Month: May 2026

The landscape of global trade is undergoing profound transformation, and Africa is steadily positioning itself as a decisive player in shaping the future of economic integration. Central to this shift is the African Continental Free Trade Area (AfCFTA), an unprecedented project to forge a unified market of 55 member states. By as piring to dismantle tariff and non-tariff barriers, harmonise customs procedures, and establish a rules-based trading system, the AfCFTA promises to catalyse industrialisation, boost intra-African trade, and build critical resilience against global economic shocks. However, this pursuit of pan-African integration does not begin on a blank slate. It is layered upon a complex mosaic of pre-existing regional blocs, among which the East African Community (EAC) stands as a particularly advanced and relevant example, boasting a functional Customs Union and a Common Market Protocol.

The parallel existence of these two frameworks, the continental ambition of the AfCFTA and the deeply integrated regional regime of the EAC, creates a critical juncture in trade governance. While founded on similar aspirations, they are not always perfectly congruent. For nations like Kenya and Tanzania, which are members of both agreements, this duality generates a complex web of overlap ping and sometimes contradictory obligations. This article examines the specific tensions that arise from this interplay, analysing the legal and practical dissonance between the two systems and the challenges these conflicts pose.

The EAC Customs Union versus AfCFTA Tariff Liberalisation

The EAC Customs Union Protocol of 2005 established the cornerstone of regional trade by creating a regime of duty-free movement for originating goods among partner states and instituting a Common External Tariff (CET) applied uniformly to imports from outside the bloc. This is not a voluntary guideline but a firm legal obligation; as Article 2(4)(c) of the Protocol expressly states, within member states, “a common external tariff in respect of all goods imported into the Partner States from foreign countries shall be established and maintained.” This commitment is further reinforced by Article 12, which obliges partner states to implement this common tariff on goods from third parties. The current CET, revised in 2022, operationalises this through a structured system of four tariff bands: 0%, 10%, 25%, and 35% on sensitive items.

The AfCFTA Agreement, in contrast, creates a fundamentally different framework. Under Article 2 of the Protocol on Trade in Goods, it mandates the “progressive elimination of tariffs and non-tariff barriers” among all state parties, with a commitment to progressively liberalise at least 90% of tariff lines. The contradiction is that the EAC requires its members to apply a uniform CET to all non-EAC imports, whereas the AfCFTA promotes the elimination of such tariffs between African nations. This creates an impossible compliance dilemma for a member state. If Kenya agrees under an AfCFTA arrangement to reduce tariffs on certain textile imports from West Africa, it simultaneously violates the EAC mandate. In practice, this leaves traders in a state of profound uncertainty.

Rules of Origin: Complementarity in Principle, Contradiction in Practice

Rules of Origin are the critical laws, regulations, and administrative procedures that determine a product’s country of origin, thereby governing its eligibility for preferential trade terms. The East African Rules of Origin (EARoO), which are detailed in Annex III of the Protocol, function as the gatekeeper for the customs union, with their strict nature designed to prevent trade deflection. This is clearly articulated in Rule 4, which provides that “Goods shall be accepted as originating in a Partner State where the goods are- (a) wholly produced in the Partner State as provided for in Rule 5; or (b) produced in the Partner State incorporating materials which have not been wholly obtained there, provided that such materials have undergone sufficient working or processing in the Partner State as provided for in Rule 6.”

In contrast, the AfCFTA Annex ii on Rules of Origin permits full continental cumulation. This allows inputs sourced from any state party to be combined with value added in another member state to qualify the final good as “African”. This creates a direct contradiction for EAC members. For instance, cotton imported into Tanzania from Egypt and spun into fabric in Kenya qualifies under AfCFTA. However, under the stricter EAC RoO, that same product might fail to meet the originating criteria. This divergence may force businesses into a significant compliance dilemma.

Non-Tariff Barriers (NTB): Parallel Mechanisms, Uneven Enforcement

While both frameworks explicitly recognise Non-Tariff Barriers (NTBs) as a critical impediment to trade and have established sophisticated mechanisms to address them, a closer analysis reveals a system plagued by institutional duplication and a critical deficit in enforcement, ultimately rendering both frameworks susceptible to political intransigence. The EAC’s approach, as codified in Article 13 of its Customs Union Protocol, obliges partner states to “remove, with immediate effect, all the existing non-tariff barriers to the importation into their respective territories of goods originating in the other Partner States and, thereafter, not to impose any new non-tariff barriers”.

Theoretical alignment, however, gives way to practical contradiction. Rather than creating a cohesive, multi-level governance structure, the coexistence of these two frameworks fosters institutional redundancy. This parallelism does not enhance efficacy but instead creates a risk of forum shopping, where member states can strategically choose, or ignore, the mechanism that best suits their political or economic interests at a given time, thereby undermining the authority of both.

The persistent trade disputes between Kenya and Tanzania demonstrate that the core challenge is not a lack of legal instruments but a profound absence of political will to comply. The existence of a second mechanism under the AfCFTA does not resolve this enforcement gap; it merely provides an alternate venue for the same disputes to languish.

Customs and Trade Facilitation: The problem of Double Commitments

The EAC has pioneered innovations such as the Single Customs Territory (SCT), the use of electronic cargo tracking systems, and One-Stop Border Posts (OSBPs). These measures, grounded in the EAC Customs Management Act, 2004, streamline clearance procedures and reduce costs. AfCFTA introduces similar commitments under its Annexes on Customs Cooperation and Mutual Administrative Assistance and Trade Facilitation.

The contradiction is that AfCFTA obliges member states to adopt reforms many EAC states have already operationalised. For Kenya and Tanzania, the result is dual reporting obligations, new administrative structures, and uncertainty as to which framework takes precedence. Without explicit harmonisation, customs officials may apply conflicting procedures, increasing transaction costs rather than lowering them.

Dispute Settlement: Judicial Authority versus Political Practice

The EAC Treaty vests judicial authority in the East African Court of Justice (EACJ). However, in practice, most disputes are settled politically at the ministerial level. AfCFTA introduces a more robust Dispute Settlement Body (DSB) modelled on the WTO system. This overlap creates jurisdictional uncertainty: should a dispute between Kenya and Tanzania be heard before the EACJ or the AfCFTA DSB? Conflicting rulings from different bodies could undermine predictability and the rule of law. Until African states clarify the hierarchy between REC courts and AfCFTA institutions, legal fragmentation will persist.

Way Forward

Resolving these contradictions requires deliberate legal, institutional, and policy alignment. First, EAC partner states should invoke Article 19(2) of the AfCFTA Agreement to clarify the hierarchy of obligations. This requires harmonisation of the EAC CET with AfCFTA schedules. Second, the Rules of Origin must be reconciled to allow for continental cumulation without undermining the customs union. Third, duplication in NTB monitoring should be eliminated through integration of the EAC platform into the AfCFTA system. Fourth, dispute resolution frameworks must be clarified by establishing rules on jurisdictional priority. Finally, political will is indispensable. States must refrain from arbitrary trade restrictions and respect binding decisions. If implemented, these measures would transform contradiction into complementarity, enabling East Africa to act as a leader in realising the AfCFTA’s vision.

Conclusion

The AfCFTA and the EAC are designed to be complementary. The EAC’s innovations provide a foundation on which AfCFTA can build, while AfCFTA offers businesses opportunities to integrate into continental value chains. Yet complementarity should not be assumed. Overlapping commitments and recurring NTBs risk turning synergy into confusion. The task for policymakers is to ensure that alignment is deliberate through legal harmonisation, administrative coordination, and political will to respect rules. If effectively managed, the coexistence of the EAC and AfCFTA can unlock unprecedented opportunities for East Africa. But, if mismanaged, the dual systems may entrench the very fragmentation AfCFTA was created to overcome.

The protections afforded to data subjects under the Data Protection Act (Cap. 411C) Laws of Kenya (the Act) empower them to dictate and control how their personal data is processed. To promote the right to privacy, the Act dictates how personal data is used for direct marketing. Despite extensive provisions under the Act, Determinations from the Office of the Data Protection (ODPC), reveal compliance gaps where a data controller or processor (collectively data handlers) opts to market directly to data subjects.

Under section 37(3) of the Act, the Cabinet Secretary together with the ODPC are to issue guidelines on the commercial use of personal data including direct marketing. Given that the ODPC is yet to publish these guidelines and in addition to the Act, this article proposes safeguards that a data handler can employ when marketing directly to their customers.

 

Commercial Use of Personal Data

For starters, data handlers have to be cognisant of the provisions governing this commercial use of personal data.

Under section 37(1) of the Act, a data handler can only use personal data for commercial purposes where – a) it obtains consent from the data subject; or b) authorised under a written law and the data subject is informed of such use during collection. Section 37 (2) of the Act requires data handlers to, where possible, anonymise personal data to ensure that the data subject cannot be identified. Under regulation 14(2) of the Data Protection (General) Regulations (the General Regulations), direct marketing is identified as a commercial use of personal data where – a) a catalogue is ad- dressed to a data subject; b) an advertisement is displayed on an online site where a data subject’s personal data has been captured; or c) an electronic message is sent to a data subject using their personal data. Per regulation 14(3) of the General Regulations, marketing is only direct when personal data is used to identify an individual.

Regulations 8(4) and (5) of the General Regulations recognises a data subject’s absolute right to object to processing in direct marketing. The Information Commissioner’s Office (ICO) – the data protection authority in the United Kingdom – describes this right to object as “stronger than any other objection”. Due to its absolute nature, once a data subject exercises this right, a data handler must stop all processing for direct marketing purposes.

Profiling is defined under section 2 of the Act as “automated processing of personal data” to evaluate and predict a data subject’s aspects i.e., interests, preferences and/or behaviour; in this case, to ensure targeted marketing. Regulation 13(2)(b) of the General Regulations expressly prohibits the use of a child’s profile for direct marketing.

Regulation 15 of the General Regulations prescribes instances where use of personal data, other than sensitive personal data, is permitted i.e., where – a) the personal data was collected directly from the data subject; b) the data subject is informed that direct marketing is among the purposes for collection; c) the data subject has given consent for direct marketing; d) there is a simplified opt out mechanism; or e) the data subject has not exercised his/her right to opt out of the direct marketing.

Regulation 16 of the General Regulations dictates that the opt out mechanism should be free of charge, clear, require minimal time and effort to effect, provide a direct and accessible communication channel, and accommodate persons living with disability.

Regulation 17(2) of the General Regulations requires that for a direct marketing opt out mechanism to be compliant, it should have a clear and accessible means for a data subject to exercise this right i.e., by replying with a single word instruction, using a prominent link to a subscription control centre, verbally during a phone call or by following instructions in each message. Further, under regulation 17(3) and (4) of the General Regulations, a data handler may allow the data subject to dictate his/her direct marketing preferences, including by opting out of all future direct marketing communications.

Under regulation 18 of the General Regulations, requests by a data subject to restrict disclosure to third parties must be complied with within seven (7) days.

 

Direct Marketing Infractions by Data Handlers

In ODPC Complaint 1994 of 2023 as consolidated with ODPC Com- plaint 1998 of 2023 and ODPC Complaint 2298 of 2023 – David Owuor & 2 Others v. Ceres Tech Limited t/a Rocketpesa, three (3) data subjects were awarded a cumulative sum of KES. 2,600,000 as compensation against Rocketpesa. The ODPC found that the data handler in inducing the data subjects to take loans, sent unsolicited promotional messages and calls without providing opt out mechanisms and without obtaining consent from the data subjects. For two (2) of the data subjects, the ODPC determined that Rocketpesa had disregarded their objection to processing requests. The ODPC further noted that as a repeat offender, Rocketpesa had not complied with a previous Enforcement Notice issued against it in ODPC Complaint 869 of 2023 – John Otieno v. Ceres Tech Limited t/a Rocketpesa.

 

In August 2024, the ODPC in ODPC Complaint 762 of 2024 – Dennis Gathara v. Goodtimes Africa ordered Goodtimes Africa to pay a data subject KES. 700,000 as compensation for the data handler’s failure to provide an opt out mechanism, honour the data subject’s objection to processing – despite this being an absolute right – and honour a request for erasure of personal data. The ODPC made its determination after investigations revealed that Goodtimes Africa had sent promotional messages to the data subject without his con- sent and in spite of his objection to processing.

 

Recommendations

While the Act stipulates minimum standards when marketing directly to data subjects, good practice requires more than just compliance with the Act and General Regulations but also calls for adoption of the best practice standards.

• Direct Marketing Suppression/Do Not Contact Lists

At a minimum, data handlers have to respect their data subject’s preferences i.e., the data subject’s right to object to processing, opt out of direct marketing activities, and erasure of their personal data. In respect of these preferences, other jurisdictions maintain direct marketing suppression/do not contact lists. This data protection practice is considered better when compared against wholesale deletion of a data subject’s details upon receipt of a request.

A suppression/do not contact list contains a list of people who have communicated their decision not to have their personal data used for direct marketing purposes. In using a do not contact list, a data handler retains minimal contact information for the sole purpose of ensuring that they do not inadvertently contact people who opt out of direct marketing. Thereafter, prior to carrying out any direct marketing initiatives, the data handler can cross check its records to determine who not to market to.

While it may seem counterintuitive when the Act requires a data handler to accede to an opt out request, this practice ensures stricter compliance with the direct marketing provisions under the Act; as only minimal contact details are maintained to ensure personal data is not used for direct marketing purposes.

The determinations by the ODPC referenced above depict blatant non-compliance with the provisions governing direct marketing under the Act. While the Act stipulates minimum standards when marketing directly to data subjects, as alluded to above, this article seeks to give recommendations to ensure data handlers create a robust privacy centric culture within their organisations. In our assessment, this requires more than just compliance with the Act and General Regulations but calls for adoption of the best practice standards that should permeate across the organisation’s data processing operations.

• Granular Consent Options

The Act requires a data handler to obtain a data subject’s consent prior to processing personal data for commercial use. While this is an irreducible minimum when handling personal data, we suggest that data handlers should go a step further and provide their data subjects with multiple consent options.

Regularly seeking consent for specific direct marketing activities, creates transparency with the data subject while ensuring that the data handler can definitively demonstrate that it obtained consent for each direct marketing activities.

In essence, granular consent options allow data subject to communicate their preferences when it comes to handling their personal data. Consequently, the data handler is able to align its marketing initiatives with a data subject’s preference; thereby giving the data subject control over his or her personal data and ultimately fostering trust in the relationship.

• Sensitisation and Training of Employees

Quite apart from training employees on the salient features of the Act, the data handlers would do well to develop customised training programmes aimed at addressing privacy challenges in their business. Such trainings ensure that there is constant messaging to employees of their obligations, which in turn creates a privacy centric culture within the business.

 

Upshot

Determinations from the ODPC reveal just how critical it is to create a privacy centric culture within an organisation. In conducting a cost-benefit analysis, it is clear that having data protection as a key consideration of a business’ operations is prudent. As ICO puts it, data protection must be “baked into” the company’s activities.

Furthermore, while these recommendations ensure that data protection is a key consideration, their application should not stifle a business’ ability to directly market to its customers. The idea is for the direct marketing to be undertaken with due regard to the data subject’s privacy rights.

Every year on the November 26^th, the World pauses to recognise the essential role of safe, affordable, accessible and sustainable transport systems in advancing economic growth, promoting social welfare and reducing greenhouse gas emissions through World Sustainable Transport Day (WSTD).

WSTD is a relatively recent observance, established in 2023 following the adoption of United Nations General Assembly Resolution A/RES/77/286 (UNGAR) in May 2023. Through this resolution, Member States, UN entities, regional and international organisations, and civil society were formally invited to commemorate the Day through education, awareness-raising, and advocacy activities dedicated to advancing sustainable transport.

This approach aims to reduce carbon footprints and encourage environmentally friendly practices in the transportation industry. As with any public awareness initiative, its value is measured by the meaningful advancements it encourages in pursuit of its underlying goals. It is therefore important to assess whether there has been significant transformation in the transport industry since the initiative’s inception in 2023.

The core purpose of WSTD, as established by the UN General Assembly Resolution, is to catalyse enhanced intermodal transport connectivity, promote environmentally friendly transportation solutions, and develop socially inclusive transport infrastructure. Since 2023, various governments and industries have launched different initiatives in each of these areas to meet these objectives.

 

Enhancing Intermodal Transport Connectivity

Intermodal transport connectivity networks are steadily expanding. A notable example is the Lobito Corridor project, which has been strengthened through international cooperation involving the United States, the European Commission, the African Development Bank (AfDB), and the Africa Finance Corporation (AFC). This infrastructure initiative spans Angola, the Democratic Republic of Congo (DRC), and Zambia, linking the Copperbelt region to the Atlantic Ocean via the Port of Lobito in Angola.

The project also underscores heightened focus on securing supply chains for critical mineral resources essential to technologies ranging from electric vehicles and solar panels to advanced defence systems.

Similarly, Cambodia’s government developed the Comprehensive Intermodal Transport and Logistics System (CITLS) Master Plan for 2023 to 2033, which integrates roads, rail, and inland waterways to improve freight flows and enhance the performance and efficiency of the transport sector.

 

Promoting Environmentally Friendly Transportation

According to BloombergNEF, sales of battery electric and plug-in hybrid vehicles are expected to rise by 25% in 2025 compared to 2024. This growth is largely attributed to declining lithium battery costs, which are expected to drive increased production and sales of these vehicles.

Countries are taking significant steps to promote electric vehicle adoption as part of broader sustainable transportation strategies. Quito in Ecuador, for instance, aims for all new public buses entering its transport system to be electric by 2040. Similarly, Kenya has experienced a marked increase in electric vehicle usage over the past few years. The Energy and Petroleum Regulatory Authority (EPRA) reported that by June 30, 2025, electricity consumption for e-mobility reached 5.04 GWh – a remarkable 300% increase from 1.26 GWh in the previous financial year.

 

Socially inclusive transport infrastructure

There has also been a significant rise in efforts to make transport affordable and accessible to all persons. Under this principle, we have focused on understanding the steps that Kenya has taken to ensure social inclusivity in transport infrastructure.

According to the Institute for Transportation and Development Policy (ITDP), Kenya is presently advancing transport projects and policies targeting marginalised groups. ITDP Africa and the Nairobi Metropolitan Area Transport Authority (NaMATA) have implemented coordinated efforts regarding the Bus Rapid Transit (BRT) system (with Lines 2, 3 and 5). The BRT design explicitly includes accessible features, such as level boarding platforms, ramps and wider doors, and priority seating for wheelchairs, pushchairs, and older adults.

Additionally, the National Gender and Equality Commission (NGEC), in collaboration with agencies such as NaMATA, has piloted public transport campaigns aimed at preventing gender-based violence and promoting safer commuting environments for women. These efforts represent only a sample of the broader initiatives being implemented to advance sustainable transport goals, reflecting the increasing commitment of various jurisdictions, government bodies, and institutions toward fostering safer, more inclusive, and environmentally responsible mobility systems.

 

Conclusion

Clear progress has been made toward achieving the objectives outlined above, particularly in advancing e-mobility as a central pillar of sustainable transport. This momentum is encouraging. However, a notable gap remains in technology transfer. While many African countries are embracing e-mobility through policy reforms and fiscal incentives, they continue to lag in developing homegrown e-mobility technologies or building the local capacity to manufacture electric vehicles.

Kenya, for example, has introduced tax incentives to ease the importation of electric vehicles, creating a favourable environment for collaboration with more technologically advanced jurisdictions. These partnerships present a valuable opportunity not just to access the technology, but to acquire the skills and knowledge necessary to adapt, improve, and eventually innovate upon it within local contexts.

In our view, this evolving landscape lays a strong foundation for the future of sustainable transport in Africa, one that is not only environmentally friendly and socially inclusive and anchored in local innovation and long-term self-reliance.