KITUO CHA SHERIA BLOG

WHY REFOULMENT OF REFUGEES IS NEVER AN OPTION

Kenya has been home to thousands of refugees from neighbouring countries like Uganda during the dictatorial rule of Idi Amin, South Sudan, Rwanda, Burundi, Democratic Republic of Congo (DRC) and Somalia among others. Somali refugees started coming into Kenya in large numbers in the 1990’s. Due to the huge influx, the government of Kenya called on UNHCR to intervene and help manage the refugee situation in the country. In 2006 however, Parliament passed the Refugees Act which established The Department of Refugee Affairs which was mandated to slowly and eventually take over all refugee management matters from UNHCR.

The Constitution of Kenya under Article 29 guarantees every person a right to be in a secure place. Security in this instance refers to both physical and social security. In the recent past, Kenya passed a Security Law Amendment Act. This Act was challenged in court and some of the provisions therein were declared unconstitutional.

One of the issues addressed in this case was the aspect of refugees. It affected refugees in two ways: the aspect of the capping of numbers to 150,000 and the aspect of encampment of refugees. The issue on capping of numbers was held to be unconstitutional. The reason being that Kenya has international obligations to admit refugees under the 1951 UN Convention. Capping their numbers is unrealistic because we keep on receiving refugees every day. Furthermore other countries in Africa have not really been practicing this. The issue on encampment of refugees was held to be constitutional however rooms for exemptions were put into place. Exemptions would for example be because one needed to be in an urban area because of medical issues or education etc.

Kenya has recently had many attacks, the most recent one being the Garissa University attacks where we lost 147 lives. These attacks have often been linked to the large number of refugees that Kenya is hosting in Dadaab refugee camp.  These attacks have often been linked with the al-shabaab terror group from Somalia. There have been many cries that the refugees in Dadaab should be returned home to reduce these attacks.

NON-REFOULMENT

The principle of non refoulment is captured in the 1951 UN Convention in Article 33 subject to Article 2(5) and 2 (6) of the Constitution of Kenya and Section 18 of the Refugees Act (2006). It places an obligation on states not to return refugees back to their home countries where they are bound to face persecution on any ground that caused them to flee their country. This was also upheld in the judgment of Petition 19 and 115 of 2013 where Kituo Cha Sheria went to court.

This principle has attained a status of being customary law. In law it is a jus cogens and therefore can never be suspended through any treaty process. A customary principle normally applies to all states irrespective of their position on the same. This means that Kenya as a state does not have the luxury of suspending it and returning the refugees back to their country

Legally speaking Kenya cannot refoulm these refugees. The recent case of the Security Laws Amendment Act (2014) (SLAA) upheld this by stating that Kenya had obligations as a state to uphold this principle. Currently there has been no state in Africa that has managed to refoulm any refugees.

The convention is very categorical that an individual who is found to be in breach of the host country’s laws should face the law in that country. In this instance a refugee who is found to be in violation of any right for example participation in the terrorist activities. The law is that they should be tried in the Kenyan courts and if found guilty they should serve their sentence and then returned back to their country.

In the instance where a refugee is to be sent out of a country then the law gives a position. The position being that one has to be allowed at least enough time to apply for asylum in a third state. This therefore means that refugees cannot be allowed to go back to their country if the reason for them fleeing their country is still there.

However Kenya recently has entered into a tripartite agreement with Somalia. Some Somali citizens have been repatriated back to their home country Somalia. However it is important to note that this repatration has to be voluntary.

BALANCE OF SECURITY AND REFUGEES

Every state is under obligation to provide security to its citizens first. In Kenya our constitution provides for this in Article 29. However the government of Kenya should be able to appreciate the need for refugees to be protected also.

The encampment policy of refugees in my opinion has not fully contributed to insecurity. We should instead get mechanisms to cure the porous nature of our borders. There is need of striking a balance between obeying international obligations and that of protecting national interests. A proper analysis of refugee security dynamics may lead to the development of policies guaranteeing sustainable peace and security in the refugee camps and in the host state at large.

RECOMMENDATIONS

• Security agencies should establish a direct link between terrorism and the refugees who reside in the camps before pointing fingers.
•  Make provisions in the law for law abiding refugees who have been in Kenya for a certain period of time to acquire alternative status as a means of durable solution. E.g. permanent residence which does not necessarily have to lead to citizenship. The status may carry limitations with regards to political rights such as voting.
• Alternative to the encampment policy so as to enable refugees sustain themselves and stop relying on International Organizations for help. For example in neighboring Uganda refugees are given land to till and plant.
• Setting up of a database to monitor movement and location of refugees and asylum seekers like in Uganda.
• Amendments to the current Refugees Act that ensures the safety of Kenyan citizens. For example immediate registration on entry into Kenya and reporting to the DRA offices from time to time for monitoring purposes like it is done in Uganda.

Julie Kemunto

Forced Migration Programme-FMP

Kituo Cha Sheria.