KITUO CHA SHERIA BLOG

“This year, the COVID-19 pandemic poses an additional threat to refugees and displaced people, who are among the most vulnerable. My recent Policy Brief on COVID-19 and People on the Move called on governments to ensure that they are included in all response and recovery efforts”- UN Secretary General, António Guterres

As the world marks the World Refugee Day on 20^th June 2020, we need to be cognizant of how the COVID-19 pandemic has impacted refugees and asylum seekers who fall in the category of the marginalized and vulnerable more so those residing within our urban areas. It goes without saying that the novel Coronavirus pandemic has impacted everyone in the world- Kenyans and the refugee community alike. The pandemic has no discrimination. It knows no border, no barrier and no language.

Currently, there are close to 81,000 refugees living in Nairobi. Refugees residing in urban areas largely give up access to humanitarian assistance by multi-agencies that offer financial and material support in the refugee camps. Those residing in urban areas such as Nairobi, Mombasa, and Nakuru are required to be self-sustainable. Most refugees and asylum seekers choose to live in urban centers to access better economic opportunities and social services such as health and education for their families. Some have opened businesses while others have ventured into informal employment so as to sustain their families.

 In the wake of the pandemic, the Kenyan government in order to curb the spread of the virus enforced the dusk to dawn curfew. They also enforced the lockdown of Nairobi, Mombasa, Kilifi and Kwale counties as part of stringent measures to curb inter-counties community transmission of the virus.

The enforcement of the strict measures which restricted movement has had a huge impact as it restrained mobility affecting Kenyans and refugees alike- they are not able to pursue their livelihood.

It should be noted that in the course of any crisis or pandemic, there may be numerous violation of human rights including social and economic rights, civil and political rights. As a country we should not forget that these rights are fundamental and need to be respected across the spectrum regardless of the situation being experienced in the country.

Refugee rights also recognize that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis; are strictly necessary; based on scientific evidence and neither arbitrary nor discriminatory in application; of limited duration; respectful of human dignity; subject to review and proportionate to achieve the objective.

With the scale and severity of how the pandemic is spreading it is seen as a threat to public health and the government can justify the restriction on certain rights such as imposing the curfew, imposition of quarantine and isolation as well as limiting the freedom of movement. At the same time they pay careful attention to human rights.

Refugees and other persons displaced by conflict belong to the most marginalized and vulnerable members of society. They have had an extremely difficult time adjusting to changing times. Most urban refugees who live in informal settlements have limited access to water, sanitation systems and health facilities.

At the same time, careful attention to human rights such as non-discrimination and human rights principles such as transparency and respect for human dignity can foster an effective response amidst the turmoil and disruption that inevitably results in times of crisis and limit the harm that can come from the imposition of extreme measures that do not meet the above criteria.

The government should ensure that any actions taken or any restrictions imposed concerning COVID-19 are consistent with the forgoing advice from medical and public health officials; and are justified for health and safety reasons.

At the same time, the right to be free from discrimination can be limited under the law, for example, where health and safety risks are serious and would amount to undue hardship, or where actions that appear to be discriminatory can be shown to be reasonable and justifiable.

Some of the rights that may be violated in the midst of the pandemic may include;

RESPECT OF HUMAN DIGNITY

Since the declaration of the curfew by the President to slow down COVID-19 infections across Kenya; there have been reported incidences of lethal use of force by police officers and law enforcement officers. The weapons used under the guise of enforcing the curfew are whips, batons, teargas, and live bullets. Violence has been used to clear the streets, sometimes before onset of the dusk curfew. There have been reports of police harassing individuals and the use excessive force in order to contain the situation. We have had cases where at least 5 deaths have been reported- cases directly linked to the police in enforcing the curfew orders.

Article 28 states that every person has inherent dignity and the right to have that dignity respected and protected. The law enforcement officers should be aware that even in times of such directives the Constitution is supreme. While international human rights law does not prohibit restrictions on personal liberty in times of emergency, it never permits torture or cruel, inhuman or degrading treatment, and always requires any police or military use of force to be proportional, necessary and reasonable.

ACCESS TO SEEK ASYLUM DURING THE PANDEMIC

 The closure of the border entry points by the government as part of public health measures in order to contain the transnational spread of COVID-19; while making no exception to women, children and men fleeing threats to their lives and freedom contravenes international law principles of non-refoulement that prohibits countries from turning away people at a border and returning them in countries where their lives are in danger or where they are being persecuted.

The Kenyan government should find solutions that respect international human rights obligations such as right to seek asylum.  They can explore medical testing and screening and have quarantine facilities at the border but allow access to asylum as a means of protection for individuals seeking protection of the country.

ACCESS TO INFORMATION AND PARTICIPATION

Everybody has the right to be informed of the threat COVID-19 poses to their health, the measures to mitigate risks; and information about ongoing response efforts. The failure to guarantee this undermines the public health response and puts everyone’s health at risk.

A rights-respecting response to COVID-19 needs to ensure that accurate and up-to-date information about the virus, access to services, service disruptions, and other aspects of the response to the outbreak is readily available and accessible to all.

By:

Yunia Atieno, Advocate

Forced Migration Programme-Kituo Cha Sheria