Proposed U.S.-Kenya FTA presents key opportunity for Biden administration to negotiate first enforceable gender clause in a U.S. FTA

The United States and Kenya launched negotiations of a free trade agreement (FTA) on July 8, 2020. On January 18, 2021, the Maritime Executive reported that observers in Kenya expressed concerns that the free trade initiative might stall in the new Biden administration. Despite this concern, pursuit of a free trade agreement with Kenya is not incompatible with longstanding U.S. free trade policy and would likely be compatible with Biden’s trade agenda. A May 2020 Congressional Research Service (CRS) report on the proposed U.S.-Kenya FTA Negotiations indicated that although Kenya is not a major U.S. trade partner, it has a dynamic economy and is the second-largest beneficiary of the African Growth and Opportunity Act (AGOA), set to expire in 2025. Moreover, negotiation of the U.S.-Kenya FTA presents the Biden administration with a key opportunity to negotiate the first enforceable gender clause in an FTA expected to be a model for subsequent US FTAs in Sub-Saharan Africa and around the world. It also provides both the U.S. and Kenya the opportunity to promote and ratify the 2019 ILO Convention 190 on Violence and Harassment at Work.

One day before the U.S. and Kenya launched negotiations of a bilateral FTA, the International Trade Centre (ITC) released Mainstreaming Gender in Free Trade Agreements, a report presenting recommendations to boost the participation of women in trade through FTAs. The research team that produced the report examined 73 FTAs involving 25 countries, finding that 40% contained no reference to gender whatsoever and 35% contained at least one reference to gender. Some of the report’s recommendations included embedding gender provisions in the Preamble and text of FTAs, leveraging corporate responsibility, adopting gender-related minimum standards, and strengthening monitoring and dispute settlement mechanisms. The ITC’s report highlighted three Best Practice examples of incorporating gender rights in FTAs – none of which include the U.S. as a trading partner. These Best Practice examples include the Canada-Chile FTA, the Canada-Israel FTA, and the East African Community (EAC) – of which Kenya is a member.

In Mainstreaming Gender in Free Trade Agreements, the ITC highlighted several key takeaways from its analysis of gender provisions in the EAC and two recent Canadian FTAs between Chile and Israel. Notable provisions in the two highlighted Canadian FTAs include: a stand-alone chapter on gender and trade, emphasis in the cooperative activities agenda on improvement of women’s job opportunities through education and job training, and creation of institutions to address concerns of women as both workers and entrepreneurs – for example, specialized gender-specific consultation measures and dispute resolution mechanisms.

The EAC treaty (of which Kenya is a signatory) contains provisions that highlight gender equality as a fundamental right, prescribe gender mainstreaming in all endeavors, and enhance the role and contributions of women in political, economic, and technical development. In fact, the EAC is not the only African multilateral institution that contains gender-forward provisions. The Common Market for Eastern and Southern Africa (COMESA) treaty contains a chapter titled, “Women in Development and Business” (Chapter 24). This chapter contains language emphasizing the need for full participation of women in sustainable growth programs for rural transformation and improvement of conditions in the informal sector.

Not only does negotiation of the U.S.-Kenya FTA afford the U.S. the opportunity to negotiate an agreement with a partner already experienced with the incorporation of gender provisions in trade arrangements – it affords both the U.S. and Kenya the opportunity to adopt bi-lateral measures to address serious issues facing women workers and entrepreneurs in Kenya.

Despite gender-forward provisions in the EAC treaty, women workers and entrepreneurs in Kenya encounter a number of challenges and obstacles in the workforce and economy because of their gender. In her article The Challenges Facing Small-Scale Entrepreneurs: A Case of Kenya, Fridah Muriungi Mwobabia found that despite the importance of small- and micro-enterprises (SMEs) to the Kenyan economy, women-owned SMEs encounter several challenges – such as problems accessing finance, sex-based discrimination, administrative and legal obstacles, and lack of access to education and training. According to the National Resource Institute study Gender, Rights & Participation in the Kenya Cut Flower Industry, women working in Kenya’s cut flower industry encounter employment insecurity, compulsory and unpaid overtime, sexual harassment and violence, and lack of adequate representation by trade unions due to their non-permanent employment status. In fact, the cut flower industry in Kenya – not to mention Uganda, Colombia, and Ecuador – has become a symbol of the horrors of sexual harassment and workplace violence in global value chains.

In their 2016 article Women’s work choices in Kenya: the role of social institutions and household gender attitudes, Giovanna De Giusti and Uma Sarada Kambhampati attribute these challenges in part to social attitudes and institutions that affect both women’s access to the labor market and the types of jobs they hold. Nor can it be assumed without question and analysis that FTAs and related policies are a net positive for women. In the report on a 2017 conference on the potential impact of European Union Economic Partnership Agreements (EPAs) on African parties, international and African trade union leaders found that EU EPA trade provisions (particularly those affecting agriculture) were expected to have more adverse effects on women. Despite this, the EU did not require or conduct gender impact assessments of EPAs with its African trade partners – and did not take into account inevitable adverse impacts on working women, female entrepreneurs, and women-owned SMEs.

Both the Biden administration and the U.S. Congress can ensure through legislation and policies not only that gender provisions are adopted in the proposed U.S.-Kenya FTA and other free trade and trade promotion agreements – but that those provisions are enforceable and designed to have a positive impact on the lives of women workers in Kenya, the U.S., and other countries that access to the U.S. market. Examples of legislative and policy measures include:

  • negotiating enforceable gender-related provisions in FTAs;
  • requiring gender impact assessments of existing and proposed FTAs;
  • adopting achievable goals for economic empowerment of women and girls both as workers and entrepreneurs; and
  • requiring that all U.S. FTA partners sign and ratify ILO Convention 190 on Violence and Harassment at work.

The U.S. is already falling behind the European Union, the EAC, COMESA, and nations like Canada, Chile, and Kenya in adopting and advocating for gender-forward FTA provisions. The Biden administration has an opportunity to reverse this trend – starting with the U.S.-Kenya FTA.

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