Disclaimer:
Opinions expressed in the case studies and any errors or omissions
therein are the responsibility of their authors and not of the
editors of this volume or of the institutions with which they are
affiliated. The authors of the case studies wish to disassociate the
institutions with which they are associated from opinions expressed
in the case studies and from any errors or omission therein.
> Case
Studies main page
> Introduction
ON THIS PAGE:
> I. The problem in context
> II. The local and external players and their roles
> The government
> The private sector
> Civil society, research and academic institutions
> Academic and research institutions
> Co-ordination of WTO matters in Kenya
> Negotiations in agriculture: some insights into Kenya’s WTO participation
> III. Challenges faced and the outcome
> Effectiveness of the NCWTO
> Participation in NCWTO meetings by stakeholders
> Inclusiveness and awareness
> Notifications
> IV. Lessons for other players
> Reference
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I. The problem in context back to top
Kenya was among the founding members of the
World Trade Organization (WTO) when the Marrakesh Agreement was signed
in Morocco on 15 April 1994. The notification process was completed by
31 December 1994, when accession to the WTO was completed. As a member,
Kenya is signatory to all WTO agreements including the General Agreement
on Tariffs and Trade (GATT), the Agreement on Agriculture (AOA), the
General Agreement on Trade in Services (GATS), the Agreement on Textiles
and Clothing (ATC) and the Agreement on Trade-Related Intellectual
Property Rights (TRIPS).
As in many other countries, trade issues in
Kenya involve a large number of stakeholders with diverse interests. For
effective policy formulation, it is important that all the stakeholders
are effectively involved in the decision-making process. This is because
not only are trade matters, particularly WTO-related ones, complex, but
they also overlap and have far-reaching consequences. While there have
been bold attempts in Kenya to engage all the stakeholders in the
decision-making process, the pursuit of high-level strategic objectives
in trade is undermined by the lack of any effective mechanism for
co-ordination and consultation. This may have undermined the country’s
policy stance. It may also have resulted in poor participation by some
stakeholders. Like other developing countries, Kenya also lacks capacity
in the formulation of trade policy.
II. The local and external players and their roles back to top
WTO trade-related matters in Kenya involve a
number of stakeholders. These include the government, the private sector
and civil society organizations. These stakeholders not only have varied
interests, but also have varying capacities to engage in WTO matters.
What follows is a brief overview of the different stakeholders and their
roles.
The government
back to top
The government is obviously one of the main
stakeholders in trade matters. Overall responsibility for trade matters
lies with the Ministry of Trade and Industry (MTI), although other
ministries handle some trade-related matters. The MTI is responsible for
the WTO and Common Market for East and Southern Africa (COMESA) issues,
while the Ministry of Planning is responsible for ACP-EU Cotonou matters
and the Ministry of Foreign Affairs for East African Community (EAC)
matters. This fragmentation of trade responsibility has undermined the
development of synergies of the WTO and other trade arrangements in
Kenya.
Within the MTI, the WTO Division in the
Department of External Trade is responsible for co-ordinating action
within government on the Doha Round of trade negotiations as well as all
other WTO matters. The WTO Division has a number of professional staff
both within Kenya and at the Kenyan mission in Geneva, which deals
exclusively with WTO matters. Although a crucial division on trade
matters, it lacks the requisite capacity to undertake analysis of trade
policy issues and the implications of tariff reduction. This, in turn,
has limited the country’s capacity to negotiate at the WTO.
The private sector
back to top
The private sector in Kenya is becoming an
increasingly important actor on trade matters, including WTO issues. It
has shown a keen interest in engaging the government on trade policy
issues. For long time the private sector in Kenya was not organized and
was rarely represented in important policy formulation processes.
However, a number of private-sector organizations have recently emerged
to present and articulate the views of the private sector, and have been
active on WTO trade-related matters. These include labour unions, trade
associations, the Kenya National Chamber of Commerce and Industry (KNCCI),
and a number of producer associations. However, the capacity of the
private sector to participate varies. Most private-sector organizations
lack the analytical capacity to comprehend the implications of trade
measures. They also lack information on trade issues, which prevents a
full understanding of trade agreements and measures. The other problem
with the private sector organizations is that they tend to have
different interests and do not in most cases have a common position on
economic and trade issues. The private sector in Kenya generally tends
to have enclave interests.
Civil society, research and academic
institutions back to top
A remarkable development of the trade policy
formulation process in Kenya has been the emergence and participation of
civil society organizations (CSOs), some of which include a mix of
various livelihood groups, including the poor. In most cases they have
sought to represent the poor in WTO issues, and a number have been
active in such issues, including the Kenya National Federation of
Agricultural Producers (KENFAP), ActionAid (Kenya), Oxfam, EcoNews,
Consumer Information Network, RODI, SEATINI, the Institute for Economic
Affairs, the Heinrich Böll Foundation and the Kenya Human Rights
Commission. The participation of the CSOs has again been constrained by
a limited capacity to undertake analytical studies on the impact of
trade issues. A lack of financial resources has also limited the
participation of some CSOs, especially community-based organizations (CBOs).
As discussed in the next section, CSOs are better organized than the
private sector in finding common ground on which to engage government.
Academic and research institutions
back to top
Academic and research institutions have been
the main organizations carrying out research on trade issues in Kenya.
As such they have provided an important resource to government, the
private sector and civil society. They also, however, face a number of
challenges including lack of resources for research.
Co-ordination of WTO matters in Kenya
back to top
On acceding to the Marrakech Agreement, Kenya
established the Permanent Inter-Ministerial Committee (PIMC) in May 1995
to advise the government on all matters pertaining to the WTO. However,
being an inter-ministerial committee, it excluded some key stakeholders,
particularly those from the private sector and civil society. In
recognition of the important role these actors could play in trade, in
1997 the government restructured the PIMC by including the private
sector and civil society. Subsequently the PIMC was re-branded as the
National Committee on WTO (NCWTO). Thus the NCWTO is the body through
which the government consults with the private sector and civil society
on WTO matters, and it is also the main trade co-ordinating body.
The NCWTO was established with a mandate
to:
- study and analyze the provisions of the WTO agreements and their
likely effects on the Kenyan economy;
- monitor the implementation of WTO agreements by other members and
recommend appropriate action for Kenya;
- provide modalities for implementation of the WTO agreements by
Kenya so as to ensure maximum gains from multilateral trade;
- provide government and the private sector with the necessary
analysis of new market access conditions to enable identification of
immediate and potential trading opportunities created within the
multilateral trade system;
- provide government with adequate information on the sectoral
impact of the various agreements in order to enable it to review
current and future trade policies;
- increase the government’s awareness level regarding the
institutional and legislative means by which it could safeguard its
trade rights and obligations in multilateral trading systems;
- enhance awareness among various stakeholders through fora and
training; and
- promote a dialogue between the public and private sector and build
a consensus on WTO issues in Kenya.
The NCWTO is the forum in which the
government, private sector and civil society engage in WTO matters.
Within the government arena, the Attorney General, the Office of the
President and the ministries of Trade and Industry, Finance, Planning
and National Development, Health, Agriculture, Foreign Affairs, Labour
and Human Resources, Environment and Natural Resources, Information and
Communications, and Transport all participate actively in the NCWTO. The
ministries act as the focal points for sub-committees handling relevant
WTO issues, the Ministry of Health thus being the focal point for all
health issues and the Ministry of Agriculture the focal point for all
agricultural-related issues, and so on. A number of state corporations
and parastatals such as the Kenya Revenue Authority (KRA), the Kenya
Bureau of Standards (KEBS), the Kenya Plant Health Inspectorate Service
(KEPHIS) and the Kenya Sugar Board (KSB) are members of the NCWTO.
Others include the Central Bank of Kenya (CBK), the Export Promotion
Council (EPC), the National Environment Management Authority (NEMA), the
Kenya Industrial Property Institute (KIPI) and the Capital Market
Authority (CMA).
Membership of the NCWTO is by invitation only.
As national co-ordinator the MTI identifies the relevant stakeholders
who are then invited to become members of the NCWTO. In a few instances,
members of the sub-committee can identify other relevant stakeholders
that could be co-opted. A few organizations or individuals have
expressed interest in joining; there are no other formalities for
becoming a member, as new members are simply entered into a list and
invited to attend subsequent meetings. There is no limit to the number
of stakeholders that can be members of the NCWTO, although preference
has been given to organizations rather than individuals. There are
currently around forty-five members of the NCWTO representing different
umbrella organizations and institutions. Around twenty-five CSOs are
members of the NCWTO, although only seven are active.
Outside the NCWTO, CSOs have organized
themselves into a loose network co-ordinated by EcoNews (a Kenyan NGO).
This network of NGOs provides a forum for civil society to consolidate
their deliberations, which are then passed on to the government. In the
recently concluded Cancún talks, Kenyan civil society played a pivotal
role not only in developing the country’s position but also in
facilitating attendance for some delegates. According to one
interviewee, ‘the civil society organizations have been commissioning
research projects on various trade issues whose findings feed into
strengthening deliberations for the Kenyan trade position. Civil society
also sponsors some of the activities of the NCWTO and recently sponsored
the participation of a substantial number of delegates to Cancún
including parliamentarians.’
As indicated earlier, the NCWTO is an advisory
body for the government on WTO issues. The advice given to the
government is generated through deliberations and consultation within
the national committee. Because of the number and technical nature of
the issues coming from Geneva, the NCWTO formed sub-committees with
specific expertise to handle different issues. There are currently
around ten sub-committees dealing with diverse issues. They include:
- the Agriculture Sub-committee, chaired by
the Ministry of Agriculture;
- the Services Sub-committee, chaired by the
Ministry of Transport and Communications;
- the Market Access Sub-committee, chaired by
the Department of Industry, ULI;
- the Trade and Environment Sub-committee,
chaired by the National Environmental Management Authority (NEMA);
- the Trade Facilitation Sub-committee,
chaired by the Department of Internal Trade, ULI;
- the Trade and Competition Sub-committee,
chaired by the Monopoly and Price Commission;
- the Trade and Investment Sub-committee,
chaired jointly by the Investment Promotion Council (IPC) and the
Ministry of Finance;
- the Transparency and Government Procurement
Sub-committee, chaired by the Ministry of Finance;
- the E-Commerce sub-Committee, chaired
jointly by the Ministry of Transport and Communication and the ULI; and
- the Trade-related Intellectual Property
Rights Sub-committee, chaired jointly by KIPI and the MTI.
Membership of sub-committees is much more open
than is the case with the NCWTO, as it depends on the subject being
handled and the stakeholders’ interests. Whenever an issue arises,
relevant sub-committees will call a meeting to deliberate on the issue
and forward its deliberations to the NCWTO. Each sub-committee would get
most of their inputs from the focal points (see Appendix, p. 298), which
have the capacity to handle technical issues. Once the sub-committees
submit their guidelines to the NCWTO, a meeting of the NCWTO is called
for further deliberations on these guidelines. The NCWTO then mandates
the Secretariat (Department of External Trade — MTI) to submit the
deliberations to the Kenyan mission in Geneva. There are, however, cases
when immediate responses are of the essence and sub-committees
communicate directly with the Geneva team. This is allowed within the
NCWTO. Our survey revealed that NCWTO meetings are seldom convened,
except to prepare for major conferences such as the Cancún Ministerial
Meeting in 2003. Afterwards, very few meetings are called. Most of our
respondents felt that the NCWTO should hold regular meetings for
discussions, even in the absence of any WTO issues, in order to keep
members abreast of the issues and enable the committee to be proactive.
Decision-making in the NCWTO is by consensus.
However, when decisions cannot be reached by consensus, voting may be
used. At the sub-committee level, the decision-making process begins
with the focal point which will make proposals on WTO issues coming from
Geneva. However, before these proposals are presented to the
sub-committee, they must be ratified by either the ministries or the
organizations where the focal point is based. When the sub-committee
meeting is held, members consider the position taken by the focal point
for further deliberations. The decision taken by the sub-committee is
then forwarded to the NCWTO, where all members deliberate on the
position and adopt or amend it. At this level, decisions are made by
consensus. There are cases where the national committee has vetoed a
position taken at the sub-committee level and adopted a completely
different position. Once the national committee has ratified a position,
it is passed over to the MTI, which then passes it on to the negotiating
team in Geneva through the Permanent Secretary (PS).
To ensure full implementation of all WTO
agreements, particularly the Sanitary and Phytosanitary Standards (SPS)
and Technical Barriers to Trade (TBT) Agreements, Kenya identified a
number of focal points, which are organizations with expertise and
competence in particular WTO issues. These focal points serve as the
nerve centre for the relevant sub-committees by providing technical
input on the specific issues handled by the sub-committee. Similarly,
there are national enquiry points (NEPs) established to help disseminate
crucial information related to trade issues. For instance, the Kenya
Bureau of Standards (KEBS) is a focal point and also the NEP on matters
relating to standards of or technical barriers to trade. Likewise, the
Kenya Plant Health Inspectorate Service (KEPHIS) and the Kenya
Intellectual Property Institute (KIPI) are the enquiry points on issues
on the SPS and Intellectual Property Rights, respectively. There are
also a number of reference points that store and disseminate WTO-related
reference materials. They include the Department of External Trade
within the MTI, which is the reference point for the public sector; the
Centre for Business Information in Kenya (CIBK) within the Export
Promotion Council, for the business community; and the Kenya Institute
for Business Training for academia. Recently, the National Assembly has
been identified as a reference point for parliamentarians.
Negotiations in agriculture: some insights
into Kenya’s WTO participation back to top
To demonstrate how Kenya participates in the
WTO, Kenya’s experiences in agricultural trade negotiations are
presented below. Kenya’s participation in the WTO largely revolves
around agriculture; it forms the backbone of the economy and produces
the country’s major exports. This is not to say, however, that other
issues are less important. Kenya has also been very active in issues
related to trade in services and intellectual property rights.
Agriculture-related issues are negotiated on
two main fronts. First, there are the regular responses on issues from
Geneva on which members are expected to take positions. The positions
members take are presented as proposals which are then defended in
Geneva. The second front is during inter-ministerial meetings like the
recently concluded talks in Cancún. This is where countries make major
decisions on trade matters within the WTO framework. Members have tended
to form groups around particular interests and to take common positions
during ministerial meetings; in Cancún, there were three main groups,
G20, G90 and the European Union (EU)/US axis. Kenya was in the G90
group. The positions a country takes will, therefore, to a large extent
be influenced by the position of other countries. This section seeks to
provide some insights into the former case where positions are largely
taken internally. The focus is on the processes involved, the actors and
outcomes.
As indicated earlier, Kenya maintains a
negotiating team in Geneva to present Kenya’s positions on various
issues, as well as to monitor and relay information on a daily basis on
WTO events. These include notifications by other countries. Where
situations arise and Kenya needs to respond, the Geneva team relays the
information to the Ministry of Trade and Industry, which also act as the
secretariat to the NCWTO. Once the information is received at the
ministry, the ministry contacts the relevant sub-committee, in this case
the sub-committee on agriculture, which is headed by the Ministry of
Agriculture. At the same time, the information is passed on to the other
stakeholders awaiting deliberations in the sub-committee.
At the Ministry of Agriculture the contact is
usually the WTO desk officer. There is currently one officer in the
ministry handling WTO issues. The current desk officer has been in the
position for the last six months after his predecessor left to work for
an NGO. This epitomizes the inconsistency and lack of continuity in the
ministries. The desk officer’s role is essentially that of providing
technical inputs into the issues from Geneva and formulating a position.
Once this is done, the officer presents the position to the head of
division, who may or may not moderate the position taken. The next step
is then to present the position to the Director of Agriculture who is in
charge of all technical matters in the Ministry. Again, the Director of
Agriculture may moderate or alter the position, although no examples of
this could be found. The Director of Agriculture is then expected to
brief the Permanent Secretary on the position. Once the Permanent
Secretary accepts the position it becomes the position of the Ministry
of Agriculture. Only in a few cases is the minister involved. This
happens whenever the issues are weighty and are considered to be
crucial.
As the focal point, the Ministry of
Agriculture then convenes the Sub-committee on Agriculture to solicit
the views of the other stakeholders. At the sub-committee, it is the
responsibility of the focal point, in this case, the Ministry of
Agriculture, to explain the issues and lead by presenting the position
of the ministry. The members are then free to deliberate on the position
taken and finally reach a consensus. So far there has been no voting on
any of the agricultural issues. Although members may initially differ on
issues a consensus has always been reached. The position taken is often
a ‘negotiated’ position. One of the reasons why it has been easy to
reach a consensus within the sub-committee is because the issues under
discussion at the sub-committee are often too technical for most members
to understand. In other instances, the position of the Ministry of
Agriculture prevails.
The other reason is that members are
ill-prepared for the deliberations because they receive documents from
Geneva either during the meeting or a few days before. In most cases,
these documents are voluminous and technical. According to one of our
respondents ‘only a few people can understand the issues and the
sessions quickly become a boring lecture’.
Once the sub-committee takes a position on an
issue, it is then required to present this to the national committee. At
the NCWTO the issue is opened for further discussion by all the WTO
stakeholders and a position is taken through consensus. The position
taken is then passed on to the Ministry of Trade and Industry who then
sends it to the negotiating team in Geneva, either as it is or with
amendments depending on the government’s position.
III. Challenges faced and the outcome
back to top
As a founder member of the WTO, Kenya has made
commendable progress in WTO matters, and has been able to build the
structures necessary for the implementation of the WTO agreements. Kenya’s
success is reflected in the country’s participation in all major WTO
trade talks and the maintenance of a strong negotiating team in Geneva.
Kenya has also been able to prepare position papers on a number of
issues, even taking the lead at regional level in a number of cases.
However, Kenya still faces a number of challenges related to its WTO
participation. We discuss here some of the challenges and outcomes.
Effectiveness of the NCWTO
back to top
As earlier indicated, the NCWTO is the body
through which the government consults both the private sector and civil
society. However, the committee’s effectiveness has been compromised
by a number of factors. As constituted the NCWTO is not a legal entity,
and this has compromised both its operational and financial autonomy.
For example, it does not have a chief executive officer or a board of
management. The Department of External Trade in the MTI provides the
secretariat for the NCWTO, while the Permanent Secretary in the same
ministry assumes chairmanship. Although there have been some efforts to
give the NCWTO legal status, this has not been successful. It therefore
remains an informal advisory body until it is legally constituted.
The fact that the NCWTO has no legal mandate
has meant that the government is under no obligation to adopt its advice
and recommendations. According to a programme officer for an
agriculture-based organization that is a member of the NCWTO, ‘the MTI
downplays the submissions presented to it by the NCWTO on agriculture
because it is has no obligations whatsoever to accept them’. During
negotiations the Minister of Trade and Industry can overturn positions
developed through the NCWTO. A case in point according to this
respondent took place during the Ministerial Meeting in Cancún:
Prior to our departure to Cancún, we held a
delegates’ meeting at the Safari Park Hotel. We agreed that Kenya
would not negotiate on any of the four Singapore Issues until the
Agreement on Agriculture was resolved. The Minister for Trade and
Industry was to uphold this decision. However, in Cancún the minister
allegedly changed position and was willing to negotiate on trade
facilitation contrary to the earlier position we had taken in Kenya.
This did not please most of us delegates and other developing countries
who viewed Kenya as a torchbearer.
Functionally, the NCWTO is incapacitated
because of its weak legal status. The organization has no chief
executive and lacks the requisite capacity to handle some of its
activities. For one, the NCWTO lacks the financial capacity to operate
effectively. The Treasury has no obligation to allocate funds to the
NCWTO because it is not by law a government agency, and the NCWTO does
not have its own budget from the government. Other than the funding
provided by the Joint Integrated Technical Assistance Programme (JITAP),
which played a key role in its establishment, the NCWTO has relied on
donors and well-wishers. According to a respondent, ‘since JITAP I
[1998-2002] ended, activities of the NCWTO have came to a standstill. It
is only through the financial support of civil society organizations
that a few activities have been going on.’ This has led to irregular
meetings, poor information flow and poor co-ordination among members.
Lack of human resources makes the NCWTO rely on members of staff from
the MTI, who are also required to perform other ministerial duties.
Participation in NCWTO meetings by
stakeholders back to top
Attendance at NCWTO meetings has generally
been considered to be poor; attendance is relatively higher among
government officials than among the private sector or civil society. It
is important to note at this point that members have no obligation to
attend the NCWTO meetings. The relatively high participation by public
officials is because, in most cases, they play a facilitating role. The
participation of public officials is, however, affected by the fact that
they are transferred from one ministry to another. Participation by the
private and civil society organizations is driven more by self-interest,
for example profit maximization in the case of private-sector
organizations. The survey revealed that private-sector organizations are
more interested in the East African Community (EAC) and the Market for
Eastern and Southern Africa (COMESA), since they are their major
markets. Private-sector organizations are not very interested in WTO
issues: a respondent in one of these organizations concurred with this
position, saying that ‘WTO is far off and our members concentrate on
COMESA issues’; the NCWTO calls ‘too many meetings, which sometimes
coincide with EAC or COMESA trade meetings in which we have direct
interest. We also do not have many officers who like government.’
Another respondent had this to say: ‘The notices for WTO meetings are
never sent on time and this demotivates us.’ The transfer of officials
from one ministry to another impedes the smooth running of activities in
the NCWTO. There is generally more consistency within the civil society
than government.
The NCWTO is supposed to organize meetings for
members on a regular basis. However, the survey revealed that there are
spells when the NCWTO does not convene meetings; for instance it has
called only one meeting since the Cancún Ministerial Meeting in 2003.
This could be associated with the costs involved, so that active
stakeholders felt that there is a need to look for alternative venues so
that meetings can be held more regularly, otherwise interest may wane.
Even though the NCWTO has been involved in training, some respondents
complained that only government officials received any training;
capacity development should extend to other members. Participants should
be allowed to sponsor themselves if they are able. Similarly, the
calendar of NCWTO events should be less closely linked to ongoing
business in Geneva. Currently, the Department of External Trade in the
MTI has been the main facilitator of NCWTO activities. This has been
done with the support of the JITAP. Through the JITAP, a consultant was
hired to work hand in hand with the MTI in co-ordinating NCWTO matters
(many respondents referred us to this consultant). Although we were not
able to get this person’s terms of reference or obtain an interview,
we were informally told that the consultant is charged with the
responsibility of organizing NCWTO activities and ensuring that the
members receive communications on time. While some respondents felt that
this was a good effort and should be strengthened, others said that the
consultant was making the NCWTO work unnecessarily complicated.
Inclusiveness and awareness
back to top
A primary reason for the establishment of the
NCWTO was to ensure that all stakeholders are brought on board. Although
this has to a large extent been achieved, a number of actors are still
out of the loop. For example, the Kenya Fish Processors and Exporters
Association (AFIPEK) is not a member of the NCWTO, and yet fish is an
important export subject in WTO regulations. Asked whether they were
members of the NCWTO, the respondent in AFIPEK said, ‘We have never
attended a single meeting organized by the NCWTO. We have never been
invited. The NCWTO is purely a group of government officials. The
private sector, including ourselves, have never been invited.’ This
comment illustrates a feeling of exclusion and a low level of awareness
on WTO matters. We did not interview the Kenya Textile Manufacturers and
Exporters Association, but indications were that they are not members of
the NCWTO, despite the importance of textiles in external trade.
As the supreme body for the formulation of
laws in the country, parliament has an important role to play in the
formulation of trade policies. As an institution, parliament is not
represented in the NCWTO, neither does it have direct links. Parliament’s
involvement in WTO issues has generally been weak, due to lack of
awareness and interest. According to an interviewee, ‘in 1998, the
NCWTO invited all the members of parliament to an awareness breakfast
session to inform them of the importance of WTO issues. To the surprise
of the NCWTO only ten out of 210 MPs that were invited turned up. It is
no a secret that most MPs are not conversant with WTO issues. Involving
MPs in the NCWTO meetings has not been easy … even when MPs attend
WTO meetings, they hardly sit after tea break’. To increase awareness
of the WTO among parliamentarians, the National Assembly has been turned
into a reference point. Another interview with a member of civil society
revealed that ‘the inclusion of five MPs in the Kenyan delegation to
Cancún (2003) was also a significant step towards creating awareness
among the parliamentarians’. Some civil society organizations,
particularly EcoNews, ActionAid and SEATINI, are working directly with
the Parliamentary Trade and Finance Select Committee.
General public awareness of WTO issues also
remains low in Kenya. Although general awareness has been increasing in
the last few years, a huge segment of the population, especially those
in the rural areas, remains ignorant. The NCWTO has not been very
successful in its public awareness programme. A statement by a farmer in
one of the awareness workshop highlights this fact: ‘The WTO seems to
be a very good organization. When is it coming here to build us a
market?’ (a respondent involved in an NCWTO sensitization seminar
narrated this to us).
Notifications
back to top
Kenya has been unable to respond through the
NCWTO to a single notification since 1997.(1) Even after NEPs and focal
points were set up to issue notifications, performance has been poor. We
found that NEPs are not interlinked and worked more or less
independently of each other. A recent case in point is when the
government through the Ministry of Transport and Communication
introduced measures for speed governors and safety belts to be fitted in
all public transport vehicles. Ideally, Kenya should have issued a
notification through the NCWTO to all WTO members who may have an
interest in undertaking such activity in Kenya, but this was not done.
According to one of the respondents, ‘there are so many things that we
need to issue notifications on but we have failed to do so. We have the
format to do it but the channel of notification is clogged by the
ineffectiveness of the NCWTO.’ There are no formal structures to
handle notifications in Kenya.
The effectiveness of the NCWTO has also been
impaired by the fact that trade issues are addressed by different
ministries. For instance, EAC affairs are handled in the Ministry of
Foreign Affairs, COMESA by the Ministry of Trade and Industry, and
ACP-EU by the Ministry of Planning and National Development. The problem
is that there is no linkage between different offices. Kenya ends up
making different commitments in different trade initiatives; an example
of this is the tariff commitment under the EAC, which is different from
the WTO commitment on the tariffs. Implementation of such agreements
becomes not only difficult but also expensive for the country.
IV. Lessons for
other players back to top
Kenya’s participation in the WTO provides a
number of lessons for other players. These are
- The need for an effective co-ordination
and consultation mechanism. Benefits accruing to countries from the
multilateral trading systems depend on, among other things, the extent
to which trade policy issues are co-ordinated at the national level and
the subsequent capacity to negotiate in Geneva. Kenya’s experience
shows that co-ordination of WTO matters has been weak and that this
could have undermined the country’s position. Co-ordination at
international level requires adequate legal and resource backing,
something which has been missing in the Kenyan case. Lack of financial
and human capacity seriously impedes Kenya’s capacity to participate
effectively in trade negotiations. The survey revealed that a lack of
skills at NCWTO and sub-committee levels seriously affects deliberations
on WTO issues.
- The need for analytical capacity.
The Kenyan experience indicates a lack of analytical capacity in
government, the private sector and civil society. Although some of the
key institutions are staffed with personnel to carry out impact
assessments, their capacity is largely inadequate. the case of Kenya,
there is a need to strengthen the analytical skills of civil society
organizations that are involved in trade matters and government
ministries. Training in policy analysis is a necessary condition for
effective policy-making by enabling policy-makers to understand the full
implications of various trade proposals and agreements.
Fig 1: Structure of Kenya’s participation in
the WTO.
- Fragmentation of responsibilities on
trade matters. Apart from being a member of the WTO, Kenya, like
many other countries, is a member of other trading arrangements, in this
case the EAC and COMESA. In Kenya, the responsibility for co-ordinating
these activities is with different ministries and departments and this
has undermined unity in decision-making. Kenya has also not been able to
exploit synergies that would be experienced through the joint and
simultaneous implementation of WTO and regional trade arrangements.
References
back to top
ActionAid Kenya (2003). ‘Action Forum: Trade
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Ikiara, G. K., Olewe-Nyunya J. and Odhiambo,
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Odhiambo, W., and Kamau, P. (2003). ‘Public
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Stamp, Maxwell (2003), ‘Republic of Kenya
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World Trade Organization (2000), Trade
Policy Review: Kenya, Geneva: WTO
NOTES:
1.- In an effort to increase the transparency of
members’ trade policies, WTO regulations require that all trade laws,
regulations, judicial decisions and administrative rulings be made
public by informing all WTO members whose trade may be affected by the
decision. This is what we call notification according to Art. X of GATT,
Art. III of GATS and Art. 63 of TRIPS. back to text
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* Walter Odhiambo and Paul Kamau are Research Fellows at the
Institute for Development Studies, University of Nairobi. Dorothy
McCormick is Associate Research Professor and Director of the Institute
for Development Studies, University of Nairobi.
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