High Court Halts Implementation of eTA and Other Provisions in Immigration (Amendment) Regulations 2023

High Court judge Justice Bahati Mwamuye has recently delivered a pivotal ruling that poses a significant challenge to the Kenya Kwanza government. The judge issued conservatory orders halting the implementation of the Immigration (Amendment) Regulations 2023, which introduced the Electronic Travel Authorisation (eTA) system, mandating visitors to Kenya to pay a fee of $30. This ruling reflects growing concerns regarding the legality and transparency of the recent amendments.

The court’s decision comes in the wake of several petitions questioning the amendment’s adherence to due process. The ruling specifically states: “Pending the inter parties hearing and determination of the petitioner’s Motion Application, a conservatory order be and is hereby issued staying the implementation or further implementation or the further application and enforcement of the Kenya Citizenship and Immigration (Amendment) Regulations, 2023.” This emphasizes the court’s intent to thoroughly evaluate the legal grounds for the amendments before allowing them to proceed.

The Immigration (Amendment) Regulations 2023 significantly altered various aspects of Kenya’s immigration system. The introduction of the eTA system was positioned as a critical component of Kenya’s visa-free entry policy, which aligns with a directive from President William Ruto aimed at enhancing security and efficient identification of travelers. The eTA framework requires travelers to pay a fee, yet the government maintains that this is a matter of national security rather than a means of tax collection.

In addition to the eTA system, the amendments include other stringent requirements, such as the Advance Passenger Information (API) directive. Under API, airlines are mandated to provide detailed information about passengers prior to their arrival in Kenya. These measures are indicative of a broader strategy aimed at tightening border control and enhancing the country’s security protocols.

Furthermore, the regulations have set higher standards for those applying for Kenyan citizenship. Applicants now must submit a statutory declaration affirming they have not pledged allegiance to any foreign state or served in military forces engaged in hostilities against Kenya. Such stipulations have heightened the scrutiny around citizenship applications, leading to concerns among various stakeholders regarding fairness and transparency in the immigration process.

Justice Mwamuye’s ruling also extends to halting any financial transactions related to the eTA system. This includes blocking access to, withdrawing, or transferring any funds collected under the eTA framework. The judge’s order explicitly prohibits the department from compensating any agents, employees, or associated entities involved with the eTA system using these collected funds, further complicating the government’s implementation strategy.

The ruling underscores the importance of accountability and due process in the enforcement of government regulations. Justice Mwamuye has instructed all 11 respondents involved in the case, including Interior Cabinet Secretary Kipchimba Murkomen, the Attorney General’s office, and the Director of Immigration and Registration of Persons, to provide comprehensive documentation related to the regulations to the court prior to the next hearing. This directive aims to create transparency around the decision-making process and the legal framework that underpins the recent changes.

Next steps are scheduled as the conservatory orders will remain effective until June 25, when the court will reconvene to hear the case. The motion will be mentioned on this date to confirm compliance and to establish further procedures, whether that involves setting dates for written submissions or determining a date for a ruling or judgment.