Power Utility Distributor Extends Internet to Homes

The fibre to the home partnership between electricity distributor Kenya power and telecommunication services providers like Safaricom is a novel approach to cost cutting efficiency and universal access. 

On cost efficiency, apparently it costs about KSh 7,000 to bury a meter of fibre optic cable, but the cost of hanging the internet cables on power poles is significantly lower.  Kenya Power also says that it will make savings by using its existing labour force to connect fibre cables to homes. 

See more here.

Retail Distribution Services in Kenya

This is an interesting piece on the retail distribution services sector and the inflow of foreign brands into Kenya.  The growing retail sector has attracted international brands such Foshini Group, French supermarket chain Carrefour and fast-food companies like Pizza Hut, Subway and Burger King.  

Read more here.

Conference and Business Tourism Services in Kenya

This is an interesting piece. 

Apparently Kenya hosted 243 global and continental meetings in 2016 which attracted multi-billionaires and many Heads of State and government to the country.  In addition to conference tourism, Kenya is also seem as a business services hub by institutions seeking to access the greater EAC region and beyond.

Read more here.

Positioning Services Reforms and Negotiations for Development

This is dated but I thought I should post it here for my records. Positioning Services Reforms and Negotiations for Development presented in Nairobi Kenya.

India Files WTO Challenge Against US Visa Fee Increases

India has has filed a dispute against the US under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) which constitutes Annex 2 of the WTO Agreement and has requested consultations with the US.

According to the dispute, under the Consolidated Appropriations Act of 2016, Washington increased fees for L-1 type visas by US$4500 and for H-1B type visas by US$4000 for companies with 50 or more employees in the US, if more than 50 percent of their employees are non-immigrants employed on such visas. It was signed into law by President Barack Obama in December 2015, with the measures in place through September 2025.

H1B is work permit for temporary specialty workers while L1 visas are issued for intra-company transfers that allows companies to relocate qualified employees to US offices.

India claims that these measures, along with earlier fee increases between August 2010 and September 2015, appear to violate the US’ commitments under its Schedule of Specific Commitments under the WTO’s General Agreement on Trade in Services (GATS) – the set of global rules involving services trade- along with being inconsistent with other GATS provisions. 

India claims that the visa fee increases: 

appear to: (i) be inconsistent with the terms, limitations and conditions agreed to and specified by the United States in its Schedule of Specific Commitments under the GATS, (ii) accord to juridical persons of India having a commercial presence in the United States treatment that is less favorable than that accorded to juridical persons of the United States engaged in providing like services in sectors such as the Computer and Related Services sector with respect to which the United States has taken commitments in its Schedule of Specific Commitments, and (iii) affect the movement of natural persons seeking to supply services in a manner that is inconsistent with the United States' commitments in its Schedule of Specific Commitments. These measures also appear to nullify or impair the benefits accruing to India directly and indirectly under the GATS. 

In its complaint, India said that the current measures (of visa fee hike) result in less favorable treatment for Indian companies with commercial presence in the US in comparison to US companies engaged in providing like services and according to the GATS Schedule. 

This violates the principle of ‘national treatment’ embedded in multilateral trade rules, which lays down that foreign companies will be treated on a par with local firms. 

The Government of India is of the view that these and comparable measures, taken by the United States are not in conformity with at least the following provisions of the GATS: Articles XVI, XVII, XX, and paragraphs 3 and 4 of the GATS Annex on Movement of Natural Persons Supplying Services. These measures also appear to be inconsistent with Articles III:3, IV:1 and VI:1 of the GAT 

Furthermore, New Delhi is also claiming that recent US changes to its numerical commitment for H-1B visas – specifically due to modifications Washington has made under FTAs with Singapore and Chile – also are inconsistent with its GATS schedule. 

According to the consultations request, the US included under its horizontal commitments regarding mode 4 – that involving the movement of natural persons – that it would permit up to 65,000 people annually on a worldwide basis under the category of fashion models and specialty occupations. 

Under the two FTAs mentioned above, these “numerical commitments” have allegedly been changed. According to India, US homeland security officials must now set country-specific limits for both countries, with these numbers taken away from the global total of 65,000 receiving H-1B visas.

New Database on Trade in Services

A new services database has been developed and it may be an interesting tool for policy makers. I-TIP Services is a joint initiative of the World Trade Organization and the World Bank. It is a set of linked databases that provides information on Members' commitments under the WTO's General Agreement on Trade in Services (GATS), services commitments in Regional Trade Agreements (RTAs), applied measures in services, and services statistics.

In its four modules (GATS, RTA Commitments, Applied Regimes, and Statistics), the integrated database permits searches by Member, sector, agreement, or source of information.

To access the database click here.

Tanzania's Labour Laws and the EAC

According to sources, the Association of Tanzania Employers (ATE) has disagreed with President Jakaya Kikwete’s position on closing the labour market to other East African nationals. ATE executive director Aggrey Mlimuka said freely allowing skills to flow in will expand the economy, which in turn will create more jobs.

Delivering a speech to the National Assembly recently, President Kikwete said Tanzania’s stand against opening up its labour market in accordance to the East African Common Market Protocol is among the reasons why the country is being sidelined by other member states. The EAC Common Market Protocol was adopted and signed on November 20, 2009, by member Heads of State, and entered into force on July 1, 2010, officially allowing for free movement of labour. Recent World Bank findings show that East Africa would benefit greatly from free trans-border flows of labour, as they would allow for a more efficient allocation of skills that are relatively scarce in some partner states as well as provide employment to idle skill resources in others.

Mr Mlimuka said it was wrong for Tanzania to close the labour market wholesale. He suggested that Tanzania review its laws to allow foreigners to work in the country and complement the weak local labour force. He said Tanzania could stipulate that the foreign worker have a local person understudying them during the contractual period. That way, the local labour force would become competitive across the region. 

It is important to note that the cost of a work permit in Tanzania is $2,000, Zanzibar $150, Burundi charges 30 per cent of the salary; in Kenya, Rwanda and Uganda the permits are issued free of charge to East African nationals.

According to other sources, an ongoing crackdown on EAC immigrants in Tanzania is fueling fresh doubts about the country’s commitment to the East African Community as Tanzania and its partners within the bloc continue to pull in different directions on regional integration.

According to a study titled An Assessment of the Implementation of the EAC Common Market Protocol Commitments on the Free Movement of Workers commissioned by the East African Business Council (EABC) and the East African Employers’ Organisation, Tanzania’s work permit regulations emphasize immigration control measures instead of work related requirements. According to ATE, the cost of work permits and the complicated procedure for their approval are the biggest impediments to free movement of workers into Tanzania. The EABC study reveals that East Africa is facing a middle-level skills vacuum. In Tanzania, for example, middle-level professionals account for only 12 per cent of the total number of professionals in engineering and just six per cent in accounting. According to the Study, "the figures for accounting seem particularly low if compared with Kenya, where accounting technicians exceed the number of qualified accountants by a factor of four. In Tanzania, qualified accountants exceed accounting technicians by a factor of 16,” the research reveals. This means that in Tanzania, for every 16 qualified accountants there is only one accounting technician, the opposite of the normal pyramidal labour structure in a modern economy. In addition, according to the Study, there is a shortage of mid-level skills in most of the EAC.

Last month, the Tanzanian government said it would not waive work permit fees for East Africans seeking jobs in the country until some of the laws to do with immigration, capital flows and security have been assessed and revised.

Intra-African Investment Predominately in Services Sectors

According to Economic Development in Africa Report 2013, available data indicate that intra-African investment is becoming important in several African countries. For example, between 2008 and 2010, Botswana, Malawi, Nigeria, Uganda and the United Republic of Tanzania received more than 20 per cent of their total inward stock of FDI from other African countries. Furthermore, it is estimated that intra-African FDI in new projects grew at an annual compound rate of 23 per cent between 2003 and 2011. A growing share of intra-African FDI goes to the services sector. 

Between 2003 and 2011, about 68 per cent of the 673 deals relating to intra-African greenfield investments went to services, compared with 28 per cent for manufacturing and 4 per cent for the primary sector. Within services, about 70 per cent of the deals were in finance. To the extent that manufacturing firms rely on business services, the growth of the service sector is likely to have a positive impact on the development of productive capacity and therefore the performance of manufacturing firms and intra-African trade.

Regional Approach to the Integration of Logistics Services in the EAC

Article I wrote for EABC in 2013 republished here.

The five East African Community (EAC) countries vary in their degree of integration into world markets, global supply chains and application of global best practices in trade logistics. The 2012 publication Trade in the Global Economy, compares the Logistics PerformanceIndex (LPI) of 155 countries and is measurement of the logistics efficiency of an economy. The performance of the EAC Partner States is poor overall, and not surprisingly it varies widely between the landlocked and transit countries. Tanzania for instance scores the highest LPI in the EAC region with a rank of 88 out of 155 countries, followed by Kenya at 122, Rwanda at 139 and Burundi at 155. Landlocked economies are geographically disadvantaged and restricted with regard to transit and logistical transport conditions outside their borders and hence faced with longer transit times and higher transit and transport costs. Recent studies show that importing into a landlocked country typically takes a week longer than its coastal neighbors while freight costs alone can be up to 40 per cent of export values for landlocked developing countries. The higher costs are caused by inadequate transit transport inter-modal connections, poor regulation and service and to address these concerns, the EAC region could benefit from a regional approach to streamline the logistics services sector and consolidate the broad range of logistics institutions, private sector, and relevant stakeholders into a single cross-border transport, logistics system and platform.

African economies generally have the highest trade logistics costs in the world and the EAC is not an exception to this trend. In a recent study, a set of estimates for Kenya, Tanzania and Uganda places the average cost of trade logistics services at the equivalent of a tax of between 25 and 40 percent on value added, which is rather alarming. For this reason, overall performance of the logistics sector in the EAC can impact negatively on the regions trade competitiveness, trade expansion, export diversification, ability to attract foreign direct investments, and invigorate economic growth. While infrastructure is an important and costly constraint, institutions, the regulatory environment and regional cooperation are equally vital for efficient logistics services and the consolidation of the EAC customs union and common market. 

Logistics services encompass streamlined door-to-door multimodal transport services from a logistics chain perspective and they determine the cost of getting goods from point of supplier to point of buyer. These services include services auxiliary to all modes of transport such as maritime, road, air, rail and pipeline services, freight and include other relevant services such as courier, cargo and freight services, customs broker services, testing services, warehousing, distribution, information and communication management and some aspects of financial services. Logistics services have become an increasingly large obstacle to Africa’s trade performance because of a profound change in the nature of international trade that has taken place in the last quarter century: the explosion of “trade in tasks.” In some manufacturing activities, a production process can be decomposed into a series of steps or tasks and since transport and coordination costs have fallen in many parts of the world, it has become efficient to produce different steps in the process in different countries. Even though African enterprises could compete with Chinese and Indian firms in factory floor costs in some product lines such as garments and other simple manufactured goods, overall African producers might be unable to compete given that the cost and efficiency of logistics services in the continent is a major supply side constraint 

Reforms are underway in the EAC region, to consolidate the customs union through various separate interventions, including harmonization of policies and regulations, modernization of transport and border management institutions, the NTB monitoring mechanism, standards and testing and investment in infrastructure. The 2012 World Bank Doing Business Report indicates that all 5 EAC economies implemented 11 combined regulatory reforms in trade facilitation, in areas such as the electronic submission of documents, risk management systems for inspections and joint border cooperation. While this is commendable, rather than individually address interlinked trade logistics issues, the EAC Partner States could jointly consider a comprehensive program on trade logistics services to address the weakest links in the macro-supply chain and thereby stimulate cooperation between public and private players. A legal instrument similar to the Logistics Protocol found in the ASEAN region, could provide a cross-sectoral platform for regulatory cooperation and dialogue among government, business, and civil society. An EAC logistics sectoral protocol would also consolidate the cross-cutting objectives of the Common Market as enshrined in Part B of the Protocol on the Establishment of the Common Market Protocol. A useful place to start would be a road-map for the integration of the logistics services sector through a framework for private public consultative dialogue, progressive liberalization and trade facilitation, in order to support the enhancement of EAC competitiveness and creation of an integrated trade logistics environment. 

Postal Services Authority in Kenya Closes 56 Outlets

The Postal Corporation of Kenya (PCK) has shut down 56 outlets as increased Internet connectivity and widespread use of mobile phones has reduced demand for its services.

Data from the regulatory authority for the communications sector in Kenya, the Communications Commission of Kenya (CCK), shows that delivery of letters has fallen, with only 17.3 million sent in the quarter to December, compared to 19.7 million in the same period a year earlier.

This has forced PCK to reduce its outlets to 634 units in December, from 690, in response to the reduction in business that is compounded by the entry of private courier firms such as Roy Parcels, Nation Media Group, and security firm G4S.

“The postal market is on a downward trend as evidenced by the decline in postal traffic of local letters sent, and reduced number of postal outlets reported during the period,” said the CCK in a report.

The regulator said the Internet and other forms of communication like SMSs had overtaken snail mail.

The UN Central Product Classification classifies postal services into four main categories. Postal services related to: letters, parcels, counter services and other postal services which include mailbox rental services.

With regard to postal services pertaining to letters, during the period under review, communication via SMS increased significantly, an indication that the service could have consumed some of the traffic of local letters sent.

Mobile phone subscribers sent 3.6 billion short messages in the quarter, reflecting more than threefold growth on the one billion sent in a similar period a year earlier.

Increasing Internet use is hinged on the low cost of transactions, safety, and speed. As a result, instant massaging and e-mails have reduced the need for letter writing, denting PCK’s revenues further as more people turn to mobile phone-based platforms and computers to send money and information.

Internet penetration in the country stood at 41 per cent of the population in December (16.2 million users) from 22.7 per cent at the end of 2011.

International outgoing letters dropped to 1.9 million from 2.2 million, while incoming letters increased by 138 per cent to 191, 612.

The dwindling revenues have seen PCK turn to cost-cutting drives, including layoffs and selling of assets to remain afloat. The state owned firm, with an estimated 4,100 workers, is weighed down by millions of shillings in debt to pensioners and other creditors.

The CCK reckons that the corporation should diversify into financial services, especially agency banking, to reverse its fortunes.

“Deliberate measures such as national addressing system to facilitate delivery of letters to doorsteps, diversification into financial services and wireless Internet services across postal outlets, among others, could reverse this trend and revitalise the sector as happened in most developed countries,” added CCK. 

EALA Calls for Elimination of Work Permit Fees in the EAC

The East African Legislative Assembly (EALA) has passed a Motion for a Resolution advocating for the elimination of work permit fees for EAC citizens in the spirit of enhancing free movement of workers in line with the freedoms in the EAC Common Market Protocol.  

In this respect, the Assembly also commended the Republic of Kenya and Rwanda for taking the first steps in eliminating the work permit fees for the citizens of the EAC and urged the United Republic of Tanzania, the Republic of Burundi and the Republic of Uganda to emulate the same spirit.

Article 49 of the EAC Treaty establishes EALA as the legislative organ of the Community.  Like most legislatures EALA has as its core functions legislating, oversight and representation. Article 49 further states that EALA:

• Shall liaise with the National Assemblies of Partner States on matters relating to the Community;

• Shall debate and approve the budget of the Community;

• Shall consider annual reports on the activities of the Community, annual audit reports of the Audit Commission and any other reports referred to it by the Council;

• Shall discuss all matters pertaining to the Community and make recommendations to the Council as it may deem necessary for the implementation of the Treaty;

• May for purposes of carrying out its functions, establish any committee or committees for such purposes as it deems necessary;

• Shall recommend to the Council the appointment of the Clerk and other officers of the Assembly;

• Shall make its rules of procedure and those of its committees

The Resolution passed in the House notes that EAC citizens have been subjected to altered work permit fees in the region which are divided in to several classes catering for different professions.    The United Republic of Tanzania according to the Resolution has a total of 13 sub-classes, Uganda 9, while Rwanda and Burundi have 2 sub-classes each. 

The Resolution moved by Hon Bernard Mulengani and seconded by Hon Abubakar Zein Abubakar, takes cognisance of the fact that Article 76 of the Treaty for the establishment of the EAC recognises that within the Common Market Protocol (CMP), there shall be free movement of labour, goods, services, capital and the right of establishment.   Article 10 of the Common Market Protocol on its part, guarantees that the Partner States do provide for free movement of workers, who are citizens of the other Partner States within their territories.

Regulation 6 of the Free Movement of Workers Regulations in the EAC Common Market Protocol (CMP) states that a worker shall apply for a work permit from the competent authority within 15 days of entry into the territory of a Partner State provided they have a valid contract of employment for a period of more than 90 days.

According to the Resolution, the current fee charged to obtain work permits also vary.  In the United Republic of Tanzania, the fees range from USD 6 for peasants up to USD 3,000 for miners while in Uganda it ranges from USD 250 for missionaries up to USD 2500 for miners.   In Burundi, the fees range from USD 60 for students to USD 84 for regular workers.  The objective of the work permit is seen as a mode of earning revenue and taxes or regulation of free movement of workers.

In the Resolution thus, EALA urged the Council of Ministers to call for harmonisation of national laws in order to allow for free movement of labour and services.

Supporting the motion, Hon Abubakar Zein Abubakar said the move would create a sense of ‘East Africaness’ and would ensure ultimately, ‘Brand East Africa’ is realised.  He called for a sense of identity and mutual benefit amongst citizens and said abolishing work permits was a step in that direction.  Others noted the Motion as timely to take the integration to the next level that the region had continued to realise some benefits accruing from the Common Market Protocol and noted that the imaginary fears especially about loss of revenue and insecurity should be dispelled.  The legislator noted that today over 170 Kenyan companies had set up operations in Rwanda and the move was greatly benefiting Rwandans.   

Hon Maryam Ussi supported the motion with caution noting that there were still threats of terrorism around the borders.   ‘If international passports can be forged, then even the East African passports are subject to forgery’, the legislator remarked. On equality of jobs and provision of services, others noted that many citizens were still unable to work in the neighbouring Partner States and its was further noted that some Partner States were hiding behind bureaucracies to deny free movement noting that currently, work permit fees were also high. ‘I congratulate Kenya and Rwanda for the move to withdraw permit fees and also note that Kenya and Uganda are working on a similar bilateral move’, Hon Nakawuki said.  It was also noted that the issue of permits had been used as Non-Tariff Barriers and said the decision by Rwanda and Kenya to collaborate in the matter exemplified the Principle of Variable Geometry which applies in the integration model. 

Rising in support of the motion, Hon Abdullah Mwinyi however maintained that work permits were a monitoring instrument in absence of the identity cards.  ‘I request for a scientific analysis to see the amount of revenue raised by the citizens of the region arising from the work permits’ the Member noted.

In response, the Deputy Minister of EAC in the United Republic of Tanzania, Dr. Abdulla Sadaalla noted that harmonisation of the national laws was currently in progress and that United Republic of Tanzania had reviewed relevant laws, in alignment to the Common Market Protocol.’ I can confirm that we have finalised the review process and are now awaiting the process of ratification’, the Minister remarked.  Hon Leontine Nzeyimana, Minister of EAC in the Republic of Burundi pledged the Ministry would pursue the removal of the work permit fees with the authorities.

The Chair of the Council of Ministers, Hon Shem Bageine reiterated the need for all Partner States to fully implement the Common Market.  He lauded the Republics of Kenya and Rwanda for the bold move in abolishing permit fees.   Hon Bageine remarked that Republic of Uganda recently made the decision to abolish work permit fees for citizens in Uganda.   He noted that at the moment, it was necessary to abolish the work permit fees but eventually, once we federate, (Political Federation), then the work permits would be totally removed.   The Council of Ministers, Hon Bageine remarked, shall deliberate into the matter and make the necessary follow-up with regards to ensuring the full implementation of the Common Market Protocol.

EAC Stockbrokers Adopt Compulsory Certification Training

Both the East African Securities Regulatory Authorities (EASRA) and the East African Stock Exchanges Association (EASEA) have agreed that professional Capital Market employees will be required to take a certification course, whose curriculum the two bodies have agreed on. The certification aims to standardise qualification requirements for key market activities in the EAC such as trading, asset management, and investment banking. Since certification is being implemented at a regional level, it should be standardised and ideally recognised globally, which allows a graduate to work anywhere. In this regard, the EAC Common Market Protocol under Part D on Free Movement of Persons and Labour, provides provisions on Harmonisation and Mutual Recognition of Academic and Professional Qualifications (Article 11) and hence an advantage of the certification training is that certified staff in the EAC can work in other EAC stock exchanges.

This is also important because the EAC Common Market Protocol (CMP) provides for the Free Movement of Capital in Part G Articles 24-28. Certification is therefore also important with regard to regional integration and capital account liberalisation. The CMP provisions provide for the elimination of Restrictions on the Free Movement of Of Capital which are reflected in Annex VI (Schedule on the Removal of Restrictions on the Free Movement of Capital). The Schedule contains commitments in equity and portfolio investments, bank transactions, repatriation of proceeds from sale of assets and other transfers and payments relating to investment flows.

Formal certification procedures will also help the market players to have a clear understanding of market regulations and the requisite qualifications to perform their responsibilities. It is acknowledged that a lack of properly qualified staff and fraudulent trading of customers’ shares was blamed for the collapse of Kenyan stock brokerage firms between 2007 and 2010.

Scheduled courses under the programme include fundamental securities, market participants training, officers and directors course. The certification course was agreed upon during an EASRA consultative meeting that was held in Bujumbura, Burundi, in March however, rules on frequency of training, examinations and those to be exempted based on other courses taken are yet to be finalised.

There are, however, other programmes in the region that have been running on a voluntary basis and without certification such as those run by the Securities Industry Training Institute, which is based in Kampala.

The most outstanding achievement in terms of EAC capital markets integration so far has been the cross listing initiative that has made it possible for seven, five and three companies to cross list from the NSE to the USE, DSE and RSE respectively. A road map for the integration of the EAC capital markets has also been developed to guide the integration process in the EAC capital markets industry in light of the EAC Common Market Protocol and in preparation for the proposed East African Monetary Union.

Related information can be found on Business Day

Rwanda-US Bilateral Investment Treaty and the EAC Common Market Protocol

The Rwanda-US Bilateral Investment Treaty (BIT) was signed in Kigali in 2008 and the United States Senate unanimously approved the treaty on September 26, 2011. Meanwhile, the EAC-US Trade and Investment Framework Agreement (TIFA) was signed in July 2008 between USTR and the EAC.  In addition, the EAC Common Market Protocol (CMP) to which Rwanda is a member came into force into force on 1st July 2010. 


The Rwanda-US BIT is the first to be concluded between the US and a sub-Saharan African country since 1998 (when a BIT was signed with Mozambique). Although there are over 40 BITs in force to which the US is a Party, this Treaty with Rwanda is only the second concluded on the basis of the ambitious 2004 U.S. model BIT. Other African countries with BITs currently in force with the US include: DRC, The Congo, Morocco, Senegal, Egypt, Cameroon and Tunisia. The BIT with Rwanda will remain in force for ten years after its entry into force and will continue in force unless terminated by a Party by providing one year’s advance notice to the other Party. 

The BIT provides investors with legal protections which include non-discriminatory treatment of investors and investments and the right to freely transfer investment-related funds.  Unlike the EAC CMP however, the BIT also provides for prompt, adequate, and effective compensation in the event of an expropriation; freedom from specified performance requirements, such as domestic content or technology transfer requirements; and provisions to ensure transparency in governance. The BIT also gives investors in all sectors the right to bring investment disputes to neutral international arbitration panels.  

In comparison, EAC CMP Article 29 on the Protection of Cross-Border Investments, undertakes to protect investors and their returns in a non-discriminatory manner however the modalities for doing so are not yet finalised. Article 29:3 proposes that within 2 years after the coming into force of the CMP, Partner States will take measures to ensure necessary protections in the Community.


In contrast, the EAC-US TIFA establishes a EAC-US Council On Trade and Investment to monitor trade, identify and remove impediments to trade and investment.

The BIT contains provisions on National Treatment and Most-Favoured-Nation Treatment whereby it protects investors of a Party and their covered investments from discriminatory measures by the other Party during the full life-cycle of an investment, including the establishment phase. Each Party commits to provide to investors of the other Party and to their covered investments treatment no less favorable than that which it provides, in like circumstances, to its own investors (National Treatment) or to investors from any third country and their investments (MFN Treatment). In this instance, Rwanda has committed in the BIT to give US investors similar treatment it is providing to EAC Partner States, in like circumstances, under the Common Market Protocol. 

In contrast however, the EAC CMP Article 13 on the Right of Establishment, EAC States have committed to the principle of MFN but not the principle of National Treatment. However in Article 16 on the Free Movement of Services, the principles of MFN and National Treatment are addressed. Hence National Treatment is applicable in the EAC CMP for investment in the services sectors but seemingly not investment in industrial sectors e.g. agriculture, manufacturing, hunting, and forestry, mining and quarrying, energy production/transmission and distribution. 

On Transfers, the BIT has free transfer obligations which require that a Party permit capital and other transfers related to an investment be made freely both into and out of its territory. Additionally, a Party must permit transfers to be made in a ‘‘freely usable currency,’’ as designated by the IMF, at the market rate prevailing at the time of the transfer. Parties may however prevent transfers through the equitable and non-discriminatory application of certain laws. The EAC CMP on the other hand has provisions on the Free Movement of Capital Articles 24-28 which corresponds to the CMP Schedule on the Removal of Restrictions on Free Movement of Capital (Annex VI).

On Performance Requirements, the BIT prohibits the imposition by the Parties of several requirements relating to the performance of investments, including a requirement to achieve a given level of exports or domestic content or requirements linking the value of imports or domestic sales by an investment to the level of its export or foreign exchange earnings. The Article also prohibits Parties from offering advantages, such as tax holidays, in exchange for a more limited set of performance requirements. In the WTO context, the Agreement on Trade Related Investment Measures (TRIMS) takes a similar prohibitive approach however only in the context of trade in goods. 

So as not to place U.S. and Rwandan investors at a competitive disadvantage, the disciplines on performance requirements also apply to all investments in the territory (non-discrimination) of a Party, including those owned or controlled by host-country investors (domestic investors) and those owned by non-Parties. The EAC CMP does not impose performance requirements however it would seem that by virtue of the BIT, Rwanda cannot impose such measures even in the services sectors vis a vie any third Party. In practice, Rwanda may want as a policy to impose some performance requirements e.g. the technology transfer in targeted sectors, vis a vie more developed countries and justifiably so, in order to meet key development objectives.  This provision is therefore not in the interest of Rwanda given her level of development. It should be mentioned that the development of China is linked to performance requirements (local content) the Chinese government put in place for foreign investors. See related piece here. Fortunately however Rwanda has exempted performance requirements in her Annex II on non conforming measures (discussed below).

On Senior Management and Boards of Directors, the BIT prohibits measures requiring that persons of any particular nationality be appointed to senior management positions in a covered investment. A Party may require that a majority of the board of directors of a covered investment be of a particular nationality, or that a director be a resident of the host country, so long as such requirements do not materially impair an investor’s control over its investment. This provision would prevent Rwanda from implementing broad-based local empowerment policy to foster development of its own nationals into senior management positions and fortunately Rwanda exempted this in her list of non conforming measures (discussed below). Meanwhile in this context, the EAC CMP does not discipline the composition of Boards of Directors and the nationality of Senior Management by virtue of the principles of free movement of workers and right of establishment. The CMP only requires that juridical persons be established in accordance with the national laws of a Partner State.  

In the Publication of Laws and Decisions the provisions in the BIT seek to promote transparency in the legal framework governing investment. It requires the Parties to ensure that laws, regulations, procedures, administrative rulings of general application, and adjudicatory decisions that relate to any matter covered by the Treaty are promptly published or otherwise made publicly available. The EAC CMP contains a mildly similar provision in the Free Movement of Services chapter Article 19 whereby notification is required but not publication and the notification only applies after the introduction of the measure. 

In the BIT, each Party is obligated, to the extent possible, to publish in advance any laws, regulations, procedures, or administrative rulings of general application with respect to matters covered by the Treaty that the Party proposes to adopt, and to provide interested persons and the other Party a reasonable opportunity to comment on the proposed measures. In the EAC CMP, provisions on advance publication and comments are not addressed.  In practice this means that the US would have the opportunity to view, comment  and make recommendations in advance, on Rwanda's proposed laws and regulations however EAC Partner States would not.

On the rules of origin (Denial of Benefits) the BIT establishes that a Party may deny the benefits of the Treaty to an investor of the other Party if persons of a third country own or control the enterprise and the denying Party either (1) has no diplomatic relations with the third country; or (2) adopts or maintains measures, such as foreign policy sanctions, with respect to the third country or to a person of the third country that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of the Treaty were accorded to the enterprise or to its investments. This provision impacts on third Parties that are on sanctioned lists of either Party.

The provisions on Denial of Benefits also establishes that a Party may deny the benefits of the Treaty to an investor of the other Party if the enterprise has no substantial business activities in the territory of the other Party and persons of a third country, or of the denying Party, own or control the enterprise. 

The Agreement also lists Non-Conforming Measures (equivalent to negative lists) and in these Annexes, each Party lists existing measures to which any or all of four key obligations of the Treaty do not apply, and sectors or activities in which each Party reserves the right to adopt future measures to which any or all of those obligations will not apply. Annex III of the BIT is reserved for financial services NCMs. 

Annex I:

Rwanda: Exemption from MFN and National treatment in all sectors to allow for differential minimum capital requirements for investment registration. Here Rwanda identifies "local investors" to include Rwandese and COMESA investors who are entitled to a lower capital threshold (USD 100,000) than "foreign investors" (USD 250,000). While EAC is not mentioned in the BIT given the common market was not yet in place, one can argue that the EAC falls in the "local investor" category since the common market is technically working towards a single market.

United States: Atomic Energy; Mining; Air Transportation; Customs Brokers; Radiocommunications Licenses; and restrictions on securities registration and OPIC insurance eligibility. 

Annex II 

Rwanda: Preferences for socially or economically disadvantaged communities and differential treatment pursuant to existing international treaties. Here Rwanda reserves the right to adopt  measures in all sectors that are not consistent with the provisions on National Treatment, Performance Requirements and Senior Management and Boards of Directors in order to accord rights or preferences to socially or economically disadvantaged communities. 


Rwanda also reserves the right in all sectors to deviate from MFN provisions in order to adopt or maintain any measure that accord differential treatment to countries under any bilateral or multilateral international agreement in force or signed before the BIT. For agreements signed or in force after the date of entry into force of BIT, Rwanda reserved the right to deviate from MFN treatment with regard to: (a) aviation; (b) fisheries; and (c) telecommunications.  

United States: Radio/Satellite Communications, Cable Television, Social Services, Minority Affairs, measures relating to U.S.-flagged maritime vessels, and differential treatment pursuant to existing international treaties. 

Annex III 

Rwanda: On insurance, Rwanda states that the entry shall cease to have effect on the earlier of: (i) the date that Rwanda enacts an insurance law that eliminates the non-conforming aspects of the measure as set forth above;' or (ii) September 1, 2009.

United States: Financial Services/Banking, Insurance, and general Financial Services. 

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Overall the US has more detailed sector specific Non Conforming Measures than Rwanda especially in the services sectors (transport (maritime, aviation), communication (audio visual, telecom), financial services (banking, insurance and other financial services). However Rwanda also made useful exemptions but at a sectoral level made general carve-outs in insurance, aviation, telecommunications and fisheries.  

The key take away from this comparison is the Rwanda-US BIT is highly asymmetrical and is more ambitious than the EAC CMP. Theoretically it can prejudice the regional processes given its objectives of MFN, National Treatment, Dispute Settlement (including Expropriation, Compensation), Intrusion in Law Making Processes (governance) and broad-based elimination of: performance requirements, empowerment measures including elimination of legitimate development oriented requirements for foreign investment and repatriation. 


Whether such comprehensive coverage is desirable for African countries is an important question, the answer to which is highly context- and situation-specific, and needs to be assessed against the overall objective of ensuring that investment treaties promote investment that actually exists or has the compelling potential to exist and that fosters sustainable development. The propensities to invest and hence the need for protection through an ambitious BIT is an important consideration before signing BITs as such needs may change over time. In closing its important to note that several countries receiving high FDI receipts in Africa e.g. Angola, Sudan have very few BITs and in a previous post we found that strict FDI provisions in BITs do not increase investment.

National Treatment and Kenya's Land Reform Following the New Constitution

Kenya has over time proved to be the preferred investment point in the East African region due to its strategic location and free market economy which places no significant restriction on the movement of foreign currency in and out of the market.  However there is one important change to the investment environment since the promulgation of the new Constitution of Kenya (the 'Constitution') found in Chapter Five Part 1 on Land and Environment.

The Constitution was brought into law on August 27 2010 and inter alia sets the reform agenda for better governance. In general the new Constitution will lead to the creation of new institutions that will promote good governance and in turn boost investor confidence. 

However, in one aspect, the Constitution contains articles that now limit the period that a foreigner may hold land to 99 years (Article 65 (1). This includes any company which has any element of foreign shareholding.  The Constitution also provides that any interest in land that is currently held by foreigners which is in excess of 99 years will have the term reduced to 99 years and freehold land will be converted to 99 years leasehold interest (Article 65(2)). Investors have indicated to Government that limiting the interest period to 99 years will not be conducive to foreign investors looking to invest in Kenya. There is also no provision for compensation to foreigners in the Constitution. The Constitution gives Parliament a time frame of eighteen months for the enactment of legislation relating to land and it will be interesting to see the impact the legislation will have on the business environment.

In the WTO Trade in Services context, Kenya made horizontal commitments in the Uruguay Round on market access in Mode 3 requiring that for commercial presence investors should establish their business locally.  There are however no horizontal limitations on national treatment to which limitations on foreign ownership of land would be reflected. In the sectors where Kenya has undertaken specific commitments, Telecommunications services, Financial services (including banking and insurance), Tourism & Travel related services and Transport services (air and road), mode 3 national treatment commitments are in some cases left unbound. However in the hotels and restaurants category, arguably a sub sector to which land is a determinant, Kenya has completely liberalised mode 3 both in the WTO GATs context and the EAC Common Market Services Schedule (Annex V).

Additionally, in the EAC Common Market Protocol, Article 13 on the Right of Establishment and Article 14 on the Right of Residence are relevant to the land question.  To the extent that they relate to access to and use of land premises, these provisions are subject to Article 15 which provides that land issues shall be governed by the national policies and laws of Partner States. Hence even in the common market, one could say that national treatment has not been extended to the land issue especially as it relates to establishment (investment).  

The EU Single Market Services Directive

The Directive on Services in the Internal Market (the Services Directive 2006/123/EC) was adopted in December 2006. The Directive liberalises the internal EC services market in that it requires Member States to abolish discriminatory requirements, such as nationality or residence requirements, and particularly restrictive requirements, such as “economic needs” tests (requiring businesses to prove to the authorities that there is a demand for their services). It also requires the review of other burdensome requirements which may not always be justified (such as territorial restrictions or minimum number of employees).

The EU member States were provided a three-year transitional period to transpose the Directive into national legislation. However, several member States missed the end-2009 deadline, and work to implement the Directive continued throughout 2010. The Directive requires the Member States to simplify procedures and formalities that service providers need to comply with. In particular, it requires Member States to remove unjustified and disproportionate burdens and to substantially facilitate: the establishment of a business, i.e. cases in which a natural or legal person wants to set up a permanent establishment in a Member State, and the cross-border provision of services, i.e. cases in which a business wants to supply services across borders in another Member State, without setting up an establishment there. 

During 2010, the Commission was monitoring the implementation by the member States, of both the new legal frameworks adopted in order to implement the Services Directive as well as their efforts to establish operational "Points of Single Contact" (PSCs), notably the online portals providing businesses with information about the requirements and procedures to be complied with, and the "Internal Market Information Systems" facilitating administrative cooperation between the authorities of the member States. The PSCs are certainly the most visible benefit of the Services Directive for businesses. They are meant to become fully fledged e-government portals allowing future entrepreneurs and existing businesses to easily obtain online all relevant information relating to their activities (applicable regulations, procedures to be completed, deadlines, etc.) with the ability to apply online and across borders. 

Although the vast majority of the member States have chosen to implement the general principles and obligations of the Directive through a single act, implementation of the general principles has been carried out through several acts in France and Germany. In addition, all member States have had to amend or abrogate existing legislation to ensure conformity with the provisions of the Directive.

The Services Directive does not harmonize national legislation applicable to the services sector, but obliges member States to screen their authorization schemes to ensure that they are maintained only if non-discriminatory, justified by an overriding reason relating to public interest, and proportionate.

The Services Directive applies to the provision of a wide range of services – to private individuals and businesses – barring a few specific exceptions. For example, it covers: 

distributive trades (including retail and wholesale of goods and services) 

the activities of most regulated professions (such as legal and tax advisers, architects, engineers, accountants, surveyors) 

construction services and crafts 

business-related services (such as office maintenance, management consultancy, event organisation, debt recovery, advertising and recruitment services) 

tourism services (e.g. travel agents) 

leisure services (e.g. sports centres and amusement parks) 

installation and maintenance of equipment 

information society services (e.g. publishing – print and web, news agencies, computer programming) 

accommodation and food services (hotels, restaurants and caterers) 

training and education services 

rentals and leasing services (including car rental) 

real estate services 

household support services (e.g. cleaning, gardening and private nannies). 

The Services Directive does not apply to the following services, which are explicitly excluded:

financial services 

electronic communications services with respect to matters covered by other community instruments 

transport services falling into Title V of the EC Treaty 

healthcare services provided by health professionals to patients to assess, maintain or restore their state of health where those activities are reserved to a regulated health profession 

temporary work agencies' services 

private security services 

audiovisual services 

gambling 

certain social services provided by the State, by providers mandated by the State or by charities recognised as such by the State 

services provided by notaries and bailiffs (appointed by an official act of government). 

The Commission has not drawn up concrete plans to cover the other excluded services. Services activities are in any event always subject to the EC Treaty provisions, notably the fundamental freedoms of establishment (Article 43) and free movement of services (Article 49). The Services Directive applies only to EU (EEA) citizens and legal entities established in the EU (EEA), and does not oblige member States to consider changes applicable to non-EU services suppliers. 

BRICS- SA's Role

Interesting analysis below from the business day. Should note that SA's BRICS membership also adds another dimension to the tripartite  FTA consisting of COMESA-EAC-SADC Member States.

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There is wide consensus that SA’s place in the emerging-market bloc that groups Brazil, Russia, India and China together, is only justified by SA’s strategic importance on the continent.

That means the country needs to tread a careful path between touting its own interests and facilitating links to the rest of Africa.

"It would be in SA’s interest to see this as a bargaining opportunity for the continent rather than just being expedient," said Standard Bank ’s group chief economist, Goolam Ballim. "Otherwise this could be harmful in the longer term for inter- African relationships."

It is a delicate task as SA does not have a mandate at this point to speak for any other African country. Jim O’Neill, the banker from Goldman Sachs who invented the acronym for the first four Bric countries, has said that Nigeria is in a better position to join the grouping.

SA’s economy is only a quarter the size of Russia’s, the next-smallest Brics member, and its share of world trade has been stagnant at 0,5% over the past decade. Its pace of growth also lags well behind the bloc’s other members.

But SA has a lot to offer the group, which analysts say could evolve into a political force rivalling the Group of Seven developed nations, campaigning for the interests of emerging economies. SA has one of the strongest financial sectors in the world, and receives about 95% of Africa’s portfolio inflows — foreign buying of local shares and bonds.

It could provide capital for companies looking to expand into the continent and is rated as the easiest place to open a business among all the other BRICS countries.

That would make it the logical choice for firms to establish their headquarters in SA.

The country is already the services hub for the continent and has significant corporate clout in the global arena.

Where it falls short is on transport infrastructure, both within the country and linked to its African neighbours.

Nonetheless, SA’s place on the continent is seen as key to its debut in the Brics club this week at the meeting at a Chinese resort.

"We are not individually important enough but if we can fill the role of an entry point to Africa, it will be an enormous opportunity," says Absa Capital economist Jeff Gable.

Sub-Saharan Africa has become the second-fastest growing region in the world after Asia and has been more resilient to the global financial crisis then Asia, Latin America and Eastern Europe. It offers an untapped market of hundreds of millions of people.

Standard Chartered’s regional research head for Africa, Razia Khan, thinks that the summit is unlikely to come up with concrete measures that will immediately affect the Brics economies.

But some analysts are expecting preferential trade agreements and developmental finance deals, given the participation of state-owned financial institutions.

Iraj Abedian, chief economist for Pan African Capital Holdings, hopes that the Brics summit will establish a "credible institution" to underpin its political clout. If that does not happen, it will remain a political multilateral rather than an economic leadership forum, he says.

For another piece on BRICS see here.

Kenya: Safaricom’s M-Pesa goes global with Western Union

Safaricom, Kenya’s biggest mobile operator, has announced a deal with Western Union, the international money transfer company, to enable its M-Pesa mobile money service subscribers to receive direct cash transfers from Western Union agents worldwide.

Consumers can now send money directly to the mobile ‘wallets’ of Safaricom M-PESA subscribers in Kenya from 45 countries and territories,” explains Karen Jordaan, East and Southern Africa Director at Western Union.

The service taps into Africa’s huge remittances flows, which the World Bank estimates to have totalled $40bn in 2010. 

See full piece here and related posts here.

EAC Financial Services and Double Taxation Avoidance Treaty

The 9 year EAC Financial Sector Development & Regionalization Project, funded by the World Bank is a welcome development.   A strong regional financial sector is needed to underpin an effective common market and build a single financial services market for the region.  The development of a regional financial services sector, will also benefit the establishment of a monetary union and single currency.  In addition, the EAC region stands to gain by trading on a regional stock exchange, i.e a single East African Stock Exchange and furthermore, the harmonization of the financial services sector will play a key role in unlocking the removal of barriers for the free movement of capital across the EAC region- as provided for by the Common Market Protocol. 

In related news, the EAC region has apparently not implemented the Treaty on Avoidance of Double Taxation. The Double Taxation Treaty would allow income generated in any of the five member states to be taxed only once but lack of implementation has given national revenue bodies the legitimacy to maintain the status quo with revenue authorities making double claims for revenue earned in each individual country.

Agency Banking- Reaching the Unbanked

The agent bank offers the same services as a real bank —cash deposits and withdrawal, disbursement and repayment of loans, payment of salaries, pension, transfer of funds, and issuance of mini-bank statements, among others.

The agent also facilitates new account opening, credit and debit card application, cheque book request and collection and is linked to Equity Bank’s systems electronically, eliminating the need for the commercial bank to have a branch in Ruaka to do business.

This is being replicated across the country, especially in rural areas, with Equity Bank saying that already 1,000 banking agents have started operating.

The Central Bank has licensed four banks, including Equity, to carry out agent banking business and approved 8,809 specific agents since last year.

Should the remaining over 7,000 agents roll out their services as expected early in the year, then this would deeply boost penetration of banking services in the country even as banks eliminate costs on physical branch expansion in areas with low volumes.

Agents may be able to play a role in a broad range of services, including account opening, cash-in and cash-out services (including cash disbursement of bank-approved loans and repayment collection), payment and transfer services (including international remittances and person-to-person domestic transfers), and perhaps even credit underwriting.

A major obstacle to financial inclusion is cost—not only the cost incurred by banks in servicing low value accounts and extending banking infrastructure to un-derserved, low-income areas, but also the cost incurred by poor customers (in terms of time and expense) in reaching bank branches. Achieving financial inclusion therefore requires innovative business models that dramatically reduce costs for everyone and thus pave the way to profitable extension of financial services to the world’s poor.