March 7, 2023 Officials from the U.S. and Kenya recently met in Washington DC for their first conceptual discussions of the US-Kenya Strategic Trade and Investment Partnership (STIP). This STIP is the Biden administration’s alternative to the Trump-initiated U.S.-Kenya Free Trade Agreement (FTA) negotiations.

The Kenya STIP is the latest in a patchwork of pacts and agreements by the US that will deal with so-called “digital trade” among other issues. Tech giants and corporates mostly based in the US have made clear their hopes for the STIP, according to new research from Strathmore University’s Centre for Intellectual Property and Information Technology Law (CIPIT) based in Nairobi.

What exactly is the US-Kenya STIP? What are the concerns of digital rights experts and advocates in Kenya? Why should legislators in the US and Kenya care about its implications for consumer privacy and Big Tech accountability?

Nairobi – Last year, the Biden administration announced the decision to proceed with a strategic trade and investment partnership (STIP) between the U.S. and Kenya. The first round of negotiations recently concluded in February, though not much detail has been made available to the public.

In this context, the Digital Trade Alliance hosted a webinar on March 7 with Kenyan and U.S. experts on digital rights and trade to discuss what is currently known about the U.S.-Kenya STIP and what are its potential implications for digital rights in Kenya.

Melinda St. Louis, director of Public Citizen’s Global Trade Watch, shared some of the context from the U.S. side and moderated a discussion with Kenyan experts, Dr. Melissa Omino and Dr. Paul Ogendi.

Melinda St. Louis, Public Citizen’s Global Trade Watch, opened by explaining that the U.S.-Kenya STIP lives in the shadow of the Trump-initiated U.S.-Kenya Free Trade Agreement negotiations, which the Biden administration shelved over misalignment with the previous negotiation’s priorities and ambitions. Negotiations resumed under the Biden administration after reviewing the STIP’s compatibility with the “build back better” agenda. U.S. Trade Representative Katherine Tai has stated that the Biden administration will not repeat the past mistakes of prioritizing market efficiency over labor and environmental standards. The Biden administration has very clearly stated that this deal will not include market access provisions, a welcome change after decades of U.S. trade policies that privileged large business interests, leading to job offshoring to countries with exploitative labor conditions, encouragement of polluting industries, and constraints on domestic policymaking to protect consumers.

The U.S. administration has stated that including rules on “digital trade” will be an important element of U.S.-Kenya STIP. The digital provisions in trade agreements create binding obligations which can restrict countries from upholding the democratic commitments that they’ve made to their constituents. Advocates are concerned about repeating past mistakes, pointing to the digital trade provisions included in the U.S.-Mexico-Canada Agreement (USMCA) pushed by Big Tech companies which constrain governments’ policy space to protect consumers’ data and hold Big Tech corporations accountable.

Dr. Melissa Omino, Acting Director of Strathmore University’s Center for Intellectual Property and Information Technology (CIPIT) based in Nairobi, offered key insight into the ongoing negotiations, pointing to how Kenya has taken steps to address concerns about digital rights, passing the Data Protection Act in 2019 to govern and regulate the exchange of data. Provisions in the U.S.-Kenya STIP have the potential to undermine these important efforts by allowing the interests of Big Tech to subvert the very legal framework established by various stakeholders in Kenya all working towards ensuring the spirit of the right to privacy in the Constitution was upheld.

Digital trade is a new frontier for Kenya, which leads to speculation around what Kenya can bring to the bargaining table. Kenya is a leader in East African trade and digital innovation; however, negotiating with a superpower like the U.S. rarely yields a positive track record for developing countries. Considering the major power imbalance between the two countries, developing a regional strategy would possibly expand Kenya’s bargaining power.

Because free trade agreements (FTAs) are normally negotiated in secret, it’s difficult to tell what the final text of the U.S.-Kenya STIP will look like, but the comments solicited from industry lobbyists offer key insight. Dr. Omino and her team analyzed the public comments submitted by U.S. Big Tech companies. These comments include concerns over policymakers addressing data localization, AI regulation, source code transparency, and consumer privacy. Unfortunately, most of these comments reflect the interests of private actors rather than consumers and workers. If these concerns are considered in the wider framework, the U.S.-Kenya STIP would directly challenge Kenya’s regulations and laws, which is troubling because privacy is a fundamental right in the Kenyan constitution.

Dr. Omino went on to explain that there are some battles between least developed countries (LDCs) and developing countries when it comes to maintaining policy space, but it’s important to align on common ground to build flexibility into future agreements. As it pertains to data, it’s crucial to think about how advancements in AI and tech could impact consumers in the future. That can be difficult when negotiators aren’t familiar with issues around data privacy and expert input is sidelined.

She concluded by emphasizing that the African Continental Free Trade Area (ACFTA) contains digital trade stipulations. It will be illuminating to see how Kenya is able to navigate negotiating with the U.S. at the same time. The U.S. will likely use this trade agreement as a blueprint moving forward, so the U.S.-Kenya STIP is setting the standard for how data is considered in forthcoming trade agreements. That is why officials must include the public in the ongoing negotiations. Lack of clarity and transparency have been major obstacles for Kenyan civil society to voice concerns. At the end of the day, this doesn’t have to be a technical conversation. It simply boils down to basic rights.

Dr. Paul Ogendi, Faculty of Law, University of Nairobi Kisumu Campus, explained that after the Trump administration initiated the first round of FTA negotiations, there was a realization that the East African community was not moving collectively. Different countries pushed for different agendas, creating regional fragmentation. The conversation has moved past medicine access towards digital rights, which shows how the U.S.’ interests have shifted. We won’t truly know how Kenya’s priorities have shifted until the text is made available to the public.

He stated that the Kenyan government’s approach to these negotiations is paternalistic. They exclude civil society because they assume that civil society’s only role is agitation. However, sidelining public involvement is a recipe for disaster because trade is just another topic. It’s not something exclusionary and elitist. Kenyan experts have very valid concerns that the U.S. is going to pursue an agenda consistent with Big Tech’s interests which may very well undermine the privacy rights outlined in the Kenyan constitution.

Trade on the African continent is a very high priority for other African nations, and Kenya should be cognizant of that. This deal could impact the relationship between Kenya and other East African countries. Kenya will lose if it stops collaborating regionally, which underscores the importance of engagement with East Africa. As negotiations continue, officials must consider what the ACFTA protocols require in the interests of regional cooperation, especially because the U.S. has the power to derail progress made on ACFTA’s regional integration. The U.S. will disrupt the region if it uses bilateral agreements to supersede Africa’s data protection protocols. This behavior would emulate the “divide and rule” colonial structures that Africa is trying to break free from. Kenya has tried to collaborate bilaterally in the past with these superpowers, but it doesn’t bring about substantial change. Regional collaboration must be prioritized.

Dr. Ogendi concluded by emphasizing that public participation alone isn’t enough. There have always been conflicts between public interests and human rights. Public participation can include private sector interests which often align with Big Pharma and Big Tech. Yes, governments should listen to everybody, but they can’t leave the vulnerable behind in the process. Human rights impact assessments must be a step in the trade negotiation process. Trade provisions on data privacy can fundamentally alter people’s basic rights and freedoms, and human rights should always be the bottom line.