An Overview of Kenya’s Trade Remedies Act

Introduction

On 1 January 1995, ?the Marrakesh Agreement establishing the World Trade Organization (WTO) took effect. Kenya was among the 123 pioneer nations that signed the Agreement on 14 April 1994.The WTO Agreement developed out of the General Agreement on Tariffs and Trade (GATT), supplemented by other agreements on other trade topics (Covered Agreements). Among the Covered Agreements are those dealing that discipline of trade remedies ?that is? the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), the ?Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) and the Agreement on Safeguards.

?A common thread among the above agreements ?is that WTO members are required to establish a competent investigations authority domestically to be able to investigate and apply any of these trade remedy measures. Hence in compliance with this requirement, and upon realization that trade remedies may be a useful policy tool to shield her domestic industries from unfair trade practices, Kenya enacted the Kenya Trade Remedies Act in 2017. Below are some of the important provisions of the Act.

Kenya Trade Remedies Act

The Kenya Trade Remedies Act was enacted on the 21st?July 2017 and came into force on 16th?August 2017. The purpose of the law as stated in preamble is to provide for the establishment of the Kenya Trade Remedies Agency (KETRA), to investigate and impose anti-dumping, countervailing and trade safeguard measures.

Section 3 of the Act establishes the Kenya Trade Remedies Agency ?whose key? ?functions include investigating ?and evaluate allegations of dumping and subsidization of imported products in Kenya ?as well as investigating ?and evaluating requests for application of safeguard measures on any product imported in Kenya.

Anti-Dumping, Countervailing and Safeguard Measures in Kenya

Section 23 of ?the Act provides ?for the power to impose anti-dumping, countervailing and safeguard measures and powers to investigate, evaluate and adjudicate procedures. A countervailing measure ?is ?a special duty levied for ?purpose of offsetting any subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise. The Cabinet Secretary is in a case of subsidized goods imported in Kenya, mandated to issue a countervailing duty in an amount equal to or less than the amount of subsidy on the imported goods.

Dumping? is ?the introduction of a product into the commerce of the country at an export price that is less than its normal value. The dumping margin means the difference between the export price and the normal value as it results from the comparison of the two. Under the ?Kenya’s Trade Remedie Act, the ?Cabinet Secretary is expected to impose, in the case of goods dumped in Kenya, an anti-dumping duty in an amount equal to or less than the margin of dumping of the imported goods.

Safeguard measures are ?emergency actions with respect to increased imports of particular products, where such imports have caused or threaten to cause serious injury to the importing Member's domestic industry. The concerned industry in this case is a domestic industry that suffers serious injury as a result of a sudden and unforeseen surge of imports into the country arising from international commitments.

Investigations and Enforcement under the Kenya's Trade Remedies law

The Kenyan?Act allows any person to make an application for the conduct of the investigation or evaluations of alleged dumping or subsidized exports in Kenya or the conduct of investigation or evaluation of imports that have caused or threaten to cause serious injury to an industry in Kenya. Investigation officers are to be ?appointment by the KETRA Board to perform investigation duties and given power of entry and to search under warrants any premises that are within the jurisdiction of that court issuing the warrant.

Upon? finishing of the investigations , the KETRA has the power to recommend the application of the Anti- Dumping duty when a case of dumping has been proved?? or countervailing when a case of subsidies has been established. The power? to levy these? duties is? bestowed on the Kenya Revenue Authority(KRA) through its customs procedures.