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In the midst of the global pandemic and economic chaos, the trade talks happening on video screens in Kenya and the U.S. might seem like a low priority, something to turn to in that hoped for time when things return to “normal”. But on trade policy, what we need is not a return to business is usual, it is new solutions based on an honest look at the causes of the multiple crises of health, inequality and climate chaos.

The proposed U.S.-Kenya free trade agreement (FTA) encompasses much more than trade in goods. Trade flows between the U.S. and Kenya are small. According to U.S. Census data, Kenya exported $667.1 million to the U.S. last year, primarily apparel, coffee and nuts. Those goods already enter duty free, and the amounts are too small to affect U.S. jobs or standards. U.S. exports to Kenya have also been limited up to now, totaling $401 million last year.

The Kenyan government seems most interested in locking in current unilateral tariff preferences under the African Growth and Opportunity Act (AGOA), which will be up for renewal in 2025. U.S. Trade Representative (USTR) presents this agreement as a model to replace unilateral tariff preference programs like AGOA to benefit U.S. exporters. AGOA and the similar Generalized System of Preferences are premised on the idea of Special and Differential Treatment for developing countries. In written comments to the Senate Finance Committee, USTR says those programs have failed to achieve the “transformative” effects that would follow from an FTA with the United States. Mexican farm organizations have a lot to say about the devastating impacts of those transformations, which drove more than two million farmers off their lands, led to stagnant poverty rates and job creation nationally, and fueled an obesity and public health crisis.

Apart from the dubious premise that five years from now Congress won’t renew a program that it has routinely extended in the past, a free trade agreement would require the Kenyan government to make new and permanent concessions in order to keep the tariff benefits they already have. Following on the USMCA template, this agreement would prohibit agricultural safeguards against surges of low prices or high volumes and exemptions on products like basic grains — ideas that are key to food security and protecting rural livelihoods.

Earlier this year, Kenya agreed to lower trade barriers on U.S. exports of wheat, potentially threatening small scale farmers in that country as well in neighboring African countries, which have been the source of 80% of Kenyan wheat imports in the past. As IATP has documented for more than 20 years, U.S. agribusinesses drive exports of grains at prices below the cost of production (dumping). Over the past five years, our calculations show that wheat has been exported at an average of 29% below the cost of production, creating unfair competition for local and regional producers. For now, if the current arrangement hurts local farmers or undermines regional markets, the Kenyan government could change course and reimpose the tariffs, something that would become nearly impossible under a permanent free trade agreement.

“If we are successful in these negotiations, Kenya can act as a lead or guide,” President Kenyatta stated at the start of the talks. “We will be the guinea pig so that many other African countries can follow suit.” The  USTR’s negotiating objectives make it equally clear that they intend to make the rules established in recent trade agreements, including USMCA, the template for this and potentially future agreements with other African countries and trading partners around the world. 

Continuing to lock in this set of rules would have negative impacts on both countries. For example, rules in USMCA on regulatory cooperation and technical barriers to trade create new obstacles to limits on agrochemicals like glyphosate, adding in requirements for endless notice and comment periods on new and existing regulations, requiring the use of so-called sound science based on safety data submitted in secret by industry, and demanding the least trade restrictive (rather than most effective) measures to protect public health. This is not a hypothetical issue. Mexico and many European countries are placing new restrictions on (or even eliminating) this herbicide due to health and environmental concerns, and a vigorous debate has emerged in Kenya. USTR has already lodged complaints about Mexico’s initial restrictions and threatens to advance on a full trade dispute. If the U.S. succeeds in undermining new restrictions on glyphosate in Kenya, Mexico and the EU, that will become the new normal, enforced by trade rules. This could open the door for corporations to challenge changes in rules on agrochemicals —whether in Kenya or the U.S. — undermining future efforts to rebuild food systems.

Kenya’s regulation of plastics is another target in the trade talks. News reports have raised questions about misleading claims by the oil and plastics industries on recycling of plastic waste products, which became even less profitable after China halted imports in 2018. Instead, The New York Times documented calls by the American Chemistry Council to expand exports of plastics to Kenya, contravening a 2017 law to ban the use of plastic bags, and Kenya’s recent pledge to stop plastic waste imports under a new protocol to the Basel Convention on toxic wastes. Rep. Earl Blumenauer, chair of the House Ways and Means Trade Subcommittee, warned, “What they are trying to do is not good policy for Kenya or for the United States and it’s an example of where trade agreements need to be more transparent.”

Kenya, like many African nations, has many food, chemical and other public health protections that are consistent with those of its major trading partner, the European Union. The EU bases standard setting on the precautionary principle, which allows regulators to ban products from the market until they are proven safe. The U.S. uses a risk-based approach, which generally allows products in based on safety studies submitted by industry (protected as confidential business information), often resulting in approvals until they are found to be unsafe.  

Just as in the U.S.-U.K. trade talks, if Kenya adheres to U.S. standards and this non-precaution-based approach to regulating, its products probably wouldn’t meet EU standards, for example on pesticide use and GMOs. This could limit its export opportunities as well as expose farmers and consumers to chemicals that have been determined unsafe by EU health authorities. Alternatively, Kenya could agree to let U.S. products into its market that do not meet current Kenya standards or EU standards without directly changing its standards. That wouldn’t affect trade with the EU. However, it would add to pressure on Kenya to change its standards to be like those in the U.S.

Debates — and trade disputes — around dumping and the wisdom of the precautionary principle have been going on for decades. What is new is the current pandemic-related global health and economic emergency, and the escalating climate crisis. In each of those cases, hugely important new solutions driven by local communities and informed by their values and lived experiences are emerging around the world. There is tremendous momentum around agroecology, which combines farmers’ knowledge of their specific situations with scientific advances in ways that lower input costs, raise incomes, and strengthen local food systems and biodiversity. Agroecology and the related concept of food sovereignty put democratic decision making and local food supplies at the center, strongly prioritized over international trade. The Alliance for Food Sovereignty in Africa (which has members in Kenya) has documented the success and imperative of agroecology in numerous papers and engagement in national and U.N. circles. Naturally, agroecology works best when the enabling public policies foster creative approaches driven by actual (and often site-specific) evidence. Such policies could include limits on floods of cheap imports or toxic chemicals.

The road these talks are on is designed to increase corporate control over our food systems and lock in obstacles to change. The two governments should suspend the official talks and open up the process to an honest discussion with civil society about the moment we are in and how to pave the way for new approaches that prioritize equitable and sustainable development.

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