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Legal, Policy and Institutional Framework for Gender Equality in Kenya



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

Kenya has been on a journey towards achieving gender equality and equity, a goal that has remained elusive over the years. There have been policies aimed at promoting the same and they have always been reviewed or replaced by new ones in a bid to improve on the framework and address any gaps. There have been positive steps that have been realized along the way such as recognition of equality of men and women rights to own property or inherit property and fair labour practices, among others. Despite this, Kenya cannot boast of an impressive track record as gender inequality is still manifest.

Constitution of Kenya 2010

The Constitution of Kenya 2010 was the culmination of the recognition of the need to streamline gender issues in the country’s development agenda. It not only guarantees equality and nondiscrimination of all persons regardless of gender, but also has outlined some remedial measures to address the existing inequality in the country. It forms the basis of all other efforts since the year 2010.

National Policy on Gender and Development, 2000

Notably, the first National Policy on Gender and Development was adopted in 2000 and was meant to provide a legitimate point of reference for addressing gender inequalities at all levels of government and by all stakeholders, and further provided an avenue for gender mainstreaming across all sectors in order to generate efficient and equitable development outcomes for all Kenyans. The National Policy on Gender and Development of 2000 has since been reviewed in order to align it to the new legal framework including the Constitution of Kenya. This was superseded by the Sessional Paper No. 2 of 2006 on Gender Equality and Development which was meant to promote women empowerment and mainstreaming the needs of women, men, girls and boys in all sectors of development in Kenya so that they can participate and benefit equally from development initiatives.

National Policy for Prevention and Response to Gender Based Violence, 2014

The National Policy for Prevention and Response to Gender Based Violence’s main purpose was to put in place a framework to accelerate implementation of laws, policies and programmes for prevention and response to Gender Based Violence (GBV) by state and non – state actors for the realization of a society where men, women, boys and girls are free from all forms violence. This Policy sought to achieve the following objectives: to facilitate a coordinated approach in addressing GBV and to ensure effective programming; to improve enforcement of laws and policies towards GBV prevention and response; to increase access to quality and comprehensive support services across sectors; and to improve sustainability of GBV prevention and response interventions. The Policy also acknowledged that while it is women and girls who suffer the greatest share of GBV in the country, men and boys also experience the same. Land Laws such as the Land Act and Land Registration Act acknowledge the right of women to acquire, inherit and hold or dispose land. However, the reality on the ground is that women and girls are still being dispossessed of property especially when it comes to inheritance.

National Gender and Equality Commission

The National Gender and Equality Commission is established under the National Gender and Equality Commission Act, 2011 which was enacted to establish the National Gender and Equality Commission as a successor to the Kenya National Human Rights and Equality Commission pursuant to Article 59(4) of the Constitution; to provide for the membership, powers and functions of the Commission, and for connected purposes. The functions of the Commission are, inter alia, to: promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution; monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private institutions; act as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to equality and freedom from discrimination and relating to special interest groups including minorities and marginalized persons, women, persons with disabilities, and children; and co-ordinate and facilitate mainstreaming of issues of gender, persons with disability and other marginalised groups in national development and to advise the Government on all aspects thereof.

State Department for Gender Affairs

The State Department for Gender Affairs falls under the Ministry of Public Service, Youth and Gender Affairs. The Ministry of Public Service and Gender was created under the re-organization of the National Government in November 2015. The mandate of the State Department of Gender is hinged on the Constitution of Kenya and Executive Order of June, 2018. It is responsible for: Gender Policy Management; Special Programmes for Women Empowerment; Gender Mainstreaming in Ministries, Departments and Agencies (MDAs); Community Mobilization; Domestication of International Treaties and Conventions on Gender; and Policy and Programmes on Gender Violence.

Gender and Development in Kenya: The Challenges

The 2014 National Policy for Prevention and Response to Gender Based Violence identified the following as the greatest contributing factors to GBV in Kenya: unequal power relations between men and women; socio-cultural norms that normalize GBV, discriminatory practices and changing gender roles; poverty; illiteracy; breakdown of the family unit and support systems; insecurity; alcohol and substance abuse; uncensored media content; and conflict; political instability as well as poor enforcement of laws and policies. While it is worthy pointing out that the 2014 Policy was geared towards dealing with GBV, the above factors contribute to much more than just GBV; they hamper the equal participation of both men and women in development matters in the country. Indeed, one of the guiding principles of the 2014 Policy was recognition of the importance of gender equity and gender equality in national development.

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, the advisory opinion related to two discrete elements in respect of which the Attorney-General thus moved the Court: “The Advisory Opinion of the Court is sought on the following issues: A. Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1) (b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March, 2013? B. Whether an unsuccessful candidate in the first round of Presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution?”

Regarding the one-third gender rule, the Attorney-General moved the Supreme Court seeking an opinion as to whether the terms of Article 81(b) apply in respect of the very next general elections, to be held on 4 March 2013, or on the contrary, apply progressively over an extended period of time. The Supreme Court observed as follows: [47] This Court is fully cognisant of the distinct social imperfection which led to the adoption of Articles 27(8) and 81(b) of the Constitution: that in elective or other public bodies, the participation of women has, for decades, been held at bare nominal levels, on account of discriminatory practices, or gender-indifferent laws, policies and regulations. This presents itself as a manifestation of historically unequal power relations between men and women in Kenyan society. Learned counsel Ms. Thongori aptly referred to this phenomenon as “the socialization of patriarchy”; and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole. Thus, the Constitution sets out to redress such aberrations, not just through affirmative action provisions such as those in Articles 27 and 81, but also by way of a detailed and robust Bill of Rights, as well as a set of “national values and principles of governance” [Article 10].

While there was no unanimous decision on whether implementation of the one-third Two-thirds gender rule was to be realized immediately or progressively, Kenya is still grappling with the question of gender representation in the elective posts in Kenya, with the recent advisory opinion from the Chief Justice directed to the President on the need to dissolve Parliament for failure to uphold the gender equity constitutional requirements complicating the debate even further. The Deputy Chief Justice has since appointed a special bench of judges to decide on the constitutional status of the advisory opinion as issued by the Chief justice. The upshot of the above is that despite Kenya’s progressive constitutional and statutory framework on achieving gender mainstreaming, the country is far from enjoying gender equality and equity especially in relation to women’s position in leadership and national development roles, with representation of women in Kenya’s Parliament remaining minimal over the years despite the promulgation of the current Constitution of Kenya in 2010.

Indeed, despite its leading economic position in the East African region, Kenya ranks the lowest among the East African countries when it comes to the place of women in leadership positions. For instance, in 2016, it was reported that women held 64 percent of seats in the lower house of Rwanda’s national legislature, the largest share of any country. However, despite this commendable state of affairs in Rwanda, there are conflicting reports on the status of women rights in everyday life, with some reporters saying that the political state of affairs is very different from every day community life of women in Rwanda. It is therefore possible to have a politically empowered group of men and women but without guaranteeing them enjoyment of other fundamental rights. As things stand, it is therefore safe to argue that the problem of gender inequality and inequity in Kenya goes beyond availability of statutory and constitutional framework. It is for this reason that the 2019 National Policy on Gender and Development was drafted in order to enable the stakeholders take practical steps towards addressing the existing challenges.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Revisiting the Role of Law in Environmental Governance in Kenya, Available at: Muigua, K., Actualizing the National Policy on Gender and Development in Kenya, Available at: Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021. 


Flowe, H. D., and Others, “Sexual and Other Forms of Violence During the COVID-19 Pandemic Emergency in Kenya.” (2020), available at: (Accessed on 18 December 2021).

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, Advisory Opinions Application 2 of 2012.

Jagoe, K., and Others, “Sharing the burden: Shifts in family time use, agency and gender dynamics after introduction of new cookstoves in rural Kenya.” Energy Research & Social Science 64 (2020): 101413.

Kenya Law, ‘Chief Justice’s Advice to the President on Dissolution of Parliament for Failure to Enact the Gender Rule,’ Available at: (Accessed 18 December 2021).

KEWOPA, ‘Actualization and Implementation of the “Two-Thirds Gender Principle” in Kenya, Available at: (Accessed 18 December 2021).

National Gender and Equality Commission Act, 2011, Laws of Kenya.

Njogu, K., and Orchardson-Mazrui, E., “Gender inequality and women’s rights in the Great Lakes: Can culture contribute to women’s empowerment.” New York: UNICEF (2013).

Ogila, J., ‘DCJ Mwilu Forms Five-Judge Bench to Hear Maraga’s Parliament Dissolution Advice’ (The Standard) (Accessed 18 December 2021).

Osoro, J., ‘5 Judges Appointed to Hear Petitions on CJ Advise to Uhuru to Dissolve Parliament » Capital News’ (Capital News, 14 October 2020), Available at: (Accessed 18 December 2021).

Republic of Kenya, Sessional Paper No. 02 of 2019 on National Policy on Gender and Development, October 2019.

Republic of Kenya, National Policy for Prevention and Response to Gender Based Violence, November, 2014, 20Gender%20Based %20Violence.pdf (Accessed 18 December 2021).

News & Analysis

Former KCB Company Secretary Sues Over Unlawful Dismissal




Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land




Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.

Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:

“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”

On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.

The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.

The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.

At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.

The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.

As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.

Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.

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News & Analysis

Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1




The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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