittances, and a lower oil import bill.

 

8) TAX LAW
There are different methods of collecting income tax from companies & partnerships, based on their sources of income.

These methods include:

a. Corporation Tax

This is a form of Income Tax that is levied on corporate bodies such as Limited companies, Trusts, and Co-operatives, on their annual income.

Companies that are based outside Kenya but operate in Kenya or have a branch in Kenya pay Corporation Tax on income accrued within Kenya only.
b. Pay As You Earn (PAYE)

This is a method of collecting tax at source from individuals in gainful employment.

Companies and Partnerships with employees are required to deduct tax according to the prevailing tax rates from their employees' salaries or wages on each payday for a month and remit the same to KRA on or before the 9th of the following month.

 

c. Withholding Tax (WHT)

This is a tax that is deductible from certain classes of income at the point of making a payment, to non-employees.

WHT is deducted at source from the following sources of income:

· Interest

· Dividends

· Royalties

· Management or professional fees (including consultancy, agency or contractual fees)

· Commissions

· Pensions

· Rent received by non-residents

· Other payments specified

Companies and partnerships making the payment, are responsible for deducting and remitting the tax to the Commissioner of Domestic Taxes.

 

d. Advance Tax

This is a tax paid in advance before a public service vehicle or a commercial vehicle goes for the annual inspection.

 

e. Installment Tax

Installment tax is paid by persons who have tax payable for any year that amounts to Kshs. 40,000 and above.

 

1. Rental Income Tax

This is a tax charged on rental income received from renting out property. Taxation of rental income depends on how the rented property was used for residential or commercial purposes.

 

All persons individuals, partnerships and companies that rent out property to other persons for either residential or commercial use are required to pay income tax on rent received

 

To facilitate compliance, KRA appoints agents to withhold and pay, a percentage of the gross rent as tax. These agents can be verified via the agent checker on iTax.

 

2. Value Added Tax (VAT)

Value Added Tax is charged on supply of taxable goods or services made or provided in Kenya and on importation of taxable goods or services into Kenya.

 

While companies & partnerships can voluntarily register for VAT they MUST register if their annual revenue exceeds Kshs. 5,000, 000.

 

To facilitate compliance, KRA appoints agents to withhold and pay, VAT on supplies made. These agents can be verified via the agent checker on iTax.

 

3. Excise Duty

This is a duty of excise imposed on;

· goods manufactured in Kenya, or;

· imported into Kenya and specified in the 1st schedule to Excise Duty Act, 2015.

 

Companies and Partnerships dealing in excisable good and services are required to pay excise duty.

The List and types of Excisable goods and services are listed in the 5th Schedule as read together with Section 117 (1) (d) of the Customs and Excise Act, CAP 472 Laws of Kenya.

 

They includes;

· Mineral water

· Juices, soft drinks

· Cosmetics and Preparations for use on hair

· Other beer made from malt

· Opaque beer

· Mobile cellular phone services

· Fees charged for money transfer among others

 

4. Capital Gains Tax (CGT)

This is a tax chargeable on the whole of a gain which accrues to a company or an individual upon transfer of property situated in Kenya, whether or not the property was acquired before 1st January, 2015.

It took effect on 1st January 2015.

 

5. Agency Revenue

This is a type of payment that KRA collects on behalf of various revenue collection agencies in Kenya.

The two types of Agency Revenue include;

· Stamp Duty

· Betting and Pool Tax

a. Stamp Duty

Stamp duty is a tax charged on transfer of properties, shares and stock.

 

It is collected by the Ministry of Lands, which has seconded the function to Kenya Revenue Authority (KRA).

 

b. Betting Tax

Betting Tax is chargeable on the gross gaming revenue (GGR) of a bookmaker at the rate of 15% as provided by Section 29A of the Betting, Lotteries and Gaming Act, 1966.

Betting, gaming and Lottery businesses are required to withold as tax and remit to KRA 20% of the winnings being paid out to winners.

Excise Duty on Betting is chargeable at the rate of 20% of the amount wagered or staked, commencing 7th November, 2019.

 

E. The main legal issues that Chinese investors face in Kenya 

While the future seems to hold multiple opportunities for overseas investors in Kenya, we can’t skip over the fact that these investors will inevitably face various challenges before reaching their end goal. These challenges may include:

-The legal and regulatory environment is a major concern for Chinese nationals and firms in Kenya:

Depending on the legal entity they want to use for business, and the investment sector, Chinese companies may face legal obstacles because of the sector-specific laws. Some non-sector-specific legal and regulatory challenges that investors usually face include lengthy processes of set-up and incorporation, extensive license and permit requirements and restrictions on ownership.

Moreover the major issues are also related to tax law, labor law and immigration law—SOEs (State-Owned Enterprises) and POEs (Private-Owned Enterprises) rank the difficulty of these three codes similarly.

- Kenya is known to be a country with a lot of corruption:

The East African Bribery Index illustrates the extent of the problem across Kenyan society as a whole. The index ranked the police (83.3/100), judiciary (44/100) and land services (41.7/100) as the most bribery prone institutions in Kenya, with a score of 100 indicating the worst score across five measures of bribery.

-Chinese nationals tend to use informal means to address legal issues, although more are required:

61.7% Chinese companies stated that their struggles come from Kenya’s institutional deficiencies and/or the corruption of law enforcement officers. Accordingly, 32% Chinese companies described that the way by which they solve their legal problems is by paying government officers off. Only 20% of respondents claim to strictly adhere to legal procedures. Such acts create the risk that the government officers would keep coming harassing Chinese companies, expecting bribes.

-Cultural differences:

42% Chinese companies blame their attorneys for their legal issues: “Probably because of cultural differences, Kenyan people’s work pace is far slower than Chinese people. They can never finish up their work in line with my expectation.” says Ms. Zhang, a Chinese businesswoman in Kenya.

 

The Mombasa-Nairobi issue:

 One of the main problems and issues as we stated before is the transparency between the government and the inhabitants. Kenya's government has not been transparent with the deals and agreements it has been making with China. Case in point, Kenya's citizens were not informed of the initial deal for the Mombasa-Nairobi railway, which was signed on May 11, 2014. The deal's details revealed that the pact would be governed by Chinese laws, with all disputes being arbitrated in Beijing. Also, the contract even has a confidentiality clause gagging Kenya from making the deal public, without permission from the lender, China. For many Kenyans, the confidential clause raises a lot of suspicion within the country. The people of Kenya recently found out that Kenya may lose Mombasa, its largest and most developed port if it cannot pay back the loan from China.

-We can conclude that the root causes of Kenya's current economic problem is corruption, opaque deals, and not being transparent to the public, racism, and discrimination in the workplace, unfair competition in the market, unemployment, and last but not least debt.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References[edit]

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