In February 2020, President Trump and Kenyan president Uhuru Kenyatta announced their intent to negotiate a bilateral free trade agreement, and in March, Trump formally notified Congress of its intention to move forward with negotiations.
In April CAGJ submitted the following comments to the US Trade Representative expressing our concerns with the proposed agreement, including the timing of negotiations, as we are in the midst of global pandemic. Many points echo those made by Citizens Trade Campaign. Please also see comments submitted by Institute for Agriculture and Trade Policy and National Family Farm Coalition, and watch Public Citizen’s Global Trade Watch video on what the US-Kenya FTA should look like, with Lori Wallach. We are collaborating with our East African partners to share information and analysis.
Dear Ambassador Lighthizer:
Community Alliance for Global Justice would like to comment on the Negotiating Objectives for the proposed U.S.-Kenya Trade Agreement.
Community Alliance for Global Justice (CAGJ) educates and mobilizes with individuals and organizations to strengthen local economies everywhere. CAGJ is grassroots, community-based and committed to anti-oppressive organizing as we build solidarity across diverse movements. CAGJ seeks to transform unjust trade and agricultural policies and practices imposed by corporations, governments and other institutions while creating and supporting alternatives that embody social justice, sustainability, diversity and grassroots democracy.
In addition to supporting Washington state food organizations focused on strengthening our local food systems, CAGJ educates about the African food sovereignty movement, and follows their work closely as an ally member of Alliance for Food Sovereignty in Africa.
This seems like a particularly inopportune time to negotiate a trade agreement, when everyone’s attention is, justifiably, focused on the coronavirus pandemic. Trade agreements matter in helping to determine the rules that affect our economies and our lives; we need to have public debates on the issues involved. It would seem to us wise to postpone any negotiations.
The global pandemic has highlighted an issue of crucial concern to CAGJ and its members. It has become very clear that what is most important (in conjunction with access to affordable health care) is the resilience of our food systems to address not only national level food security, but also community food security. Even in countries such as the U.S., which has surplus production to “feed” the world, the current crisis is showing the vulnerabilities of the systems in place. Kenya, in addition, is facing difficulties caused by drought and climate change, and crop losses due to locust swarms.
Pre-existing inequities are exacerbated in times of crisis. Food insecurity is a real issue in every country. As we address the immediate crisis at hand, we must ensure that the actions we take today contribute towards building resilient communities capable of handling crises. Trade agreements must be focused on helping countries develop resilience, support local economies and provide prosperity for small producers and farmworkers.
As far as the particulars of a U.S.-Kenya Trade Agreement are concerned, CAGJ has several concerns we would like to highlight:
- Open transparent negotiations and public debate are necessary. The lack of transparency surrounding earlier trade negotiations conducted by this and previous administrations must not be allowed to continue in any U.S.-Kenya Trade Agreement talks. Creating an open, participatory process from the start is the only way that the public will have confidence that these negotiations are not rigged in favor of large corporate interests.
- Joint action against child labor and other ongoing labor rights abuses. A U.S.- Kenya Trade Agreement must include strong and binding labor standards explicitly based on the International Labor Organization (ILO) Conventions and their accompanying jurisprudence, as well as resources for ongoing monitoring and robust mechanisms for swift and certain enforcement. It must likewise remove barriers that could prevent labor enforcement action from being taken, such as those requiring that labor violations must be proven to be “in a manner affecting trade or investment” or that they be “sustained” or “reoccurring” before enforcement actions can be taken. Provisions must be added to safeguard against any backsliding of existing labor standards, wages and working conditions by barring movement of jobs to evade labor laws and by establishing formal protections for joint labor activities, including collective bargaining, by workers in both countries. Special provisions must be added to address the ongoing issue of child labor within specific Kenyan industries, including a requirement for Kenya to ratify, implement and enforce the UN Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. The protection of labor rights and other human rights must be prioritized over commercial interests in all elements of U.S. trade policy.
- Joint action against climate change. A U.S.-Kenya Trade Agreement must require parties to adopt, maintain and implement conventions and policies that fulfill the Paris climate agreement and other climate measures, and must include mechanisms that ensure their swift and certain enforcement. Any pact must explicitly recognize the primacy of domestic and international climate policies over commercial rights.
- Access to affordable medicine. Maintaining access to affordable, generic medications is critical to reducing health care costs in the United States and to saving lives throughout the world. A U.S.-Kenya Trade Agreement would be an inappropriate vehicle for extending the length of drug patents and must not provide monopoly rights to pharmaceutical companies in any other ways, including via patent ever-greening, data or market exclusivity, trade secrets or other means.
- Protection of food sovereignty. A U.S.-Kenya Trade Agreement must respect governments’ ability to implement programs that ensure farmers and other food workers receive fair compensation, and that consumers have access to safe and affordable foods and the right to know where and under what conditions their food is produced. Likewise, nations must be able to protect themselves from dumping, land grabs and other unfair trade practices that force farmers off their land. Kenya has restrictions on the planting and import of some genetically modified grains. These must not be overridden by trade agreements. Community-based, traditional land ownership patterns must also be protected. Farmers’ rights to save and share seeds must be protected. Safety and health data on pesticides must be available. A trade agreement should not interfere with efforts to promote local food security and resilience, or climate-protective agroecological agriculture.
- Improved consumer and environmental standards. A U.S.-Kenya Trade Agreement must set floors, rather than ceilings, when it comes to environmental, food and product safety, privacy and consumer right-to-know measures, and must in no way prohibit, limit or penalize communities for adopting policies based on the precautionary principle. There should be no chapter on “regulatory coherence,” nor any “sectoral annexes” requiring health, safety or environmental deregulation or imposing new corporate rights for any sector. Provisions that undermine the regulation of digital technology and the protection of digital rights must likewise be excluded. A broad “carve-out” that exempts non-discriminatory domestic policies from all of the deal’s rules should be included to provide a deterrent and early defense against future challenges.
- An end to investor-state dispute settlement. A U.S.-Kenya Trade Agreement must not elevate corporations to the level of governments when it comes to enforcement of the pact. A pact must not include Investor-State Dispute Settlement (ISDS) provisions that allow panels of private sector lawyers to order unlimited taxpayer compensation to firms that claim that a country’s policies undermine their expected future profits. Nor should any “ISDS-lite” International Court System or similar proposal be adopted. Any international investment rules must also narrowly define terms including “investment,” “expropriation” and “minimum standard of treatment” in order to safeguard the ability of governments to regulate in the public interest.
- Respect for local procurement policies. A U.S.-Kenya Trade Agreement must not impede governments from spending taxpayer funds in ways that prioritize local development, environmental and social goals. The procurement provisions of an agreement must maintain existing “Buy American” preferences and similar preferences by Kenyan authorities, as well as space for existing and potential future prevailing wage requirements, green preferences, sweat-free preferences, human rights preferences and policies designed to address long-standing inequalities.
Thank you for your consideration.