Trade Remedies Act 2017

The Trade Remedies Act was enacted on the 21^st July 2017 and came into force on 16^th August 2017. The purpose of the Act is to provide for the establishment of the Kenya Trade Remedies Agency to investigate and impose anti-dumping, countervailing and trade safeguard measures.

The Trade Remedies Agency

The Act has established the Kenya Trade Remedies whose functions are as follows: –

• Investigate and evaluate allegations of dumping and subsidization of imported products in Kenya;
• Investigate and evaluate requests for application of safeguard measures on any product imported in Kenya;
• Advice the Cabinet Secretary on the results and recommendations of its investigations;
• Initiate and conduct public awareness and the training of stakeholders on its functions and on trade remedies;
• Publish and disseminate manuals, codes, guidelines, and decisions relating to its functions; and

Management of the Authority

The management of the Agency shall be administered by a Board made up of a chairperson appointed by the President upon the recommendation of the Public Service Commission; The Principal Secretary or representative in the Ministry of finance, trade, and industrialization; The Attorney-General or representative; 3 other members appointed competitively by the Cabinet Secretary of Trade; and the Executive Director of the Agency who shall be the Secretary.

Anti-Dumping and Countervailing and Safeguard Measures

The Act provides for the power to impose anti-dumping, countervailing and safeguard measures and powers to investigate, evaluate and adjudicate procedures. The law defines anti-dumping, countervailing and safeguard measures as follows:

• Countervailing measures means a special duty levied for the purpose of offsetting any subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise. The Cabinet Secretary is in a case of subsidized goods imported in Kenya, issues a countervailing duty in an amount equal to or less than the amount of subsidy on the imported goods.
• Dumping means the introduction of a product into the commerce of the country at an export price that is less than its normal value. The dumping margin means the difference between the export price and the normal value as it results from the comparison of the two. The Cabinet Secretary is expected to impose, in the case of goods dumped in Kenya, an anti-dumping duty in an amount equal to or less than the margin of dumping of the imported goods.
• Safeguard measures means the temporary imposition of a tariff or quantitative restrictions or other necessary permissible measures to prevent or remedy serious injury and to facilitate adjustments of the concerned industry;

Investigation

The Act provides for any person to make an application for;

• The conduct of the investigation or evaluations of alleged dumping or subsidized exports in Kenya.
• Application for investigation, the conduct of investigation or evaluation of imports that have caused or threaten to cause serious injury to an industry in Kenya to be conducted.

Investigation officers will be appointment by the Board to carry out investigation duties and given power of to enter and search under warrant any premises that are within the jurisdiction of that court issuing the warrant.

The Agency has powers to obtain information, where it may in writing and within a specified period, direct any person to provide the Agency with any information relating to an investigation or evaluation in a prescribed form. The Agency can term information disclosed to it as confidential. This shall be done in writing setting out the grounds for the information to be treated as confidential information. In addition the Act restricts the Agency from disclosing to any unauthorized person information that is confidential until the Agency determines the extent to which confidentiality shall be extended regarding the information.

Offences

The Act creates the following offences:

• Where a person discloses information that has been declared confidential concerning the affairs of any person obtained by an authorized person in carrying out any function or exercising any power under the Act or as a result of initiating a complaint or participating in any proceedings under the Act.
• Where person hinders, obstructs or unduly influences any person in the exercise of a power or the performance of a duty under the Act.
• Where a person, when summoned, under the Act if –
• Fails, without sufficient cause, to appear at the time and place specified or to remain in attendance until excused; or
• Attends as required, but refuses to be sworn in or to make an affirmation or fails to produce a book, document or any other item as required, if it is in the possession of, or under the control of, that person.

Penalty

A person convicted of an offence under the Act, where no penalty is provided for, is liable to a fine not exceeding five million shillings or to imprisonment for a period not exceeding five years, or to both.