EAC COMMON MARKET UPDATE

Transcription

1 EAC COMMON MARKET UPDATE Tracking Kenya s Compliance to the EAC Common Market Protocol Nairobi, September 20, 2016

2 EAC Common Market Protocol What did the EAC Partner States Commit To? +2,700 commitments Capital Services Goods Roll back & stand still on measures A system of exemptions

3 EAC Common Market Protocol Rigorous, Transparent, Timely Ex-ante monitoring Tracks bills, draft regulations & administrative notices EAC Common Market Update Accelerates Trade & Investment Monitors subnational actions Tracks municipal & county regulations & administrative notices

4 How Does EAC s Economy Compare with Peers? Emerging Economies GDP 2015 Selected African Economies GDP 2015 India 2,073 Nigeria 481 Brazil 1,774 Egypt, Arab Rep. 330 Mexico 1,144 South Africa 312 Turkey 718 Algeria 166 EAC 154 EAC 154 Hungary 120 Angola 102 $bn $bn Source: World Bank Source: World Bank

5 EAC Common Market Update Highlights Capital Introduced regulations for derivative products. Kenya has recently instituted several measures that require minimum equity participation. Legal and regulatory reforms removed 4 non-conforming measures, but added 8. Services Since 2010, Kenya has instituted several national treatment measures particularly minimum citizen ownership criteria and mandatory joint ventures. Measures affect particularly transport, communications, mining and tourism. Goods In the last 6 months, Kenya has imposed at least 6 NTBs (mostly tariff related), and has had at least 7 imposed against it mostly TBT/SPS. Sub-National Busia Municipal Council (Uganda) institutes a law requiring all professionals and service providers to get permits. Mombasa County institutes 3 measures affecting movement of goods.

6 Movement of Capital Facilitates trade and deepens financial markets

7 20 Operations to be Free of Restrictions Movement of Capital Article 24, EAC Common Market Protocol: Eliminate Restrictions based on Nationality, Place of Residence, Current Payments, Where Capital is Invested. 20 OPERATIONS Securities Operations 1-14 Credit Operations Direct Investment Personal Capital Transactions 20 Source: EAC Common Market Protocol

8 Implementation Status Movement of Capital REFORMS Companies and Insolvency Legislation (Consequential Amendment) Act Act No. 1 of 2014, Section 37 Repeals S. 22 of the Insurance Act, now allowing citizens of EAC Partner States to own at least one third of controlling share capital of an insurance company. Act No. 1 of 2014 amending Section 153(2) of the Insurance Act Repeals requirement that at least 60% of paid up capital of an insurance broker should be owned by Kenyans, reserves that portion to citizens of EAC Partner States. Capital Markets (Derivatives Markets) Regulations 2015 Kenya now complies with requirement to establish regulations for derivative products. The Capital Markets (Foreign Investors) Regulations, 2002 (Amendment 2015), Regulation 3(1) Emphasizes that any proportion of the voting shares of an issuer after an initial public offering shall be available for investment by foreign investors without any restrictions in the level of holdings, unless excepted. Source: East Africa Trade and Investment Hub

9 Implementation Status Movement of Capital Capital Markets (Derivatives Markets) Regulations 2015 NEW RESTRICTIONS Regulation 17(1) provides that at least fifteen per cent of the paid up share capital of a derivative exchange shall be held by a Kenyan entity. Public Procurement and Asset Disposal Act 2015 By defining a citizen contractor to mean a firm wholly owned or controlled by persons who are citizens of Kenya By reserving 21% of total score in procurement evaluation for citizen contractors Investment Promotion Act, S.4 By considering citizens of other EAC Partner States as foreigners for purposes of the Investment Certificate; By requiring a higher limit of investment amount from citizens of other EAC Partner States to be entitled to an investment certificate, $100,000 instead of KShs. 1m for a resident. Mining Act 2016 A mineral right may only be acquired by or granted to a company registered and established in Kenya. A mineral dealer should have at least 60% of shareholding held by Kenyans. Company that applies to be granted artisanal mining rights should have at least 60% of shareholding held by Kenyans.)

10 Implementation Status Movement of Capital NEW RESTRICTIONS Companies Act, 2015, S. 975 (2) (b) 30% of shareholding held by Kenyan citizens pursuant to s. 975 (2) of the Companies Act Private Securities Regulations Act 2016, S. 29 (2) Companies seeking to be registered to offer private security should have at least 25% of its shareholding held by Kenyans. Merchant Shipping (Maritime Service Providers) Regulations, 2011, Regulation 5 A company investing in merchant shipping should have at least 51% of its share capital held by Kenyans Kenya Information and Communications (Broadcasting) Regulations 2009, Regulation 14(5) A person subscribing for broadcasting licence should hold at least 20% minimum Kenyan equity participation.

11 Implementation Status Movement of Capital Section 975 (2) (b) Companies Act, 2015 Foreign companies must demonstrate that atleast 30% of the company s shareholding is held by Kenyan citizens by birth Contrary to: Article 24, CMP requiring removal of Movement of Capital restrictions Article 25, CMP, requiring notification of measures and furnishing of proof Article 119 of Constitution of Kenya (2010) A $66bn online transportation network company A $536bn search engine Kenyans by Regsitration

12 Movement of Services Raises productivity and creates new jobs

13 Services Are Key for Economic Growth & Competitiveness GDP Per Capita Contribution of Services to GDP Australia 56, % Switzerland 80, % Denmark 52, % Kenya 1, % Norway 74, % Singapore 52, % United States 55, % Tanzania % By 2011 services accounted for nearly two-thirds of global gross domestic product (GDP) Services trade generally correlates to GDP per capita Creates new industries Source: East Africa Trade and Investment Hub

14 The Four Modes of Supply of Services Location of Provider Location of Consumer MODE 1: Cross-border supply Service supplier NOT present within the territory of the Partner State MODE 2: Consumption abroad MODE 3: Commercial presence Service supplier present within the territory of the Partner State MODE 4: Presence of a natural person Source: WTO

15 Kenya s New Measures are Predominantly National Treatment-Related Advocates Act Cap 16, S. 11 Restricts advocates from other EAC Partner States from Kenyan Courts. They also cannot sign or file any pleadings in court. Engineering Technologists and Technicians Act 2016, S. 18(1) (b) Requires Kenyan residency and working permit for registration. For firms, local incorporation and at least 51% of shares must be held by Kenyan citizens. Public Tolls Act, Second Schedule Transit toll charges for only foreign-registered vehicles. Civil Aviation (Air Licensing) Regulations, 2009, Regulation 5 (b) Air service and aircraft licenses only for Kenyan citizens, and majority (51%) voting rights in firms must be held by the State or citizens. Kenya Information and Communications (Broadcasting) Regulations, 2009, Regulation 14 (5) A subscription management services licensee required to have minimum local equity participation of 20% Tourism Act, Authority Regulations, 2014, Regulation 24 Only Kenyan citizens employed in regulated tourism activities or services unless no Kenyan is available. Authority has to approve employment after verification.

16 Bills Currently Before Regional Parliaments Contain Inconsistent Measures KENYA TANZANIA ICT Practitioners Bill (2016) Requires Kenyan registration and certification to engage in ICT services Energy Bill (2015) Petroleum Bill (2015) Mandatory local goods, services, labor, training and financing Chemist Professionals Bill (2016) Temporary and specific registration for nonresidents Valuers Registration Bill (2016) Temporary and specific registration for non-residents (not committed) Fisheries Research Bill (2016) Agricultural Research Institute Bill (2016) Additional registration procedures, mandatory local partnerships

17 NCMs Lock out or Limit Professionals from Regional Opportunities Engineers Act, Cap 530 A, Section 20 (1) (c) a person may register an engineering consulting firm if at least fifty one percent of the shares in the firm are held by Kenyan Citizens. Largest private investment in Kenya s history - 40,000 acres, 310mw Helios disposal of 24.99% of shareholding in Equity Group Advocates Act, Cap 16, Section 11 (Amended 2012) Restricts advocates from other EAC Partner States from Kenyan Courts unless instructed by, and if appearing in court has to appear with a Kenyan advocate. They also cannot sign or file any pleadings in court.

18 Movement of Goods Drives economic growth and expands consumer choices

19 Key Obligations Movement of Goods Eliminate Tariffs and Equivalent Measures Eliminate Non Tariff Barriers Article 5 (2) (a) EAC CMP Implement the External Tariff Sanitary, Phyto-sanitary Standards and Technical Barriers to Trade Source: EAC Common Market Protocol

20 Elimination of Tariff Barriers Movement of Goods Kenya, and all other EAC Partner States, formally eliminated tariffs on intra-regional trade by 2010 but continue to apply measures of equivalent effect and fail to abide by ROO requirements. The Report of 21st EAC Regional Forum on Elimination of NTBs, 30th June, 2016 reveals new measures: Imposed by Kenya Mombasa County transit fees of Kshs 6,000 per transit cargo truck Mombasa County parking fee of Kshs 500 per day on cargo transit trucks waiting to load cargo in the parking yard KRA tax stamp on printed codes on beer and keg manufactured or imported into Kenya, manual applications Duties on Tanzania Breweries Ltd products Redds & Castle Lite Beer Imposed Against Kenya TRA & TFDA did not recognize a COO by exhibitor for the 40th Dar es Salaam International Trade Fair, charged duties on goods.international Trade Fair and charged duties on goods. Source: EAC Common Market Protocol, EAC Secretariat.

21 Stays of Application Legal, but Undermine CET Kenya requested for and obtained approval of the following stays of application for one year - EAC Legal Gazette Notice, 30th June 2016 Revenue stamps Duty rate of 25% instead of 0% Rice Duty rate at 35% or USD 200/ Metric ton instead of 75% or USD 345/MT Paper and paperboard products Duty rate of 25% instead of 0% Bridge and Bridge sections Duty rate of 25% or USD 250/MT LPG Containers Duty rate of 25% instead of 0% Source: EAC Common Market Protocol

22 Iron, Steel and Sugar are regularly granted stays Iron and Steel products: Uganda and Tanzania HS code Increased duty rate of 25% instead of 0% HS Code apply duty rate of 10% instead of 25% HS Code apply duty rate of 10% instead of 25% Sugar for Industrial use: Uganda, Burundi, Tanzania and Kenya to start implementation of the remitted levels in 2017/18 Reduced the remitted level progressively as follows: 2016/17 85% and apply import duty rate of 15% 2017/18 80% and apply import duty rate of 20% 2018/19 75% and apply import duty rate of 25% Source: EAC Common Market Protocol

23 Technical Barriers to Trade, Sanitary & Phytosanitary Measures Movement of Goods Kenya ratified the EAC Protocol on Sanitary and Phytosanitary (SPS) Measures on 29th June, 2016, joining Rwanda and Uganda. According to the 30th June, 2016 NTB report, measures continue: Imposed By Kenya KEBS conducts double checks on products already approved by TBS & TFDA causing up to 21 day delays. Source: EAC Common Market Protocol, EAC Secretariat.

24 Technical Barriers to Trade, Sanitary & Phytosanitary Measures Movement of Goods NTBs Imposed Against Kenya TFDA registers injectables as per pack size and treats each product by itself rendering retaining licences for the product very expensive; TFDA product registration is double other countries charge of $1,000, demands renewal at same price every 5 years, annual retention fee of USD 300; Tanzania requirement for certificates of analysis and health certificates even after the products have KEBS authorization Kenya exports to Tanzania subjected to verifications at manufacturers premises, yet it is also compulsory for trucks to pass through ICDs for full verification at border. Tanzania requires pallet fumigation for wooden pallets entering Tanzania. Exports to DRC subjected to verification at Busia (signed and sealed) but re-verification required at Busitema

25 RECOMMENDATIONS A common market implementation test for bills and draft regulations Development of notification and transparency procedures Putting private sector at the center of implementation efforts Strong partnerships for communications in support of the protocol

26 For further enquiries please contact: ALFRED OMBUDO K OMBUDO LEAD AUTHOR akombudo@eatradehub.org