International Refugee Law

Table of Contents

WEEK 2: DEVELOPMENT OF INTERNATIONAL REFUGEE LAW 2

John Kamiri (BLAW/2019/42057) and Loise Njoroge (BLAW/2019/41761) 2

WEEK 3: SOURCES OF REFUGEE LAW 13

Martin Mbugua Muriithi – Blaw/2018/35768 13

WEEK 5: THE REFUGEE ACT, NO. 13, 2006 25

Samuel Kivuva Simon BLAW/2018/37587 and Maurice Oyare BLAW/2019/42347 25

WEEK 6: REFUGEE STATUS DETERMINATION (RSD) 37

Lawi Wambare BLAW/2019/41968 and C. Nguata Nyururu BLAW/2019/42474 37

WEEK 8: RIGHTS AND DUTIES OF REFUGEES 50

Jeremy Karemeri BLAW/2019/45004 and Noah Kiplagat BLAW/2019/41786 50

WEEK 9: FUNDAMENTAL PRINCIPLES OF NON-REFOULEMENT 69

Collete Warigia BLAW/2019/42943 and Samson Munoru BLAW/2018/36624 69

WEEK 10: DURABLE SOLUTIONS & THE LEGAL CHALLENGES 81

James Mbugua:BLAW/2019/42677 and Atunga D. Abuga: BLAW/20141/69795 81

WEEK 11: NEXUS BETWEEN REFUGEE LAW AND HUMAN RIGHTS LAW 93

Meshak Mwangi- BLAW/2019/43578 and Patrick Githii- BLAW/2019/43393 93

WEEK 12: CASE LAW & ROLE OF COURTS REFUGEE PROTECTION 99

Benson Kipchirchir: BLAW/2019/42210 and Emmanuel Owino: BLAW/2019/42659 99

WEEK 14: REFUGEE MANAGEMENT, PRACTICE & POLICY 111

Oduwo Okello Ochieng Paul – BLAW/2019/42742 111

WEEK 15: ROLE OF ACTORS IN PROTECTING REFUGEES 118

Cynthia Atieno Barasa: BLAW/2019/42298 and Dennis M. Katiku: BLAW/113/00605 118

WEEK 2: DEVELOPMENT OF INTERNATIONAL REFUGEE LAW

John Kamiri (BLAW/2019/42057) and Loise Njoroge (BLAW/2019/41761)

INTRODUCTION

Throughout human history in every region of the world, society has provided asylum, refuge, sanctuary, and hospitality to weary frightened strangers, forcedly uprooted /displacement, from their homes to seek safety elsewhere.

The notion that a person who sought sanctuary in a holy place couldn’t be harmed without inviting divine retribution was familiar to the ancient Greeks and ancient Egyptians. The Jews had cities of refuge where persons who had committed manslaughter could seek asylum from revenge from the deceased’s relatives.

The first international co-ordination on refugee affairs was Fridtj of Nansen who was appointed to the newly created High Commissioner for Refugees created by the League of Nations’. Commission was set up in 1921 to assist people who fled the Russian Revolution of 1917 and the subsequent civil war (1917–1921)  

In 1923, the mandate of the Commission was expanded to include the Armenians who left Turkish Asia Minor in 1915 and 1923 due to a series of events now known as the Armenian Genocide. 

Over the next several years, the mandate was expanded to include Assyrians and Turkish refugees.

In all of these cases, a refugee was defined as a person in a group for which the League of Nations had approved a mandate, as opposed to a person to whom a general definition applied.

States have been granting protection to individuals and groups fleeing persecution for centuries; however, the modern refugee regime is largely the product of the second half of the twentieth century. Like international human rights law, modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it. Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries 

The Geneva Convention Related to the Status of Refugees is the main source of legal protections for refugees.

IRL provides a specific definition of refugee, safeguards the right to seek asylum, and protects against being forcibly returned to a country where one would face persecution (non-refoulement).

The UN High Commission for Refugees (UNHCR) is mandated by the UN General Assembly to provide international protection to refugees and seek permanent solutions to their plight.

The understanding of the term refugee emerged in western spheres after the 1st edict of Fontainebleau (1540) issued by the French King Francis the 1st at his palace in Fontainebleau hence the name, where he made it legal for the persecution of protestant Christians. These groups fleeing from horrific persecution in France through the edict which made it legal to strip them of their property, subject them to public humiliation and torture if they refused to convert to Catholicism, made their way across the English Channel to England where the first mention of the word refugee appeared in English. At the time it was understood to mean one seeking asylum.

Subsequent French kings intensified this persecution which led to the decimation of the French protestant population in France who fled across Europe until the French revolution gave them rights under the Revolutionary Declaration of the Rights of Man and of the Citizen (1789). At the time the concept of individual liberties was still a developing one and states were seen as the principal subject of international law.

It was after the political reformation of Europe and the recognition of sovereign states in the treaty of Westphalia (1648) that the ideological ground began to shift in Europe in recognition of individual freedoms guaranteed by sovereign states.

There were no international instruments that specifically conferred protection upon individuals as the state was understood to be responsible for the protection of its citizens. However, the conception of international law changed with the Bolshevik overthrow of the imperial government in Russia in which thousands of Russians found themselves without identification documentation after the leader of the revolution Stalin revoked their status as Russian citizens.

Continental Europe was seeing rapid changes in the political sphere and consequently many upheavals ensued which led to huge migration crisis as people fled for their safety. 

This leads us to the most significant period in the development of refugee law.

HISTORY IN INT’L REFUGEE LAW (WORLD WAR I)

The most significant developments in refugee law are closely tied to the two World Wars. After World War I the League of Nations commissioned the Norwegian explorer and humanitarian Fridtj of Nansen to assist in the repatriation of Russian and other prisoners of war as well as Russian refugees after the October Revolution.

He was appointed as the League’s High Commissioner for Russian Refugees in 1921 (he was subsequently put in charge of the Balkans and near East), earning him the Nobel Peace Prize in 1922; the League established the Nansen International Office for Refugees soon after his death in 1930. In 1938, a number of states (Belgium, Great Britain and Ireland, India, Denmark and Iceland, Spain, France, Norway, and the Netherlands) agreed on the Convention concerning the Status of Refugees coming from Germany.

During this period the emerging United Nations founded two agencies tasked with the relief of the European refugees – the United Nations Relief and Rehabilitation Administration (in 1943) and the International Refugee Organization (in 1947) – that preceded the Office of the United Nations High Commissioner for Refugees (established in 1950).Originally elected for a term of only three years it was tasked with the protection of refugees, the facilitation of their voluntary repatriation, ‘or their assimilation within new national communities. The plight of refugees during and in the aftermath of the Second World War was addressed in Article 14 of the 1948 Universal Declaration of Human Rights which includes a right to asylum (this was, however, not meant to be an individual right of a state. Rather, it confirmed the right of a state to grant asylum). 

The most decisive development was the adoption of the United Nations Convention relating to the Status of Refugees (commonly known as the Refugee Convention or the Geneva Convention on Refugees) on 28 July 1951. It has generally been described as ‘the most comprehensive legally binding international instrument’ in universal refugee law and its key provisions remain applicable until this very day. Its temporal scope, however, was explicitly restricted to World War II and the subsequent persecutions (the definition of a refugee refers to ‘events occurring before 1 January 1951’). In addition, states could opt to consider only Europeans as refugees in the sense of the Refugee Convention.

However, already at the time of the conclusion of the 1951 Refugee Convention the drafters acknowledged the need for a universal standard. This goal was achieved through the 1967 protocol to the Refugee Convention which eliminated the temporal and geographical limitations.

In the global arena many former colonies of European states were emerging as newly independent states through sometimes very violent uprisings against their colonial masters.

These uprisings greatly destabilized communities living within those countries forcing them to flee for their safety. This in turn gave rise to the recognition of provisions not included in both the 1951 convention relating to the status of refugees and 1967 protocol. 

These additions were introduced by the O.A.U in 1969 and the Latin American states mostly in South America through the Cartagena declaration on refugees 1984.

The additions reflected the geopolitical situation of both at the time and were geared toward the protection of individuals displaced in mass events due to the political uprisings and in South America’s case the protection of individuals displaced due to manmade disasters in the region. In the African experience many freedom fighters were viewed as subversive terrorist elements by the colonial powers and therefore fled and conducted their activities in other African states which had attained independence

These freedom fighters were viewed as political refugees and were welcomed in the free African states where they were granted asylum. Famous examples include ANC and Frelimo fighters and organizers who were housed in Tanzania and granted asylum there for their protection from apartheid governments in South Africa and then Rhodesia.

In order to assist peoples displaced both the African and Latin American groups included the recognition of mass migration events and sought to recognize the victims of such events by including provisions for their recognition in both instruments. These inclusions made it possible to appreciate the recognition of both individual and collective groups of people who could then be termed as refugees in the formal process marking a distinct departure from previous international instruments on the same. (51 & 67)

South American states were also experiencing serious political instability and therefore discussions began on the creation and implementation of a regional instrument specific to the plight of South Americans.

REGIONAL BODIES

There are regional bodies that gives history of International Refugee Law. They include:

United Nations Relief and Rehabilitation Administration (UNNRA).

International Refugee Organization (IRO)

United Nations High Commissioner for Refugees

UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION (UNNRA). 1943

It was created at a 44-nation conference at the White House on November 9, 1943. Its mission was to provide economic assistance to European nations after World War II and to repatriate and assist the refugees who would come under Allied control.

The organization was subject to the authority of the Supreme Headquarters of the Allied Expeditionary Forces (SHAEF) in Europe and was directed by three Americans during the four years of its existence. Its first director-general was Herbert Lehman, former governor of New York. 

UNRRA assisted in the repatriation of millions of refugees in 1945 and managed hundreds of displaced persons camps in Germany, Italy, and Austria during that year. It provided health and welfare assistance to the DPs, as well as vocational training and entertainment. It administered the work of 23 separate voluntary welfare agencies, including the Joint Distribution Committee, the Organization for Rehabilitation through Training (ORT), and the Hebrew Immigrant Aid Society (HIAS).

In late 1945, as the displaced persons camps were given greater autonomy, the voluntary agencies increasingly operated independently. UNRRA continued to serve as a major employer of displaced persons. The massive and protracted relief efforts caused the agency to run out of funds and in 1947 its tasks were taken over by a successor organization, the International Refugee Organization (IRO). The new agency inherited the care of 643,000 displaced persons in 1948. 

INTERNATIONAL REFUGEE ORGANIZATION (IRO) 1947

IRO is a specialized agency of the United Nations Beginning operations on July 1, 1947, the IRO took over the work of its principal predecessor organization, the United Nations Relief and Rehabilitation Administration. Among the services supplied by the IRO were the care and maintenance of refugees in camps, vocational training, orientation for resettlement, and an extensive tracing service to find lost relatives.

It also assumed the responsibilities for the legal protection and resettlement of refugees previously carried out by the Intergovernmental Committee on Refugees. It was succeeded by the Office of the United Nations High Commissioner for Refugees.

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (1950)

The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950 by the United Nations General Assembly and the organization was established as the successor to the International Refugee Organization (IRO; 1946-1952) by the United Nations (UN) General Assembly in 1951 to provide legal and political protection for refugees until they could acquire nationality in new countries of residence. International refugee assistance was first provided by the League of Nations in 1921 under the leadership of Fridtj of Nansen, who served as the League’s Commissioner for Refugees.

The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country. It also has a mandate to help stateless people. In more than six decades, the agency has helped tens of millions of people restart their lives. Today, a staff of some 7,685 people in more than 125 countries continues to help some 33.9 million persons.

 The UN refugee agency emerged in the wake of World War II to help Europeans displaced by that conflict. Optimistically, the Office of the United Nations High Commissioner for Refugees was established on December 14, 1950 by the United Nations General Assembly with a three-year mandate to complete its work and then disband. The following year, on July 28, the United Nations Convention relating to the Status of Refugees – the legal foundation of helping refugees and the basic statute guiding UNHCR’s work – was adopted.

By 1956 UNHCR was facing its first major emergency, the outpouring of refugees when Soviet forces crushed the Hungarian Revolution. Any expectation that UNHCR would become unnecessary has never resurfaced. In the 1960s, the decolonization of Africa produced the first of that continent’s numerous refugee crises needing UNHCR intervention. Over the following two decades, UNHCR had to help with displacement crises in Asia and Latin America. By the end of the century there were fresh refugee problems in Africa and, turning full circle, new waves of refugees in Europe from the series of wars in the Balkans.

The start of the 21st Century has seen UNHCR helping with major refugee crises in Africa, such as the Democratic Republic of the Congo and Somalia, and Asia, especially the 30-year-old Afghan refugee problem. At the same time, UNHCR has been asked to use its expertise to also help many internally displaced by conflict. Less visibly, it has expanded its role in helping stateless people, a largely overlooked group numbering millions of people in danger of being denied basic rights because they do not have any citizenship. In some parts of the world, such as Africa and Latin America, the original 1951 mandate has been strengthened by agreement on regional legal instruments.

In 1954, the new organization won the Nobel Peace Prize for its ground-breaking work in helping the refugees of Europe. Its mandate had just been extended until the end of the decade. More than a quarter century later, UNHCR received the 1981 award for what had become worldwide assistance to refugees, with the citation noting the political obstacles facing the organization. From only 34 staff members when UNHCR was founded, it now has more than 7,685 national and international members of staff, including 972 in UNHCR’s Geneva headquarters. The agency works in 126 countries, with staff based in 135 main locations such as regional and branch offices and 279 often remote sub-offices and field offices.

The budget has grown from US$300,000 in its first year to more than US$3.59 billion in 2012. There are more than 43 million uprooted people worldwide. UNHCR now deals with 33.9 million people of concern to UNHCR: 14.7 million internally displaced people, 10.5 million refugees, 3.1 million returnees, 3.5 million stateless people, more than 837,000 asylum seekers and more than 1.3 other persons of concern. An organization with a three-year mandate to solve the problem of refugees celebrated its 60th anniversary on 14 December 2010, aware that the humanitarian needs are unlikely to disappear.

DEVELOPMENT OF REFUGEE LAW IN KENYA 

Development of refugee law in Kenya has been marked more by security concerns than protection considerations.

Refugees have been and still are seen as a transient issue as well as a threat to national security.

However, there was a period after independence when refugees were welcomed in Kenya with open arms

The development of the law therefore can be traced through three distinct periods:

The golden age,

The rise of encampment policy, and

The balance of protection and national security

THE GOLDEN AGE

There was no refugee law to speak of until 1967. Although Kenya ratified the United Nations Convention Relating to the Status of Refugees on May 16, 1966, the independence constitution required a domestic law to make it applicable in Kenyan courts. This was done through the inclusion of Class M entry permits under the Immigration Act of 1967.

Despite the inclusion of the legal definition of a refugee, there was no information regarding rights. It appeared as though the law was only meant to regulate the entry and settlement of refugees, without providing the terms of their residence.

There were also no legal provisions on the principle of non-refoulement, right to work, or freedom of movement.

The law did not provide any durable solutions for dealing with refugees. This situation continued until the enactment of the Refugees Act of 2006.

Be that as it may, refugees in Kenya at the time had de facto freedom of movement as well as access to work. A good example is that of the Ugandans that fled the autocratic regime of Idi Amin. They were received well and most of them eventually integrated into Kenyan society.

RISE OF ENCAMPMENT POLICY

As civil wars erupted in Ethiopia, Sudan, and Somalia, the number of refugees coming to Kenya increased tenfold, from 20,000 to about 200,000. This massive influx had debilitating consequences that still haunt Kenya’s asylum system. The government of Kenya abandoned direct involvement with refugees and left this role to the UNHCR.

That is the time when Dadaab and Kakuma camps were set up primarily for Somalia and Uganda respectively.

There was also a significant shift in Kenyans’ attitudes toward refugees. Rather than being seen as people that needed assistance, refugees were now viewed as burdens to the economy. Kenya was going through the Structural Adjustment Programs (SAPs) under the aegis of the Bretton Woods institutions. These were tough economic times as unemployment soared and inflation was high. A majority of Kenyans viewed refugees with suspicion, as they saw them as competitors for the few jobs available in the market.

Refugees were also blamed for the rise in criminal activity. In the 1990s, there was a steep rise in small arms and light weapons circulating in the country, which was blamed on the increase of refugees and asylum-seekers accessing the country. This assumption, unsubstantiated by evidence, also contributed to the shift in Kenyans’ attitudes toward refugees and was the harbinger for the rise of xenophobia in the country.

THE BALANCE OF PROTECTION AND NATIONAL SECURITY

Until 2006, Kenya had no law exclusively addressing the status and rights of refugees. The Refugees Act of 2006, which became operational in 2007, defined refugee status, replete with exclusion and cessation clauses.

It also outlined the rights and duties of refugees and asylum seekers.

More importantly, it established institutions that would manage refugee affairs in the country. These include the Department of Refugee Affairs, the Refugee Affairs Committee, and the Refugee Affairs Board. The act provided refugees with the right to move and earn a living. It incorporated the provisions of relevant international conventions into the domestic legislative framework. Refugees could by right access work permits, seek and gain employment, or start a business.

Al-Shabab attacks in Kenya increased. This led the Kenyan government to close the border between Kenya and Somalia in 2007. This didn’t mean that Somali asylum-seekers could not access the country, as a large number of them did at the height of the drought in 2011, but it did mean that government officers at the border were withdrawn. These attacks continued unabated, leading the government to enact stricter encampment measures.

There had been no legal instrument that defined where refugees ought to reside. In 2014, the Dadaab and Kakuma refugee camps were legally recognized as refugee camps and all the other existing camps were closed down. Refugees were thus formally required to reside in the camps.

Despite this rule being in effect, there are still many refugees residing illegally in urban areas, living in a precarious situation in which they can be and often are arrested.

REFUGEES BILL OF 2019

Its aim is to provide for the recognition, protection and management of refugees, to give effect to the 1951 UN Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Meaning of refugee Sec 3 is same as that under section 3 of the Refugees Act 2006 but with additional of Asylum seekers 

In February 2019, the Government of Kenya ordered for the closure of Dadaab refugee camp within six months citing “national security” concerns. Amnesty International was deeply concerned by the constant threat of closure that Dadaab refugee camp faces and the disproportionate targeting of Somali asylum seekers in counter-terrorism response.

HOW UNHCR IS RUN AND STRUCTURED

The UN refugee agency is governed by the UN General Assembly and the Economic and Social Council (ECOSOC). The UNHCR Executive Committee approves the agency’s biennial programs and the corresponding budget. These are presented by the High Commissioner (currently António Guterres), who is appointed by the UN General Assembly.

The UN refugee agency’s mandate is defined by the 1950 UNHCR Statute. In 2003, the General Assembly extended the organization’s mandate “until the refugee problem is solved.” The High Commissioner reports annually to ECOSOC and the General Assembly on the work of UNHCR.

As head of the organization, the High Commissioner is responsible for the direction and control of UNHCR. He/she directs the work of UNHCR with the assistance of a Deputy High Commissioner and Assistant High Commissioners for Protection and Operations.

The agency has a national and international staff of more than 7,685 working in 126 countries.

Most UNHCR operations are in the field. The worldwide operation has become highly complex, ranging from recruitment of new staff and ensuring their security in dangerous situations to the procurement of everything from medical supplies and bulk food shipments to aircraft charters. Specific departments, mostly based in the Geneva headquarters, oversee key areas, such as operations, protection, external relations, human resources and finances. A number of regional bureau liaise between overseas offices and headquarters.

In the field, UNHCR’s core work is managed from a series of regional offices, branch offices, sub-offices and field offices. The High Commissioner’s representatives head operations in the countries where the agency works, while there are also a number of regional representatives.

REFERENCES

UNHCR website

Refugee Consortium of Kenya

WEEK 3: SOURCES OF REFUGEE LAW

Martin Mbugua Muriithi – Blaw/2018/35768

1948, Universal Declaration of Human Rights –Article. 14

The Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the United Nations on the 10th of December 1948. This was three years after World War II. During the war, it was evident that human rights were not universally accepted. According to Amnesty International UK, around 17 million people were exterminated during the war including 6 million Jews. As a result, concerted efforts were made by world states to help establish international peace. This resulted in the founding of the United Nations in June 1945. 

In 1948 (Amnesty International UK) records that Eleanor Roosevelt, the first lady of the United States (1933-1945) guided the gathering of 50 member states of the United Nations (UN) to come up with a list of human rights that everybody across the world should enjoy. As a result of the gathering, 30 rights and freedoms were formulated and listed. Over seventy years later the UDHR continues to act as a basis of International Human Rights Law. 

Article 14 of the UDHR states (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

The conditions for this article is persecution. (According to The United Nations Human Rights office of the High Commissioner a majority of the drafters of the UDHR came from states where Jews and the Roma were denied access. This eventually left them for dead in the hands of the Nazis.)

Roma- a people originating in South Asia living widely dispersed across Europe and North and South America and speaking a language (Romani) that is related to Hindi. (Oxford Languages)

In summary, the article states that “If we are at risk of harm we have the right to go to another country to seek protection.” As a source of Refugee Law, this article stipulates that any person can seek refuge in another country when he or she is at the risk of harm. Refugees are vulnerable during wars and other political instabilities. Therefore it is a right (Universally Declared) for any person to go to any country when he or she is at the risk of harm. 

1949, Geneva Convention relative to the Protection of Civilian Persons In time of war- Art. 44, 70

The Geneva Convention relative to the Protection of Civilian Persons In time of war (Also referred to as the Fourth Geneva Conventions) was Adopted, by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, 12 August 1949.

This Geneva Convention was the only one to deal with civilians during the war. The other three conventions touched on soldiers. The conventions are namely: 1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, (3) the Convention Relative to the Treatment of Prisoners of War.

As seen above the earlier conventions did not put civilians into consideration. However, some provisions in the Hague Conventions of 1899 and 1907 existed that stipulated laws and customs of war on land. Nevertheless, according to the International Committee of the Red Cross, the provisions proved insufficient during World War I because of the dangers originating from air warfare and of the problems relating to the treatment of civilians in enemy territory and occupied territories. Subsequently as elucidated above in World War II the absence of a convention for the protection of civilians in wartime proved disastrous. As a result, the Fourth Geneva Convention was adopted to protect civilians in wartime. 

Just a note: The Convention does not invalidate the provisions of the Hague Regulations of 1907 on the same subjects but is supplementary to them. (Article 154 Relation with the Hague Conventions)

Article 44 of the Fourth Geneva Convention states, “In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.”

De jure- means a state of affairs that is in accordance with law (i.e. that is officially sanctioned) or by right, rightfully. 

When a country of refuge is involved in a war with the country of its refugees, then the refugees become enemy aliens, since they are citizens of an enemy Power. According to a commentary on article 44 by the International Committee of The Red Cross their position, however, is a special one, for they are refugees who have no longer any connection with their State of origin and do not enjoy the assistance of a Protecting Power. On the other hand, they have not established any permanent connection with the country which has granted them asylum. Consequently, they do not enjoy the protection of any government. Article 44 deals with the refugees’ relations with the authorities of the country which receives them; Article 70 governs their position vis-à-vis their own country of origin when it becomes the Occupying Power. 

Article 70 states that “Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war. Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, except for offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace.”

This provision was formulated because in World War II Occupying Powers meted out punitive measures on persons for having belonged to a political party banned by the occupying authorities and for having expressed in the Press or broadcasts political opinions that conflicted with the occupant’s views.

Under Article 70 the Occupying Power is therefore legally entitled to exercise penal jurisdiction in the occupied country in respect of acts which occur during occupation, and in respect of such acts only. The only exception for this rule is when a protected person is guilty of breaches of the laws and customs of war of which the occupying authorities are entitled to arrest and prosecute him, irrespective of the date of the offence. For example, if the crimes committed by the protected person justified extradition in times of peace from the occupied states.  

Therefore under Article 70, it would be illegal for an Occupying Power to arrest, prosecute, convict, or deport any of its citizens who rank as refugees in the occupied territory. 

Protocol Additional to the Geneva Conventions of 12th August 1949, and Relating to the Protection of Victims of International Armed Conflicts

The Protocol Additional to the Geneva Conventions of 12th August 1949, and Relating to the Protection of Victims of International Armed Conflicts was adopted on 8th June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. 

Its entry into force was on 7th December 1979. 

Part V stipulates the protection of Civilian population.

Article 13-Protection of the Civilian Population 

Under this article civilian population and individual civilians should enjoy general protection against dangers arising from military operations. Additionally, the civilian population and individual citizens should not be the object of attacks. However, when civilians directly take part in the hostilities they will not be covered under this provision. 

Article 14- Protection of objects indispensable to the survival of the civilian population

This article provides that no objects that are deemed necessary for the survival of the civilian population shall be subject to attacks. For example, agricultural lands, livestock, and foodstuffs shall not be attacked. Starvation of civilians as a method of combat is prohibited. 

Article 18 – Relief societies and relief actions

Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion, and Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. The civilian population may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked.

If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

NOTE: Article 25 stipulates- If a state wishes to denounce the protocol the denunciation shall take effect six months after receipt of the instrument of denunciation. 

1951 UN Convention Relating to the Status of Refugees (12th July 1951)

The 1951 UN Convention Relating to the Status of Refugees has its roots in Article 14 of the Universal Declaration of Human Rights (UDHR). Article 14 of the UDHR recognizes the right of persons to seek asylum from persecution in other countries. The convention was adopted in 1951 and has since become the centerpiece for international refugee protection. However, it is not until 22cd April 1954 that the convention entered into force. Ever since its entry into force the convention has been amended once. The amendment happened in 1967 by way of a protocol. The amendment removed the geographical and temporal limitation of the convention. The limitation was based on a provision that covered only persons fleeing events occurring before 1 January 1951 and within Europe.

The 1951 Convention consolidates previous international instruments relating to refugees and provides the most comprehensive codification of the rights of refugees at the international level.

The convention endorses one definition of a refugee in Article 1 stating that a refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The UNHCR state that the Convention is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement. Convention provisions, for example, are to be applied without discrimination as to race, religion or country of origin. 

Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination. The Convention further stipulates that subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. 

Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum. Importantly, the Convention contains various safeguards against the expulsion of refugees. The principle of nonrefoulement is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.

Lastly, the Convention lays down basic minimum standards for the treatment of refugees, without prejudice to States granting more favourable treatment. Such rights include access to the courts, to primary education, to work, and the provision for documentation, including a refugee travel document in passport form.

The Convention does not however apply to all persons who might otherwise satisfy the definition of a refugee in Article 1. In particular, the Convention does not apply to those for whom there are serious reasons for considering that they have committed war crimes or crimes against humanity, serious non-political crimes, or are guilty of acts contrary to the purposes and principles of the United Nations. The Convention also does not apply to those refugees who benefit from the protection or assistance of a United Nations agency other than UNHCR, such as refugees from Palestine who fall under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Nor does the Convention apply to those refugees who have a status equivalent to nationals in their country of asylum.

1967 UN protocol relating to the status of refugees (12th July 1967)

The 1967 Protocol relating to the Status of Refugees is an international treaty. It is to be read alongside the 1951 Convention relating to the Status of Refugees (known as the Refugee Convention). As earlier elucidated the 1951 Convention relating to the status of refugees was amended by a 1967 protocol. After 1951, new refugee situations arose, and the new refugees did not fall within the scope of the Refugee Convention. This protection gap led governments to create the 1967 Protocol, because they considered it ‘desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention, irrespective of the dateline of 1 January 1951’

The 1967 protocol removed the Refugee Convention’s temporal and geographical restrictions so that the Convention applied universally. Article 1 of the Protocol says that countries that ratify it agree to abide by the Refugee Convention as well – even if they are not a party to it.

The effect of the Protocol means that the Refugee Convention now applies universally amongst those States which have adopted the Protocol. However, according to Andrew and Renata Kaldor Centre for International Refugee Law, the only exceptions are in Turkey, which expressly maintains the geographical restriction; Madagascar, which maintains the geographical restriction and has not adopted the Protocol; and Saint Kitts and Nevis, which has not adopted the Protocol.

UN Declaration of Territorial Asylum of 1967

The UNHCR state that the United Nations Declaration on Territorial Asylum, was unanimously adopted by the General Assembly in 1967. The declaration defines certain important principles intended to facilitate admission for asylum.

The first principle is that asylum granted by a State in the exercise of its sovereignty shall be respected by all other States. The act of granting asylum is peaceful and humanitarian and as such, it cannot be regarded as unfriendly by any other State.

The second principle covers situations where a State finds difficulty in granting or continuing to grant asylum. In such a case, states, individually or jointly or through the United Nations shall consider, in a spirit of international solidarity, appropriate measures to lighten the burden on that state.

1967 UN Resolutions/EXCOM

On November 22, 1967, the UN Security Council unanimously adopted Resolution 242, establishing the principles that were to guide the negotiations for an Arab-Israeli peace settlement. The Palestinians are not mentioned anywhere in Resolution 242. The resolution applied to “States in the area.” No internationally recognized, secure border has ever defined the area of the West Bank and Gaza Strip and nowhere does the resolution require that Palestinians be given any political rights or territory.

1969 OAU convention governing specific aspects of the refugee problems in Africa

The OAU Convention broadens the concept of the refugee enshrined in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. The UNHCR state that for Africa, the 1951 United Nations Convention relating to the Status of Refugees, its 1967 Protocol and the OAU Convention of 1969 must be regarded as forming a whole. It is a collective undertaking by the Member States of the OAU to receive and protect refugees in accordance with their respective national legislations

The OAU Convention is a regional complement to the 1951 United Nations Convention. It broadens the definition of a refugee and offers legal protection to a wider category of people in response to the growing refugee problem in the continent.

The OAU Convention has been recognized by the General Assembly and the international community. The people covered by it have received protection and material assistance from the international community so long as they remain in Africa. Once they are out of the continent, their protection is non-existent

Whereas, in the 1951 Convention and the 1967 Protocol the granting of asylum is left to the discretion of States, in the OAU Convention it is the obligation of Member States to “use their best endeavours consistent with their respective legislations to receive refugees and to secure their settlement”. (Article II, para. I).

According to UNHCR the spirit of the OAU Convention is to accept the principle that African refugees are essentially an African responsibility. However Africa is not able to handle the problem of the refugee estimated to be around 5 million. 

According to the 1969 OAU convention a refugee is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it. (Article 1, para. 1).

Additionally a refugee is also a person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. (Article I, para. 2).

The Refugee Act of 2006

The Refugee Act of 2006 is a Kenyan Law that regulates matters to do with refugees. Additionally, it also states how the refugee status of a person can be determined. 

According to Article 3 (1) (a) a refugee is a person who owing to a well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or subsection (b) not having a nationality and being outside the country of his former habitual residence, is unable or, owing to a well-founded fear of being persecuted for any of the aforesaid reasons is unwilling, to return to it.

Article 3(2) stipulates that a prima facie refugee is person owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

WEEK 5: THE REFUGEE ACT, NO. 13, 2006

Samuel Kivuva Simon BLAW/2018/37587 and Maurice Oyare BLAW/2019/42347

INTRODUCTION.

Development of refugee law in Kenya has been marked more by security concerns than protection considerations. Refugees have been and still are seen as a transient issue as well as a threat to national security. However, there was a period after independence when refugees were welcomed in Kenya with open arms. The development of the law therefore can be traced through three distinct periods: the golden age, the rise of encampment policy, and the balance of protection and national security. Currently the refugee law is seen as more of an instrument of security than protection.

The Golden Era: 1963-1990.

Kenya has been hosting refugees since the 1960s. At that time, the country hosted refugees from Uganda, Ethiopia, and Somalia, and the total population was no more than 5,000. The government of Kenya was fully in charge of refugee management in the country, and refugees could access work and move freely. This has led some observers to refer to this as the golden age for refugee management.

There was no refugee law to speak of until 1967. Although Kenya ratified the United Nations Convention Relating to the Status of Refugees on May 16, 1966, the independence constitution required a domestic law to make it applicable in Kenyan courts. This was done through the inclusion of Class M entry permits under the Immigration Act of 1967.

Despite the inclusion of the legal definition of a refugee, there was no information regarding rights. It appeared as though the law was only meant to regulate the entry and settlement of refugees, without providing the terms of their residence. There were also no legal provisions on the principle of non-refoulement, right to work, or freedom of movement. The law did not provide any durable solutions for dealing with refugees. This situation continued until the enactment of the Refugees Act of 2006.

Be that as it may, refugees in Kenya at the time had de facto freedom of movement as well as access to work. A good example is that of the Ugandans that fled the autocratic and kleptocratic regime of Idi Amin. They were received well and most of them eventually integrated into Kenyan society. Most Kenyans that went to school in the 1970s and 80s have memories of Ugandan teachers, further evidence that these refugees were allowed to work in formal sectors.

1990 – 2006, the need, the process and the enactment.

Since it became independent in 1963 to date, Kenya has been host to refugees fleeing from countries neighbouring Kenya as a result of civil war, political unrest and upheavals that at one time or another obtained in those countries such as Ethiopia, Somalia, Sudan, Uganda and countries in the Great lakes region (Zaire, Burundi, Rwanda). At its peak, during the early 1990s, Kenya was host to the largest refugee population in East and Central Africa when it stood at close to a half a million. Today the refugee population is down to about a quarter of a million due to the voluntary resettlement of some of the refugees and the resettlement of others to third countries ? usually in Europe, Australia and the United States. The refugees are today settled in two camps in Kenya ? Dadaab in North Eastern Province and Kakuma refugee camp in Rift Valley Province. This followed the closure of other camps in Mombasa, Malindi, Thika, Moyale and Mandera. 

Inspite of hosting large numbers of refugees over a long period of time, the Kenya Government had not developed very clear guidelines and policies on how to deal with the refugees in Kenya. Unlike its neighbouring countries like Ethiopia, Sudan, Uganda and Tanzania, Kenya neither had any specific legislation dealing with refugees nor a ministry or department of government to deal with refugee affairs. In general the situation was vague, haphazard, ad hoc and unplanned. In most cases the police, immigration department and the Ministry of Home Affairs were involved in issues dealing with the refugees with no clear definition of the role and functions of each of these departments. The only agency whose role appeared clear and consistent was the U.N.H.C.R. which suffered the agony of dealing with the bureaucratic red tape(bureaucracy) presented by these multiple government organs.

Given the country’s location in a conflict-prone area, neighboring countries like Somalia and South Sudan have experienced ongoing civil wars that have caused internal and external displacement of large segments of their population.  According to the United Nations High Commissioner for Refugees (UNHCR), there were a total of 625,250 refugees and asylum seekers in the country in 2014.This figure increased to 650,610 in 2015. The majority of these people (close to 70%) were Somali citizens, while persons from South Sudan made up around 20% of the asylum-seeking and refugee population. The remainder included Ethiopians, Congolese, and around 20,000 stateless persons. 

Internationally Kenya is a signatory to a number of treaties applicable to individuals seeking asylum and protection.  For instance, it acceded to the 1951 United Nations Convention Relating to the Status of Refugees on May 16, 1966, and its 1967 Protocol in 1981. Kenya is also a state party to the 1969 African Union (AU) (formerly known as the Organization of African Unity, OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, which it signed in September 1969 and ratified in June 1992.  In addition, Kenya acceded to the 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment in February 1997. Of particular relevance to refugee issues is a provision in the Convention on non-refoulement, which states that “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

However, Kenya only recently put in place a national legal framework governing refugee matters and assumed partial responsibility for the refugee status determination (RSD) process.  It did this when it took a step to implement its obligations under international law by enacting the Refugees Act in 2006, which took effect the following year, and its subsidiary legislation, the Refugees (Reception, Registration and Adjudication) Regulations, in 2009 (Refugees Regulations). Among other things, the Act established the Department of Refugee Affairs (DRA), whose responsibilities include receiving and processing applications for refugee status.  Prior to that, refugee matters were governed under the now repealed Immigration Act and Alien Restriction Act, and RSDs and other matters relating to refugee management were delegated to the UNHCR.  This practice continued long after 2006.  It was only in 2014 that the DRA assumed some RSD functions, mainly endorsement of RSD determinations made by the UNHCR and issuance of notifications of recognition to refugees that meet the required criteria under the Refugees Act. 

2006 – To date Key provisions of the Refugees Act, 2006

Definition

The Refugees Act recognizes two classes of refugees: statutory and prima facie refugees. The former category applies to a person who has “a well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion. “The latter relates to a person who, “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his country of origin or nationality is compelled to leave his place of habitual residence.”  Under the Act, asylum is “shelter and protection granted by the Government to persons qualifying for refugee status,” while an asylum seeker is “a person seeking refugee status.” 

The Minister of Interior and Coordination of National Government is empowered to declare a class of persons prima facie refugees and to amend or revoke such declaration.The most recent example of a demonstration of this authority came in June 2014 when, acting on humanitarian grounds, Interior Minister Joseph Ole Lenku declared as prima facie refugees South Sudanese persons fleeing the civil war in their country.  Kenya is said to have granted the same protection to persons from South and Central Somalia.

Disqualification, Cessation, Withdrawal, and Expulsion

Certain persons are disqualified from attaining refugee status, while persons who have been granted such status may lose it under some circumstances.  A person is ineligible for refugee status if the person

has committed a “crime against peace, a war crime, or a crime against humanity”;

has committed a serious nonpolitical crime in or outside of Kenya;

has committed acts “contrary to the purposes of the United Nations or the African Union”; or

holds dual citizenship and could seek protection in one of the countries of his citizenship, and therefore does not have a well-founded fear of persecution.

A person who has been granted refugee status may lose that status through a voluntary or involuntary change in circumstances.  For instance, if a person “voluntarily re-avails himself of the protection of his nationality,” voluntarily reacquires a lost citizenship or acquires a new citizenship, or voluntarily reestablishes himself in the country where he feared persecution, he would lose his refugee status. A person may also lose his refugee status as a result of changes to his circumstances independent of his own doing—for example, where the circumstances that formed the basis for the granting of status have “ceased to exist.”

The DRA may withdraw the refugee status of any person if it has “reasonable grounds for believing” that the person has ceased to be a refugee or should not have been recognized as such in the first place.  This may occur if the person was ineligible for the status or the status was granted “erroneously as a result of misrepresentation or concealment of facts that were material to the refugee status determination.”  In addition, the Act authorizes the DRA to withdraw the refugee status of any person if it has reasonable grounds to believe that the person is a danger to national security or to any community in the country.

The withdrawal of the refugee status of a person also results in the withdrawal of all derivative rights.  When a person is granted refugee status, members of his family (including a spouse, dependent child, or sibling under the age of eighteen, or dependent parent, grandparent, grandchild, or ward living in the refugee’s household) are also accorded the same rights.  If the person loses his refugee status, his family members also lose their status.  However, any family member who loses his derivative status is entitled to petition for protection independently.

In addition to withdrawing a person’s refugee status, the DRA may also expel any refugee or a member of his family if it deems it necessary “on the grounds of national security or public order.”

Right of Appeal

The Act establishes an Appeal Board chaired by an experienced legal professional, including as its members, persons with knowledge of or experience in matters relating to immigration, refugee law, and foreign affairs, and requires that the Board operate independently in the exercise of its functions.  Under the Act, asylum seekers and refugees are entitled to appeal any unfavorable decision of the DRA to the Board.  

Nonrefoulement and Voluntary Return

The Refugees Act prohibits refoulement, stating that “no person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to be subjected to any similar measure” if doing so would result in the persecution of the person or endanger his life, physical integrity, or liberty.

A program aimed at voluntarily repatriating Somali refugees has not had much success.  In 2013, Kenya, Somalia, and the UNHCR signed an agreement to repatriate Somali refugees in the country.  One of the provisions of the agreement requires that the repatriation be voluntary, stating that “the parties hereby reaffirm that the repatriation provided for in this Agreement of Somali refugees who have sought refuge in the Republic of Kenya shall take place in conformity with international law pertaining to voluntary repatriation.”However, a 2014 survey found that only 2.9% of Somali refugees in the Dadaab complex had expressed interest in returning to Somalia within two years. 

Recent developments indicate that the Kenyan government has sought (more than once) to forcibly repatriate Somali refugees and asylum seekers to Somalia in possible violation of the Act and its agreement with Somalia and the UNHCR (for more on this issue, see Part IV, below). 

The Refugee Status Determination

The first step in the RSD process is registration.  The Act and its subsidiary legislation require that anyone who wishes to remain in Kenya as a refugee must appear before the DRA and petition for recognition as such.  The legality of the manner in which the person entered Kenya is immaterial to the eligibility to petition for refugee status.  At this time, when the UNHCR is in the process of transferring its RSD function to the Kenya government, there are two parallel registration systems in place, one operated by the DRA and another run by the UNHCR. Once registered, the applicant is given an “asylum seeker pass” (issued by the DRA), an “asylum seeker certificate” (issued by the UNHCR), and an interview appointment.

Initial screening is done through a registration interview.  The applicant is required to appear in person with his family members, if any. At the time of the registration interview, the applicant is asked to provide basic information (including biographical information) and submit all relevant supporting documents. The applicant and his family members, if any, are also required to submit to fingerprinting (which is checked against a national database) and photographing.  The interview is used to screen applicants for the purpose of identifying vulnerable persons eligible for accelerated processing , and to determine whether they meet general eligibility requirements for refugee protection.

The registration process is followed by the RSD process, which can be categorized into two classes: determinations involving prima facie refugees and regular process.

Prima Facie Refugees

A person who is a member of a group entitled to this refugee status is accorded such status once he has been registered and his origin verified (no information was located with regard to how the verification process is handled) without the need to go through “a claim interview or further evidentiary or other requirements. “If there is any indication that an applicant is possibly excludable under the applicable laws or may not qualify for refugee status for other reasons, the person is referred to the regular RSD process.

As noted above, Kenya has accorded this status to claimants from South Sudan and South and Central Somalia.

Regular RSD Process

Following the completion of the registration process, an applicant is interviewed by an RSD officer on the date set at the time of registration.  The waiting period for interviews appears to vary from six months to two years. The law requires the DRA to set up “a fair and transparent systems for the scheduling of refugee status determination interviews.” Kenya gives priority for “accelerated processing” to certain classes of applicants, including unaccompanied minors and survivors of gender-based violence, persons with medical issues, and persons awaiting deportation orders.

The burden of proving eligibility for refugee status lies with the applicant.  The Refugees Regulations provide that the applicant has the duty to establish that he meets all the requirements for refugee status. An applicant may present documentary evidence and/or witnesses in support of his claim.  Whenever documentary evidence is not available, “the credible testimony of an asylum seeker in consideration of conditions in the country of origin may suffice to establish eligibility for refugee status.” During the RSD interview, the applicant may “present his refugee claims in person . . . or be represented at his own cost by a legal representative.” 

The interview phase is followed by an assessment, decision-making, and review process.  Following the interview, UNHCR and DRA caseworkers “evaluate evidence gathered in the interview, undertake any further research, conduct legal analysis and take other necessary steps to make an assessment of the applicant’s claim. “They then formulate “a recommendation for a decision to grant or deny the claim.”  This is evaluated by a reviewer who verifies the work done by the interviewer and makes recommendations, including recalling of the applicant for an additional interview.  Once this process is completed to the satisfaction of the reviewer, the matter is then referred to the DRA, where the final decision is made and notification is sent to the applicant.

THE EVOLVEMENT OF GOVERNMENT POLICY ON REFUGEES UPTO 2006 

The integration policy 

The government policy on refugees has evolved through two stages. The first stage was the integration policy used between 1963 and 1991, because of the low number of refugees in the country. Most of these refugees were from Uganda and some of them had relatives in Kenya, making it easy to integrate them into Kenyan society. The Government played a direct role in using local integration and self-sufficiency for incoming refugees. This policy enabled refugees to settle in urban centres rather than in camps. This was because the number of refugees was as low as just 20,000.

Between 1963 and 1993, Kenya did not adequately implement international treaties that related to refugees. It used the Aliens Restriction Act of 1993 and the Immigration Act of 1967 to protect refugees and asylum seekers in Kenya. This deficiency was evident in the application of the existing laws. These laws were applied exclusively for immigration matters relating to non-citizens and without regard to the protection needs of those involved. However, they did not incorporate the terms of the Refugee Convention and its Protocol. For instance, the Aliens Restriction Act was enacted to govern non-citizens and” aliens”, including refugees, in direct response to the migration of Uganda refugees during the regimes of Idi Amin and Obote 

The encampment policy

This forms the second stage in the evolution of the refugee regime. Kenya’s encampment policy started around 1991 following the influx of refugees from Somalia and Sudan in 1991. It grudgingly accepted the refugees from neighbouring countries on condition that they were settled in the distant refugee camps. This indicates that the encampment system took root in Kenya following the influx of refugees in 1991.

Following the movement of refugees from Ethiopia, Sudan, and Somalia, the number of refugees increased to about 200,000. It is important to note that unlike the periods of entry from Sudan and Somalia, the refugees from Ethiopia entered Kenya following the civil war between 1974- 1991.61 The UNHCR was left to cater for the refugees in the camps that were set up at Dadaab in Garissa County and Kakuma in Turkana County. The Government’s change of its position ended the integration and started the encampment policy. This new policy perceived refugees as transitory and as a result the lasting solution was repatriation. The policy required the settlement of refugees in camps where their movements were controlled. A refugee was not at liberty to leave a camp unless there was a valid reason to do so.

The enactment of the Refugee Act of 2006 embraced the encampment policy. In its definition of refugee status, it provides for both statutory and prima facie refugees. It establishes institutions to manage refugee affairs in the country, like the Department of Refugee Affairs and the Refugee Affairs Committee. Although the Refugee Act provides for the rights to movement and work, the application of the encampment policy has changed the perception that Kenyans have about refugees. They view refugees as a security threat and as persons who take their jobs. Although the Refugee Act has various rights that refugees enjoy, it is a daunting task to enjoy them, due to the policy.

Amendments and future of the Act.

The Refugees Act of 2006 is currently undergoing review. Gaps in refugee reception, registration, residence, and durable solutions have been identified. A team of technical experts has been set up to draft a legislative proposal to present to parliament. There is still concern among many legislators that refugees cause insecurity. Therefore, a lot of advocacy needs to be done to educate these legislators on the rationale behind the refugee regulatory framework, as well as to offer them the opportunity to interact with the refugees themselves. Without this advocacy, Kenyan leaders’ attitudes toward refugees may not change and we may continue to witness the securitization of the Kenyan asylum space.

The refugee Bill of 2019.

This bill seeks to bridge the gaps aforementioned in the foregoing discussion concerning Refugees Act,2006.

The principal object of the Bill is to provide for the recognition, protection and management of refugees, to give effect to the 1951 United Nations Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees and the 1969 OAU Convention Governing the

Specific Aspects of Refugee Problems in Africa.

The Refugee Bill 2019 was gazetted through the Kenya Gazette Supplement No 126 (National Assembly Bills No 62). This is the first key step in reintroducing the Bill in Parliament following the President’s failure to assent into law Refugee Act 2017. The Bill was tabled for the first reading as a Government Bill when Parliament resumed from recess in the month of September 2019 and as at january 2021, the Bill is yet to be assented by the president and officially published by the government printer.

Some highlights on the Refugees Bill 2019  

Clause 4(1)(a) provides for the Exclusion and disqualification from refugee status where it proposes exclusion and disqualification on commission of a crime against peace, a war crime or a crime against humanity as defined in the International Crimes Act. We propose that reference of the International Crimes Act does not adequately cover other similar crimes not provided under the said Act but covered in the Geneva Conventions hence we propose the definition under any international instrument to which Kenya has ratified.   

Administrative institutions.   

Clause 7(2)(c) provides for the functions of the Department of Refugee Services, where it states that “to handle all operational aspects of protection and assistance of refugees”. Amnesty International, however, proposes that the clause be amended to include asylum seekers given the recommendation to remove asylum seekers from the definition of refugees. This recommendation also applies to the functions of the Commissioner for Refugee Affairs to include asylum seekers and refugees separately.   

Clause 8(2) provides for the functions of the Commissioner for Refugee Affairs, Clause 8(2)(u) provides that the “co-ordination of all services and activities provided to refugees and asylum seekers by implementing agencies”. Amnesty proposes that the Commissioner for Refugees co-operate with County Governments for services that have been devolved to counties as per the Fourth Schedule 

Clause 11(1) provides for the establishment of the Refugee Status Appeals Committee. Clause 11(2) provides for the composition of the RSAC which Amnesty presents very deep concerns about. Amnesty International believes that this Bill should replace the Refugee Status Appeals Committee with a Refugee Status Appeals Tribunal. Tribunals in Kenya are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions and supplement the ordinary courts in the administration of justice. Tribunals are equally subject to the supervision of the High Court.   

Article 238(2) of the Constitution requires that national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms.   

Clause 19(3) requires the Cabinet Secretary to act in accordance with due process of the law before ordering the for the expulsion of any refugee. 

Freedom of movement

Clause 31 proposes the requirement to reside in a designated area made by the Commissioner. Clause 31(2) creates an offence of failing to reside in a designated area. Article 31(1) provides that every person has the right to freedom of movement. Article 39 of the Constitution ought to be read together with Article 26 of the 1951 Refugee Convention in order to give effect the rights of refugees. Article 26 provides thus; “Each contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.  

Under Article 39 of the Constitution, it makes a clear distinction between a person and a citizen. Freedom of movement under the Constitution relates to everyone, but the right to enter, remain and reside anywhere in Kenya is accorded only to citizens hence the State may impose reasonable condition upon the right to enter, remain in and reside anywhere in Kenya upon non-citizens. Amnesty draws two conclusions from Article 39 of the Constitution. First, although the right under Article 39(3) is limited to citizens, it does not expressly limit the right of refugees to move within Kenya guaranteed under Article 39(1). Second, it does not expressly recognize the right of refugees to reside anywhere Kenya but more important the Constitution does not prohibit refugees from residing anywhere in Kenya.  

Confidentiality and data protection  

Amnesty is deeply concerned that this Bill has dropped the confidentiality clause as was the case in Refugees Act 2006. Article 31 of the Constitution provides that every person has the right to privacy, which includes refugees. We propose that a Clause be inserted to provide for confidentiality and data protection.   

Refugees and asylum seekers are persons at risk owing to the circumstances in their home countries and as such the protection of their data is of key importance to their safety and protection.   

Amnesty proposes that the confidentiality and data protection clauses adhere to the internationally accepted principles of data protection. We further propose, in light of the Data Protection Bill, that the data collected, processed and stored by operation of this Act be in accordance with the provisions of the Kenyan data protection law. As to the penalties, we propose that the penalties in the data protection law in force be applied in the Act. 

BIBLIOGRAPHY

The refugee Act of 2006

The Refugee Bill of 2019.

www.unhcr.org

WEEK 6: REFUGEE STATUS DETERMINATION (RSD)

Lawi Wambare BLAW/2019/41968 and C. Nguata Nyururu BLAW/2019/42474

INTRODUCTION

States have the primary responsibility to conduct RSD, however, UNHCR may conduct RSD under its mandate when a state is not a party to the 1951 Refugee Convention and/or does not have a fair and efficient national asylum procedure in place.

To strengthen the fairness, efficiency, adaptability, integrity and quality of RSD procedures and decision-making worldwide, UNHCR also develops and delivers specialized RSD training for UNHCR and government RSD staff and others involved in the asylum process, and supports the development, and implementation of quality assurance initiatives, at the country and regional level.

Definition of terms 

Asylum; means shelter and protection granted by the Government to persons qualifying for refugee status in accordance with the provisions of the Refugees Act and in accordance with International Conventions relating to refugee matters.

Asylum seeker; means a person seeking refugee status. 

Refugee;  is  a  person owing to a well-founded fear of being persecuted for reasons of race, religion,  sex,  nationality,  membership  of  a  particular  social  group  or  political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or not having a nationality and being outside the country of his former habitual residence, is unable or, owing to a well-founded fear of being persecuted for any of the aforesaid reasons is unwilling, to return to it.

Refugee Status Determination; (RSD) is the process of determining whether a person who has applied for asylum meets the definition of a refugee as provided in the 2006 Refugee Act of Kenya.

RSD is the legal or administrative process by which governments or UNHCR determine whether a person seeking international protection is considered a refugee under international, regional or national law. RSD is often a vital process in helping refugees realize their rights under international law.

HISTORICAL DEVELOPMENT 

Prior to 1991 Kenya applied an ad hoc administrative refugee status determination system to recognize refugees.

This process lacked Kenyan legislation to regulate the influx of refugees. The people seeking asylum were interviewed by a team of representatives from the immigration department, ministry of home affairs and UNHCR observers. This committee dealt with individual cases and applied the refugee convention definition disregarding the provisions of the OAU thus granting the asylum seekers a class M entry permit

The conflict in the neighboring countries of Somalia, Uganda and Sudan saw an increase in the number of refugees in Kenya grow exponentially. In 1990 Kenya had only 14,400 refugees, this number grew to 120,000 in 1991and in 1992 it had doubled to 401,000. This large number overburdened the eligibility committee, the Kenyan government therefore asked the UNHCR to set up refugee camps which led to total take over by the international agency the matters relating to refugee status determination in the country. This approach eroded the gains made by the Kenyan government in terms of refugee control as they were allowed to integrate and enjoy the benefits of work, education and even freedom of movement.

1.1 RSD Process in Kenya

Refugee Status Determination (RSD) is the process of determining whether a person who has applied for asylum meets the definition of a refugee as provided in the 2006 Refugee Act of Kenya.

The RSD process in Kenya begins when an appointed officer receives an asylum seeker who entered Kenya, whether lawfully or otherwise, and then directing him to the nearest reception center. If such an asylum seeker wishes to remain within Kenya as a refugee, he will be required to present himself before a registration officer and apply to be recognized as a refugee within 30 days of his entry into Kenya. Any person who fails to do so commits an offence and shall be liable on conviction to a fine not exceeding KES 20,000 or to imprisonment for a term not exceeding six months, or to both.

In Rada Haile & Another v R (2012), the applicants did not immediately upon their entry or within thirty days after entry into Kenya make their intention known by an Immigration Officer at their point of entry. Having therefore pleaded guilty to the charge of being present in Kenya unlawfully, the applicants were properly convicted and fined a sum of KES 20,000. They had applied to the High Court for revision of both their conviction and sentence. The prosecution was silent on when the applicants had entered Kenya. Judge James Aaron Makau set them free and ordered that they be released to the UNHCR and/or the Department of Refugee Affairs and were to remain in Kenya for 90 days to enable them make their intention to remain in Kenya in accordance with the law.

The registration officer then fills in the asylum seeker’s information in a registration form (Form 1 set out in the Schedule), completed in triplicates; before issuing him with a pass set out in Form 2 in the Schedule. 

The registration officer verbally notifies the asylum seeker of the conditions of the pass and the requirement of appearing on the return date specified on the pass. The pass – signed by both the registration officer and the asylum seeker and bearing an official stamp of the Refugee Department is valid for one year from the date of issuance, or until a final determination of the asylum application, whichever comes first.

The asylum application is then forwarded to the Commissioner who is required to make a determination within 90 days of it being referred to him. To do so, the Commissioner may make such inquiries or investigations into the country of origin information as he thinks necessary and may even require an asylum seeker to appear before him for an interview.

The Commissioner may withdraw the pass if, in the event of his inquiries or investigations, determines that the applicant no longer qualifies for recognition as a refugee or is a combatant. Failure to comply with any condition specified in the pass, without just cause, may also constitute ground for its withdrawal.

If the Commissioner is satisfied that the asylum seeker is genuine, he either personally or through the Committee, informs him of the RSD center where he shall present himself for determination of his asylum application. He then forwards the asylum application from the registration center to the appropriate RSD center.

On presenting himself at the RSD facility, the asylum seeker is interviewed by an RSD officer.It is incumbent upon the Commissioner to ensure that the facilities used for the RSD procedures preserve the right of asylum seekers to confidentiality and that the rooms used to conduct interviews allow asylum seekers to communicate with an appointed officer in private. He is also responsible for putting the mechanism used in conducting such interviews.

At the RSD interview, the asylum seeker may:

present his refugee claims in person; or

be represented at his own cost by a legal representative.

Those who have representatives are required to sign an authorization form (Form 5 set out in the Schedule) indicating the person authorized to act as their legal representative.

The requirements and manner in which the RSD hearing is to be conducted are outlined from Sec 18 to 30 (the Adjudication Process) of the Refugees Regulations, 2009. That said, the onus of establishing whether an asylum seeker is indeed a refugee, as defined in section 3 of the Refugee Act, lies with him. Even so, in the absence of documentary evidence, the credible testimony of an asylum seeker in consideration of conditions in the country of origin may suffice to establish eligibility for refugee status.

At the conclusion of the initial interview, the RSD officer shall advise the asylum seeker of the date and time to return to receive the decision on his application.

RSD officers are required to determine the eligibility of an asylum seeker, for the purposes of granting him refugee status, on a case by case basis, taking into account the specific facts of the case and conditions in the country of origin. In making a determination on eligibility, an RSD officer may:

request further information or clarification from the asylum seeker and/or;

consult with the UNHCR. 

An asylum seeker whose claim for asylum has given rise to an exclusion examination shall be informed of the exclusion examination and be given an opportunity to respond. Nevertheless, such a person retains the right to appeal the RSD officer’s decision to the Refugee Appeal Board.

After completing the RSD interview, the RSD officer is required to submit a written recommendation to the Commissioner who then makes a decision based on the recommendations within 90 days. The Commissioner’s decision can be either a:

rejection or;

approval of an application for refugee status.

In both instances, the Commissioner is required to notify the asylum seeker of his decision, in writing, within 14 days of the determination, giving reasons if the application is rejected. An asylum seeker granted refugee status is issued with an identity document.

A person aggrieved by the Commissioner’s decision may within 30 days of receiving it lodge an appeal with the Refugee Appeal Board. The Appeal Board may then either choose to either:

refer the matter to the Commissioner for further investigation and advice or;

make such further inquiry or investigation into the matter as it deems necessary.

Acting with independence in the exercise of its functions under the Refugee Act 2006, the Appeal Board may reach either one of two decisions:

confirm or;

set aside the Commissioner’s decision.

Either way, the Appeal Board shall then cause the appellant concerned to be notified of its decision in the matter in writing. Any person who is aggrieved by the decision of the Appeal Board may within 21 days appeal to the High Court.

1.2 Disqualification of refugee status

The refugee Act  provides that a person shall not be a refugee for the purposes of this Act if such person;

has committed a crime against peace, a war crime, or a crime against humanity as defined in any international instrument to which Kenya is a party and which has been drawn up to make provision in respect of such crimes;

has committed a serious non-political crime outside Kenya prior to the person’s arrival and admission to Kenya as a refugee;

 has committed a serious non-political crime inside Kenya after the persons arrival and admission into Kenya as a refugee;

 has been guilty of acts contrary to the purposes and principles of the United Nations or the African Union; 

Having more than one nationality, had not availed himself of the protection of one of the countries of which the person is a national and has no valid reason, based on well-founded fear of persecution.

1.3 Cessation of refugee status

The Refugee act provides that; a person shall cease to be a refugee for the purposes of this Act if that person;

Voluntarily re-avails himself of the protection of the country of his nationality

Having lost his nationality, voluntarily re-acquires it.

 Acquires the nationality of another country and enjoys the protection of the country of his new nationality

Voluntarily re-establishes himself in the country which he left or outside which he remained owing to fear of persecution

Can no longer, because circumstances in connection with which he was recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality

 Has committed a serious non-political crime outside Kenya prior to his admission to Kenya as a refugee

Having lost his nationality, continues to refuse to return to the country of his former habitual residence.

1.4 The Appeal process

Any person aggrieved by a decision of the Commissioner under this Act may, within thirty days of receiving the decision, appeal to the Appeal Board against the decision. 

In any appeal under this Act, the Appeal Board may confirm or set aside the decision of the Commissioner and shall cause the appellant concerned to be notified of its decision in the matter in writing: 

Provided that, before reaching a decision on any such appeal, the Appeal Board may either— 

refer the matter to the Commissioner for further investigation and advice; or 

make such further inquiry or investigation into the matter as it deems necessary. 

Any person who is aggrieved by the decision of the Appeal Board may within twenty-one days appeal to the High Court. 

1.4.1 The role of the Court 

Under the Kenyan Refugees Act of 2006, asylum seekers in Kenya have to apply to the Commissioner for Refugee Affairs (the Commissioner) for first-instance consideration of their asylum claim. If they are dissatisfied with the decision of the Commissioner, they can appeal to the Refugee Appeals Board (the Board) which is a statutory body established by the Refugees Act to review the decisions of the Commissioner. Should they be dissatisfied by the decision of the Board they then have access to the High Court of Kenya. In theory, there should be a smooth progression from one institution to the next, with the High Court at the apex.

The courts have a huge rule to play to safeguard the rule of law and ensure that the refugee’s rights are protected. A case in point is where the Kenyan court mandated the country to review its options e.g.  Constitutional Petition 227 of 2016 on Daadab refugee camp The Kenyan government made the decision to close the camp based on the assertion that it was a breeding ground for terrorists. The High Court in Nairobi overturned a government directive to close the camp and disband the country’s department of refugee affairs.

In analysing the role of the courts, we will look at a sample of decided cases in this regard.  Judges and lawyers have important role to play in ensuring that all persons, including refugees and migrants, are treated as equal before the law and receive equal protection of the law without discrimination. The courts must ensure that fair and legal process is respected in any proceeding or other procedure that could affect the rights or status of a refugee.

Determination of a person’s entitlement to international protection must guarantee and respect safeguards of procedural fairness and be subject to an effective appeal before, or other substantive review by, a competent, independent and impartial judicial authority. 

On appeal or review, courts must not be limited to assessing only whether the appropriate procedures were legally followed. The judge must be enabled to examine fully the merits of the case, including the determination of status, and to make any order the judge deems necessary to ensure international protection of an individual entitled to it, or to otherwise remedy aspects of the decision found to have been made in error.

 Rada Haile & Abel Burhamu V. Republic. Refugees and migrants who allege they have been victims of crimes, whomever the perpetrator, also have the right to equal access to justice and equal treatment in the process of investigation and prosecution of such crimes, as well as in any procedures for compensation or other forms of reparation. 

Whenever a decision in relation to a refugee or migrant is entrusted to a judicial body, the body must meet international standards of judicial competence, independence and impartiality.

Judges and lawyers must ensure equal treatment, equal protection of the law, and equality before the law, without discrimination, in accordance with international standards. Consistent with the principle of non-discrimination, the rights of those at heightened risk of discrimination or other human rights violations and abuses must be ensure at all times, including but not limited to: persons with disabilities; women; children; trafficked persons; victims of torture and other such abuses; members of national, ethnic, religious or linguistic minorities; indigenous persons; stateless persons; persons subject to discrimination or violence on the basis of their actual or imputed sexual orientation or gender identity.

Kenya National Commission on Human Rights & another v Attorney General & 3 others 

This petition brings into sharp focus Kenya’s obligations under international law, international and regional conventions, the Refugee Act and the application of the Bill of Rights to persons enjoying refugee status within the Republic of Kenya and the circumstances under which refugee status can legally cease to exist.

Briefly, the facts giving rise to this petition are that on 6th May 2016 the 4th Respondent issued a directive by way of press release entitled “Government Statement on Refugees and Closure of Camps” whose details are, inter alia that “owing to national security, hosting of refugees has come to an end and that the Department of Refugee Affairs (DRA) has been disbanded and that the Government is working on mechanism for closure of the two refugee camps (Kakuma and Daadab) within the shortest time possible.”

It was held that the declaration that the decision of the Government of Kenya to collectively repatriate all refugees in Daadab Refugee Camp to the frontiers of their country of origin against their will violates the principle on non-refoulement as expressed in Article 33 of the 1951 UN Convention relating to the status of Refugees as well as section 18 of the Refuge Act 2006.

Kituo Cha Sheria & Others vs The A. G.

The Government of Kenya had decided to stop reception, registration and close down all registration centres in urban areas with immediate effect. All asylum seekers/refugees will be hosted at the refugee camps. All asylum seekers and refugees from Somalia should report to Daadab refugee camps while asylum seekers from other countries should report to Kakuma refugee camp. UNHCR and other partners serving refugees were asked to stop providing direct services to asylum seekers and refugees in urban areas and transfer the same services to the refugee camps.

The judgement on refugee repatriation that Kituo cha Sheria played in quashing the ejection of Somali refugees from Kenya is still being felt (Kituo and 7 others had filed a petition to block the directive by the government to have all the refugees decamped to Kakuma and Daadab camps) and AU lauds the judiciary for the judgment delivered on 26 July 2019 in favour of urban refugees. Justice Majanja termed such evictions as unconstitutional.

 Abdi Kaarshe Mohammed & 4 Others V. R

The five individuals, all from Somalia, had pleaded guilty to charges of being unlawfully present in Kenya and being in possession of scanned Kenyan national identification cards which no proper account was given they were sentenced to serve up to one year in prison. 

Taking in to consideration the evidence presented before him, Judge at the High Court of Bungoma, declared that it’s clear that they cannot be said to be statutory refugees as it is not claimed that their well-founded fear of persecution is based on race, religion, sex nationality or their membership of a particular social group or political ideology. I am [however] satisfied that the prisoners are prima facie Refugees under section 3(2) of refugees Act, 2006. The prisoners seem to have been asylum seekers at the time of arrest, prosecution and conviction.

1.5 Refugee identification documents

Registration and documentation facilitate individuals, families and other groups of refugee’s access to rights, services and assistance they need. Registration is also the primary source of information to know more about the persons of concern: who and where they are, what their skills/profiles are and what their specific needs are. Registration enables UNHCR, its partners and the Government of Kenya to identify persons in need of special assistance and to respond to their need in a timely manner.

Once registration has been done the refugees can have access to the following identification documents;

Identity document

Pursuant to section 32 a refugee shall have an Identity document which shall contain the following information;

Name of the holder of the document

Sex of the document holder

Date of birth

Country of origin of the holder photograph of the holder

 Name of the issuing authority

Individual reference number

Date of issuance 

Date of expiry in the case of an asylum seeker pass

Signature of the authorizing officer.

Refugee identity card

After grant of refugee status, a refugee shall be issued with a refugee identity card or with a refugee identification pass if the refugee has not attained the age of eighteen years.The regulations further provide that the refugee identity card and refugee identification pass issued to a refugee under these Regulations shall be proof of the bearer’s legal presence in Kenya.

Convention Travel Document

A refugee may apply to the Commissioner for a convention travel document in Form 8 set out in the Schedule and shall submit the following documents in support of the application;

A copy of his refugee identity card or refugee identification pass

Two recent colour passport photographs

The reason for travel

Any other relevant document.

Some of the reasons why refugee may apply to be issued with a convention travel document include; resettlement, education, medical, employment, business, family, humanitarian or leisure.

Movement pass

An asylum seeker or a refugee may apply to the Commissioner, through the refugee camp officer, for permission to travel outside a designated area. The act further provides that Commissioner shall issue a movement pass to an asylum seeker or a refugee who has a valid reason to travel outside a designated area.

1.6 CONCLUSION

The issue of refugees is here with us and as such the government cannot burry its head in the sand like the proverbial ostrich and assume nothing is going on, we have seen an attempt of the government in trying to repatriate the refugees in the designated camps of Kakuma and Daadab which went against the principle of non-refoulment under Article 33 of the 1951 UN Convention relating to the status of Refugees as well as the statutory provision in S 18 of the Refugees Act.

The RSD process is a delicate balance between the rights of a refugee vis a vis the security of a nation. In recent times we have witnessed sporadic terror attacks in the country, this has been attributed to the porous border points which see terrorists who are disguised as refugees infiltrate the camps for radicalization, some attacks are alleged to have been planned from within the camps. The RSD officers must therefore be hawk eyed to skim through the process in order to strike this balance between national security as well as the rights of the refugees

Currently the whole world is facing a pandemic, it is only imperative that the RSD officers conduct further to the parameters they have previously used to determine legibility, conduct a medical checkup in line with new CIVID-19 regulations.

People seeking refugee status from countries like Tanzania which has declined to acknowledge the presence of the disease should be handled with extra precaution.

BIBLIOGRAPHY

1951 Convention relating to the Status of Refugees;

1967 Optional Protocol relating to the Status of Refugees; 

Universal Declaration of Human Rights 

American Declaration on the Rights and Duties of Man  

American Convention on Human Rights 

African [Banjul] Charter on Human and Peoples’ Rights 

OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa;

WEEK 8: RIGHTS AND DUTIES OF REFUGEES

Jeremy Karemeri BLAW/2019/45004 and Noah Kiplagat BLAW/2019/41786

INTRODUCTION: REFUGEE SITUATION IN KENYA 

Since it became independent in 1963 to date, Kenya has been host to refugees fleeing from countries neighboring Kenya as a result of civil war, political unrest and upheavals that at one time or another obtained in those countries such as Ethiopia, Somalia, Sudan, Uganda and countries in the Great lakes region (Zaire, Burundi, Rwanda). At its peak, during the early 1990s, Kenya was host to the largest refugee population in East and Central Africa when it stood at close to a half a million. Today the refugee population is down to about a quarter of a million due to the voluntary resettlement of some of the refugees and the resettlement of others to third countries, usually in Europe, Australia and the United States. The refugees are today settled in two camps in Kenya, Dadaab in North Eastern Province and Kakuma refugee camp in Rift Valley Province. This followed the closure of other camps in Mombasa, Malindi, Thika, Moyale and Mandera. The U.N.H.C.R, other U.N specialized agencies like UNICEF and other NGOs have assumed the responsibility of providing the basic needs for the refugees in these camps (i.e. food, shelter, water, healthcare, sanitation and education) while the Kenya Government provides the necessary administrative and security back up and generally maintains Law and Order in the camps.  

1.1 WHO IS A REFUGEE? 

The questions as to who is a refugee has been answered by the legislative texts of both local and International instruments. An Inquiry into the definition begins with the 1951 Convention relating to the Status of Refugees, the Convention is the foundation of international refugee law. It defines the term “refugee” and sets minimum standards for the treatment of persons who are found to qualify for refugee status.5 Because the Convention was drafted in the wake of World War II, its definition of a refugee focuses on persons who are outside their country of origin and are refugees as a result of events occurring in Europe or elsewhere before 1st January 1951. According to the 1951 Convention relating to the Status of Refugees7 a refugee is someone who: 

Has a well-founded fear of persecution because of his/her 

Race, 

Religion, 

Nationality, 

Membership in a particular social group, or 

Political opinion; 

Is outside his/her country of origin; and 

Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution. 

As new refugee crises emerged during the late 1950s and early 1960s, it became necessary to widen both the temporal and geographical scope of the Refugee Convention. Thus, a Protocol to the Convention was drafted and adopted. The 1967 Protocol removed the temporal restrictions, which restricted refugee status to those whose circumstances had come about “as a result of events occurring before 1 January 1951”, and the geographic restrictions which gave States party to the Convention the option of interpreting this as “events occurring in Europe” to “events occurring in Europe or elsewhere”. However, it also gave those States which had previously ratified the 1951 Convention and chosen to use the geographically restricted definition the option to retain that restriction.

The Organization of African Unity [OAU] Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional treaty adopted in 1969, added to the definition found in the 1951 Convention to include a more objectively based consideration, namely: 

 “Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.” 

In 1984, a colloquium of Latin American government representative’s and distinguished jurists adopted the Cartagena Declaration. Like the OAU Convention, the Declaration adds a more objectively based consideration to the 1951 Convention refugee definition to include: 

 “Persons who flee their countries “because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”. As new refugee crises emerged during the late 1950s and early 1960s, it became necessary to widen both the temporal and geographical scope of the Refugee Convention.” 

Locally, the Refugee Act provides for a statutory refugee and a prima facie refugee.  A person is recognized as a statutory refugee for the purposes of the Refugees Act if such a person:  

owing to a well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself to the protection of that country; or  

not having a nationality and being outside the country of his former habitual residence, is unable or, owing to a well-founded fear of being persecuted for any of the aforesaid reasons is unwilling, to return to it.  

A person shall be a prima facie refugee if such person:  

“Owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his country of origin or nationality compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”  

The overarching goal of the modern refugee regime is to provide protection to individuals forced to flee their homes because their countries are unwilling or unable to protect them. The rights and duties of refugees are also spelt out in the above instruments, they advance rights that are balanced with various obligations. Signatories of the Refugee Convention and the additional protocol are required to ensure that refugees enjoy the rights inscribed in the laws. 

1.2 WHAT RIGHTS DO REFUGEES HAVE? 

Refugee law and international human rights law are closely intertwined; refugees are fleeing governments that are either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the context of an armed conflict, refugee law also intersects with international humanitarian law. Section 16 of the Refugee Act refers every recognized refugee and every member of his family in Kenya to the rights and be subject to the obligations contained in the international conventions to which Kenya is party. Under the Convention Relating to the status of Refugees (Refugees Convention), refugee’s rights are spelt out. The UNHCR strives to ensure that refuges enjoy rights to which they are entitled once they have been recognized as “convention refugees.” 

1.2.1 Non-Refoulement 

The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” This is governed by Article 33(1) of the Convention. Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture.15 

Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a prohibition against refoulement.  R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t  the claimant 16-year-old asylum seeker (X) applied for judicial review of the defendant secretary of state’s refusal to grant him asylum and humanitarian protection. X was from Afghanistan and had arrived in the United Kingdom when he was 14. He claimed asylum on the basis of a fear of persecution from his family after he had unintentionally killed his half-brother during an altercation. The secretary of state refused X’s asylum claim on the ground that he had committed a serious crime, although he did accept that the killing had been accidental. The Court upheld the principle of non-refoulment, the Secretary of State for the Home Department had erred in refusing humanitarian protection to a 16-year-old asylum seeker on the basis that there were serious reasons for believing that he had committed a serious crime abroad. She had ignored the broad tapestry of factors which had to be examined, including the welfare of the child. The court advised that the child be offered protection as opposed to being sent back to Afghanistan where her right to freedom would be denied. 

The principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. Article 12(5) of the Banjul Charter detests mass expulsion aimed at national, racial, ethnic or religious groups of non-nationals, this extends to refugees who are usually non-nationals. 

There are two important restrictions to this principle inscribed in Article 33(2). Persons who otherwise qualify as refugees may not claim protection under this principle where there are 

“reasonable grounds” for regarding the refugee as a danger to the national security of the host country or where the refugee, having been convicted of a particularly serious crime, constitutes a danger to the host community.  

In Kenya, the principle is guaranteed in section 18 of the Refugee Act, it provides that  refugees shall not be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or subjected to any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where  the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or  the person’s life, physical integrity or liberty would be threatened. This principle was defended by the court in Kenya National Commission on Human Rights & another v Attorney General & 3 others where Justice Mativo opined that: 

 “The principle of non-refoulement is the cornerstone of asylum and of international refugee law. Flowing from the right to seek and to enjoy in other countries asylum from persecution, as set forth in Article 14 of the Universal Declaration of Human Rights, this principle reflects the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of the person. 

These and other rights are threatened when a refugee is returned to persecution or danger. In fact, the observance of the principle of non-refoulement is intrinsically linked to the determination of refugee status.” 

1.2.2 Freedom of Movement 

Freedom of movement is also a key right for refugees within their host country.  Article 26 of the 1951 Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Meanwhile, Article 28 obliges 

States parties to issue refugees travel documents permitting them to travel outside the State “unless compelling reasons of national security or public order otherwise require.” 

Freedom of movement is an especially important issue with regard to protracted refugee situations in countries with limited national resources and/or limited legal frameworks for protecting refugees who nonetheless host large refugee populations. In such countries, refugee warehousing in which refugees are confined to refugee camps, thereby restricting their access to employment and education is commonly practiced. Countries such as Kenya and Ethiopia specify in their national laws that the movement of refugees throughout the country may be restricted and that refugees may be limited to living in designated areas, namely refugee camps. 

1.2.3 Right to Family Life 

The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the State. This is observed in the CoK 2010 under article 45 and the International Covenant on Civil and Political Rights article 23(1). In respect of this right, a number of countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her. In Kenya section 15 of the Refugees Act (2006) provides for provisions relating to families. It allows members of the family of a refugee who has entered Kenya to be issued with a refugee identity card in the prescribed form on attaining the age of eighteen years; and to be issued with a refugee identification pass if below the age of eighteen years. However, should that individual’s refugee status be terminated, the status of dependent relatives will also be terminated. 

The definition of a dependent relative, however, varies by the cultural notions of family prevalent in the State party. In the U.K., dependents are defined as the “spouse, civil partner, unmarried or same-sex partner, or minor child accompanying [the applicant]” while in Kenya, dependent relatives include the brother or sister of an applicant under the age of eighteen, “or any dependent grandparent, parent, grandchild or ward living in the same household as the refugee. 

1.2.4 Other Rights 

The 1951 Convention relating to the Status of Refugees also protects other rights of refugees, such as the rights to education, access to justice, employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the same treatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals. Refugees are to be granted equal access to the courts, the same access to wage-earning employment as foreign nationals, and refugees are to be afforded the same rights to moveable and immoveable property as foreign nationals. 

Despite these rights being protected in the 1951 Convention relating to the Status of Refugees and under human rights treaties, refugees in various countries do not enjoy full or equal legal protection of fundamental privileges. Ethiopia, for example, made reservations to Article 22 (public education) and Article 17 (wage earning employment), treating these articles as recommendations rather than obligations.  Although not a party to the 1951 Convention, Lebanon is host to a large population of refugees, predominately Palestinians. Restrictive labor and property laws in Lebanon prevent Palestinians from practicing professions requiring syndicate membership, such as law, medicine, and engineering, and from registering property. 

In Kituo cha Sheria & 8 others v Attorney General 32 a government directive requiring refugees to return to refugee camps was rendered an infringement of the petitioner rights. The court stated that the policy also has an effect on other fundamental rights and freedoms of the petitioners such as the right to work enshrined in various international human rights instruments such as the UDHR (Article 23), the ICCPR (Article 6) and the African Charter (Article 15) and also a recognized right in the 1951 Convention relating to the Status of Refugees. One of the petitioner was a law lecture in Nairobi. He was living a dignified life minimizing dependence on the State and his encampment would obviously lead to loss of his livelihood, his right to work and consequently his right to dignity. 

1.3 CONSTITUTIONAL RIGHTS OF REFUGEES IN KENYA 

The definition of a person in the Constitution of Kenya does not distinguish between a citizen, an alien or a refugee. In  Refugee Consortium of Kenya & another v Attorney General & 2 others  the court held that in terms of Article 2(5) and (6) of the Constitution, the general rules of international law and any treaty or convention ratified by Kenya form part of the law of Kenya under the Constitution.  Kenya has further enacted the Refugees Act, 2006, to make provision for the recognition, protection and management of refugees and for connected purposes.  In terms of Section 16 of this Act, every recognized refugee and every member of his family living in Kenya is entitled to the rights, and be subject to the obligations, contained in the international conventions to which Kenya is party and is subject to all the laws in force in Kenya.  Refugees are also entitled to the protections of the Constitution and the Bill of Rights. The rights enshrined in the Constitution of Kenya should thus be enjoyed by Kenyans and other persons including refugees. Refugees are thus entitled to personal liberty as envisaged in Article 29 of the Constitution. They shall not be held in slavery or servitude. Refugees shall not be subject to torture or to inhuman or degrading punishment or other treatment. Refugees are entitled to the protection of their property; Refugees should not be subjected to the search of their persons other property except with their own consent.  

When refugees are charged in court with a criminal offence they are entitled to the protections enshrined in Article 49 of the Constitution of Kenya. They are entitled to a fair hearing and the presumption of innocence should operate in their favor. Refuges are entitled to freedom of conscience which freedom includes freedom of thought and of religion. They are constitutionally entitled to manifest and propagate their religion or belief in worship, teaching, practice and observance. They are also entitled to establish and maintain at their expense places of education and manage the same. To the extent that international refugee instruments uphold the rights enshrined in the Constitution of Kenya and that they have been domesticated in the Refugees Act then they are applicable in the Kenyan courts. If the rights enshrined in the Constitution of Kenya are to be strictly applied in relation to refugees then it is arguable that Kenya will in fact be enforcing the principles contained in international refugee instrument. 

The rights envisaged in the Universal Declaration of Human Rights have already found expression in Chapter IV of the Kenyan Constitution. The said rights are expressed in the various International Refugee Instruments. Refugees are human beings. Refugee rights are, we submit, human rights. They are also Constitutional rights as expressed in the Bill of Rights. Every refugee in Kenya is thus entitled to enjoy both the rights envisaged in the international refugee instruments and are also the rights enshrined in the Constitution of Kenya. Violation of refugee rights can thus in our view be the subject of a constitutional reference. Courts do not have to wait for a constitutional reference. They should ensure that the rights of an accused are upheld at all stages of a trial. The right to a fair hearing for example should be enforced and observed by all courts. 

The fact that there is now a Refugees Act should make it easier to protect refugee rights which are set out in international instruments and the Kenyan Constitution.  

1.4 SAFETY OF REFUGEE WOMEN AND CHILDREN 

Section 23 of the Refugee Act requires the Commissioner for Refugees to ensure that specific measures are taken to ensure the safety of refugee women and children in designated areas. The Commissioner is also required to ensure that a child who is in need of refugee status or who is considered a refugee shall, whether unaccompanied or accompanied by his parents or by any other person, receive appropriate protection and assistance. Section 23 (3) is to the effect that the Commissioner for Refugees shall as far as possible assist such a child to trace the parents or other members in order to obtain information necessary for reunification with the child’s family. Where the parents of the child or other members of the child’s family cannot be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his family. This is in line with the Convention on the Rights of the Child which upholds the rights of refugee children.  

The Children Act (No.8 of 2001) should also be used to safeguard the rights of refugee children who are seeking refugee status or who are considered to be refugees. They are entitled to the full protection of the laws of Kenya to which they are subject. This would include the Penal Code (Cap 63), the Sexual Offences Act (2006) among many other laws. The Act entitles the minister to make regulations for the better carrying out of the provisions of the Act. He or she may make regulations relating to procedure to be followed in application for recognition of refugee status, expulsion of refugees and protection of women, children, unaccompanied minors, persons with disabilities and other disadvantaged groups inter alia. 

 

1.5 DUTIES OF REFUGEES 

The rights of refugees are balanced against their obligations. Refugees have a general obligation and a duty to conform to the laws and regulations as well as measures taken for the maintenance of public order in the host country. The Refugee Act authorizes the Commissioner of Refugee Affairs to withdraw refugee status of any person where there are reasonable grounds for regarding that person as a danger to national security or to any community of that country. 

 Refugees thus have a duty to keep the peace and not be a threat to national security or a threat to any community of that country. The Commissioner for Refugees has power to revoke recognition of a refugee in respect of any person who should not have been so recognized or has ceased to be a refugee for the purposes of the Act. This power is in appropriate so long as it not exercised arbitrarily and in breach of the rules of natural justice. The power to expel refugees on the grounds of national security and public order shall only be exercised in accordance with the due process of law. In Kituo Cha Sheria & 8 others v Attorney General48 the petitioner challenged the government’s decision relocation of urban refugees to officially designate camps citing national security reasons. D. S Majanja opined thus: 

“Where national security is cited as a reason for imposing any restrictive measures on the enjoyment of fundamental rights, it is incumbent upon the State to demonstrate that in the circumstances, such as the present case, a specific person’s presence or activity in the urban areas is causing danger to the country and that his or her encampment would alleviate the menace. It is not enough to say, that the operation is inevitable due to recent grenade attacks in the urban areas and tarring a group of person known as refugees with a broad brush of criminality as a basis of a policy is inconsistent with the values that underlie an open and democratic society based on human dignity, equality and freedom. A real connection must be established between the affected persons and the danger to national security posed and how the indiscriminate removal of all the urban refugees would alleviate the insecurity threats in those areas. Another factor, connected to the first one is 

the element of proportionality. The danger and suffering bound to be suffered by the individuals and the intended results ought to be squared.”  

Confining persons of independent means, those who are employed or carry on their business to refugee camps does not serve to solve the insecurity problem. While national security is important and should not be compromised, the measures taken to safeguard the same must bear a relationship with the policy to be implemented. Security concerns must now be viewed from the constitutional lens and in this regard there was nothing to justify the use of National security to violate the rights of urban based refugees. 

1.6 OBLIGATIONS OF REFUGEE HOSTING NATIONS 

States have huge part to play in protecting refugees. For States, refugee protection is both an individual and a collective responsibility. UNHCR’s Executive Committee has stressed that “respect for human rights and humanitarian principles is a responsibility for all members of the international community.” The New York Declaration for Refugees and Migrants, adopted by the 

UN General Assembly in 2016, affirms that responding to large flows of refugees is a “shared responsibility” of States. 

When countries accede to the 1951 Convention or 1967 Protocol, they agree to protect refugees on their territory and under their jurisdiction, in accordance with the terms of these instruments. States have also agreed to extend relevant rights to refugees in accordance with international human rights obligations. Even States that are not party to the Convention or Protocol are bound by the principle of non-refoulement, which is considered a norm of customary international law and as such is binding on all States. The various branches of government, whether the executive, legislature, or the judiciary have complementary roles and responsibilities for establishing and maintaining State asylum systems based on the rule of law, and for providing protection and durable solutions to refugees. These responsibilities are not limited to the central government; regional and local authorities also play an important part. 

1.6.1 The role of executive and administrative bodies 

To provide a framework for refugee protection, a national asylum system is needed. This requires a decision by the competent national authorities, and political commitment, preferably at the highest level. Relevant ministries and their staff should be fully engaged. Depending on their specific roles, they need to:  

Understand key concepts and legal principles;  

Be able to gather and assess relevant data; 

Review existing national legislation that may apply or be affected;  

Decide what new legislative and policy measures are needed;  

Decide what institutions need to be established;  

Decide whether to request technical support from the international community in setting up the refugee protection framework;  

Ensure implementation of measures introduced; and  

Monitor implementation over time, to ensure effectiveness and fairness of measures adopted.  

In Kenya the obligations of the state are placed in the Department of Refugee Affairs established under section 6 of the Refugee Act headed by the Commissioner for Refugee Affairs established under section 7 of the Act. among other key obligations the commissioner co-ordinate all measures necessary for promoting the welfare and protection of refugees and advise the Minister thereon; formulate policy on refugee matters in accordance with international standards; ensure, in liaison with the United Nations Agencies and any other institutions, the provision of adequate facilities and services for the protection, reception and care of refugees within Kenya. The commissioner also has a key role in the recognition of refugees as well as expulsion from Kenya.  

1.6.2 Legislature 

National parliaments have a central part to play in the creation and maintenance of a national legal framework for protecting refugees. Parliamentarians are responsible for reviewing policy documents and preparing and approving legislation that is in line with international standards. They also appropriate funding for government departments and agencies, and can help to encourage a positive response to refugees from citizens. In countries that have not yet acceded to the 1951 Convention or 1967 Protocol, parliamentarians can promote and support accession.  

The Inter-Parliamentary Union has regularly reaffirmed that the 1951 Convention relating to the Status of Refugees and 1967 Protocol are central to securing refugee protection and has called on States that have not yet acceded to these instruments to do so.  

1.6.3 The crucial role of parliament 

Parliamentarians are opinion-leaders who can promote respect for refugees among their constituents and encourage informed and balanced debate on refugee questions.  

Parliamentarians oversee national budget appropriations, and can ensure that adequate and cost-effective funding is provided both to national refugee protection systems and to UNHCR, as the international agency mandated to protect refugees and promote durable solutions to their problems.  

Parliamentarians can encourage accession to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and to other relevant international and regional agreements. They can design and adopt national legislation and promote State asylum systems that conform to international standards, and oversee their implementation. 

1.7 ROLE OF THE COURTS/ JUDICIARY 

At the national level, judges have a vital role in refugee protection. Their decisions contribute to the consistent and sound interpretation and application of relevant standards and can help to bridge protection deficits in contexts where political, administrative and legislative processes may be weak. They also play an important role in protection of the rights of refugees in hosting nations. Regional courts and bodies also support the interpretation and enforcement of legal standards for the protection of asylum-seekers and refugees, in particular. The European Court of Human Rights, the Court of Justice of the EU, the Inter-American Commission and Court of Human Rights, the African Court and Commission are examples of regional judicial bodies that have issued leading judgments interpreting regional instruments that protect asylum-seekers and refugees. In addition, the non-governmental International Association of Refugee Law Judges (IARLJ) helps foster understanding among the judiciary of the obligations created by the 1951 Convention relating to the Status of Refugees and other relevant instruments. 

In Kenya the refugee act provides for process that leads to the courts intervention on refugee affairs, section 9 of the Act creates the Appeals board and its functions under section 10.57 Any person aggrieved by a decision of the Commissioner under this Act may, within thirty days of receiving the decision, appeal to the Appeal Board against the decision. The Appeal Board may confirm or set aside the decision of the Commissioner and shall cause the appellant concerned to be notified of its decision in the matter in writing. The courts intervention is invoked if one is dissatisfied with the decision of the appeals board. Any person who is aggrieved by the decision of the Appeal Board may within twenty one days appeal to the High Court. 

Other quasi-judicial bodies also carry out various functions to address the plight of refugees, these include National human rights bodies and ombudspersons. In Kenya we have the Kenya National Commission of Human Rights and the Commission on Administrative Justice (CAJ). While operating independently from the State, they make important contributions to protecting and monitoring respect for the rights of asylum-seekers and refugees. They investigate complaints and seek to resolve them, usually through recommendations or mediation. They can also identify and work to remedy systemic issues that cause breaches of people’s rights, including those of asylum seekers and refugees.  Pursuant to its mandate the Kenya National Commission on Human Rights challenged the government’s decision to close the Kakuma and Daadab refugee camps in the case: 

Kenya National Commission on Human Rights & another v Attorney General & 3 others where the court declared the government’s decision ultra vires and unconstitutional. 

1.8 OFFENCES UNDER THE REFUGEE ACT 2006 

The Refugee Act creates various offences that refugees in Kenya are bound by. Section 25 of the Act criminalizes acts by persons unlawfully in Kenya against the provisions of the Act, who further makes any false declaration or statement to an appointed officer. This implies that refugees are supposed to be truthful and honest when giving any information necessary to grant refugee status in Kenya.  Secondly, the person is also guilty of an offence if he/she knowingly misleads any appointed officer seeking information or material necessary to exercise of any of his powers under the Act. Thirdly, having left or been removed from Kenya in consequence of an order made under section 21 on expulsion of refugees, if a refugee  is found in Kenya while that order is still in force the refugee is guilty of an offence.  Finally, not being a refugee and not having a valid refugee identification document, a refugee is guilty of an offence if he/she fails to comply with an order of the Minister to leave Kenya; and resides without authority outside the designated areas specified under section 15(2). For the offences indicated guilty persons on conviction are liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment. 

BIBLIOGRAPHY:

STATUTES; 

Municipal Laws 

Constitution of Kenya 2010,  

Children Act (No.8 of 2001) 

Penal Code (Cap 63), 

Sexual Offences Act (2006) 

Refugee Act 2006  

International Law 

Convention relating to the Status of Refugees 1951 

Convention on the Rights of the Child, 1989 

International Covenant on Civil and Political Rights, 1966 

International Covenant on Economic, Social and Cultural Rights, 1966 

The New York Declaration for Refugees and Migrants, adopted by the UN General Assembly in 2016 

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 

Protocol to the Convention relating to the Status of Refugees 1951 

Universal Declaration of Human Rights, 1966 

CASES 

Kenya National Commission on Human Rights & another v Attorney General & 3 others [2017] eKLR 

Kituo cha Sheria & 8 others v Attorney General [2013] eKLR 

Refugee Consortium of Kenya & another v Attorney General & 2 others [2015] eKLR 

R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t (UKSC) 2011 

BOOKS 

Goodwin-Gill G.S, “The Refugee in International Law” (3rd ed Oxford University Press 2007) 

Foster M, “International Refugee Law and Socio-Economic Rights” (Cambridge University Press 2007) 

Hathaway, “The Rights of Refugees under International Law” (Cambridge University Press 2005) 

JOURNALS AND ARTICLES 

Laura Hammond, “Somali refugee displacements in the near region: Analysis and 

           Recommendations” (2015) Paper for the UNHCR Global Initiative on Somali Refugees 

<https://www.unhcr.org/55152c699.pdf> Accessed 3/2/2021 

Sulaiman Momodu, “Refugees turn to Ethiopia for safety and asylum” (2015) <https://www.un.org/africarenewal/magazine/april-2015/refugees-turn-ethiopia-safetyand-asylum> Accessed 3/2/2021 

Verdirame, G Whitaker, “Human Rights and Refugees: The Case of Kenya” (2010) Journal of Refugees Studies, vol. 12, no. 1, pp 54-77 

UNHCR, “A guide to international refugee protection and building state asylum systems Handbook for Parliamentarians” (2017) 

Loescher, “The International Refugee Regime: Stretched to the Limit?” (1994); Journal of International Affairs, 47(2), 351-377. Retrieved March 1, 2018, from <http://www.jstor.org/stable/24357286> Accessed 3/2/2021 

Kirui, “The Dilemma of Hosting Refugees. A Focus on the Insecurity in North- Eastern 

            Kenya” (2012) International Journal of Business and Social Science Vol. 3 No. 8 

WEEK 9: FUNDAMENTAL PRINCIPLES OF NON-REFOULEMENT

Collete Warigia BLAW/2019/42943 and Samson Munoru BLAW/2018/36624

REFOULEMENT- This is the act of forcing a refugee or asylum seeker to return to a country or territory where he or she is likely to face persecution. Expulsion or return of a refugee from one state to another.

HISTORY

The principle of non-refoulement arises out of an international collective memory of the failure of nations during World War II to provide a safe haven to refugees fleeing certain genocide at the hands of the Nazi regime.

During the war, several states had forcibly returned or denied admission to German and French Jews fleeing the Holocaust on May 27, 1939. After the war, millions of refugees and prisoners from the Soviet Union were forcibly returned despite concerns they would face retaliation from the Soviet government.

In the 1960s, the European Commission on Human Rights recognized non-refoulement as a subsidiary of prohibitions on torture. As the ban on torture is jus cogens, this linkage rendered the prohibition on refoulement absolute and challenged the legality of refoulement for the purposes of state security. 

APPLICATION OF NON-REFOULMENT PRINCIPLE

In 1951, the Convention Relating to the Status of Refugees1 brought the concept of non-refoulement into public discourse. The protection against refoulement under Article 33(1) applies to any person who is a refugee under the terms of the 1951 Convention, that is, anyone who meets the requirements of the refugee definition contained in Article 1a (2) of the 1951 Convention.

Over the subsequent 65 years, the principle has become recognized as a cornerstone of International Refugee Law, and has achieved the status of a non-derogable right of persons who have fled persecution across an international border.But while non-refoulement is often understood to be synonymous with refugee protection, the principle is also firmly embedded in other international legal frameworks whose jurisdiction extends far beyond the refugee sphere. For example, under international human rights, humanitarian and customary law, it prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.

The application of non-refoulement to situations of internal displacement has taken on an added significance. In 2016, 64 percent of the world’s conflict-displaced persons remained within their countries of origin.While the majority of these individuals found shelter in host communities or in traditional internal displacement camps, a smaller number sought refuge in the compounds of the United Nations (UN) and of other international organizations and entities. One such case was in South Sudan, where at the end of 2016 over 200,000 internally displaced persons (IDPs) lived under UN protection inside the bases of the UN peacekeeping mission.

The principle of non-refoulement is of particular relevance to asylum-seekers. As such persons may be refugees, it is an established principle of international refugee law that they should not be returned or expelled pending a final determination of their status.

The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or renditions, and non-admission at the border. This is evident from the wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever”.

It applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom related to one or more of the grounds set out in the 1951 Convention, or from where he or she risks being sent to such a risk.

Exceptions to the principle of non-refoulement under the 1951 Convention are permitted only in the circumstances expressly provided for in Article 33(2), which stipulates that: “The benefit of Article 33(1) may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he or she is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

LAWS APPLICABLE

1. The Constitution of Kenya, 2010

The Constitution of Kenya 2010 allows for the enforceability of international law. The Constitution of Kenya under article 2(5) and 2(6) provide for the applicability of international law. Article 2(5) states that,

The general rules of international law shall form part of the law of Kenya.

Article 2(6) goes on to state that,

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution

2. The 1951 United Nations Convention Relating to the Status of Refugees

In the beginning, the 1951 Convention only protected European refugees, victims of the Great War, but this figure was extended to Non- European refugees as well, with the signing of the 1967 Protocol relating to the Status of Refugees. 

The 1951 Convention establishes in article 33 the Principle of Non-Refoulement. According to the United Nations High Commissioner for Refugees (UNHCR), this principle is “the cornerstone of asylum and of international refugee law” and it is considered part of the customary international law.

As described above, the Principle of Non-Refoulement is mainly established by article 33 of the 1951 Convention and the 1967 Protocol. The obligatory nature of the Principle of Non-Refoulement is not only found in international instruments which contain it, but also, in the character of norm of customary international law that has been attributed to the Principle, which means it is mandatory for every nation in the international community. Article 33 of the 1951 Convention do not permit reservations, “the principle of Non-Refoulement is a norm of customary international law based “on a consistent practice combined with recognition on the part of nations that the principle has a normative character”

Article 33(1) of the Act provides that,

No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Article 33(2) goes on state the exceptions.

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1987.

Article 3 (1) “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

 Article 3(2) states, “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” In the case of; Othman (Abu Qatada) v United Kingdom(8139 )ECTHR found that deportation to Jordan would be in violation of Article 6 right to a fair trial of the European convention on human rights since there was a real risk that Othman would be retried on “evidence obtained by torture of third persons”.

4. American Convention on Human Rights of 1969

Article 22(8)provides; “In no case may an alien be deported or returned to a country, regard less of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.” In the case of Tineo Family v Bolivia(2013) where, The case refers to the forced removal of the Pacheco Tineo family from Bolivia to Peru on February 24, 2001, as a consequence of the rejection of the request for recognition of refugee status in Bolivia. The Court declared the State of Bolivia responsible for the violation of the right to physical, mental, and moral integrity Article 5(1), right to a fair trial Article 8, rights of the family and the child Articles 19 and 17, right to seek and be granted asylum Article 22(7), non-refoulement obligations Article 22(8); and, right to judicial protection Article 25 of the American Convention on Human Rights. 

5. International Convention for the Protection of All Persons from Enforced Disappearance 

Article 16 (1) provides; “No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.”

 Article 16 (2) provides; “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.”

6. The Geneva convention 1949.

Article 45 of the Fourth Geneva Convention states that “In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.”

7.The 1969 Organization of Africa Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.

 Article 3(2) provides that “no person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.”

8. Southern African Development Community (SADC) Protocol on Extradition 2002. 

Article 4(b) provides that extraditions shall be prohibited if the Requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinion, sex or status or that the person’s position may be prejudiced for any of those reasons.

9. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention)2009.

Article 9(2)(e) states that members shall, “Respect and ensure the right to seek safety in another part of the State and to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk.”The Convention becomes legally binding for countries that have ratified it and incorporated it into domestic legislation

10. Universal Declaration on Human Rights

Article 14(2) of the Universal Declaration of Human Rights provides that the right to seek and to enjoy asylum, as guaranteed in article 14(1), “may not be invoked in the case of prosecution genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations”

11.Bangkok Principles on the Status and Treatment of Refugees (Bangkok Principles)

Article III states that, “No one seeking asylum in accordance with these principles shall be subjected to measures such as rejection at the frontier, return or expulsion which would result in his life or freedom being threatened on account of his race, religion, nationality, ethnic origin, membership of a particular social group or political opinion”

12. International Conference of the Great Lakes Region (ICGLR), Protocol on the Protection and Assistance to Internally Displaced Persons, November 30, 2006.

Article 4(1) provides that, all International Conference on the Great Lakes Region (ICGLR)state members, comprised of 12 countries in Central Africa shall “adhere to the principles of International Humanitarian Law and Human Rights applicable to the protection of internally displaced persons in general and as reflected in the Guiding Principles in particular.” The Protocol further calls for the Guiding Principles to be incorporated into domestic law of the ICGLR countries

13.Arab Charter On Human Rights (Revised), 22nd May 2004

Article 8(2) provides for redress, compensation and rehabilitation for victims of torture or cruel treatment. Therefore, an asylum seeker would be provided for shelter and accommodation without necessarily expelling them back to their country of origin. Article 3(1) provides for equality between men and women. 

14. The Refugee Act 2006

The Refugee Act, under section 18 also provides for the principle. It provides that no person shall be refused entry into Kenya or returned to any other country if the result of such refusal or return would result to the person being subject to persecution on the account of his race, religion, nationality, membership of a particular social group or political opinion, or if the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or whole of that country.

15. The Refugee Bill 2019

The Refugee Bill provides for non-refoulement under section 29. It states that,

29(1) No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or be subjected to any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where-

the person may be subject to persecution on account of race, religon, nationality, membership of a particular social group or political opinion; or

the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or whole of that country.

(2) The benefit of the subsection 1 may not, however, be claimed by a refugee or asylum seeker whom there are reasonable grounds for him or her being regarded as a danger to the national security or public order of Kenya

CASE LAWS

1. Kenya National Commission on Human Rights v The Attorney General

The facts giving rise to the petition were that, on the 6th day of May, the 4th respondent (Dr. Karanja Kibicho) issued a directive by way of press release entitled, “Government Statement on Refugees and Closure of Camps” whose details were that, owing to national security, hosting of refugees has come to an end and that the Government is working on a mechanism for closure of the two refugee camps within the shortest time possible.

Among the issues of determination was whether the government’s directive violated the principle of non-refoulement. The judge stated that while the principle of non-refoulement is basic, it is recognised that there may be certain legitimate exceptions to the principle.

Article 33 Article 33 (2) of the 1951 Convention provides that the benefit of the non-refoulement principle may not be claimed by a refugee ‘whom there are reasonable grounds for regarding as a danger to the security of the country … or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.’ This means in essence that refugees can exceptionally be returned on two grounds:- 

in case of threat to the national security of the host country; and

in case their proven criminal nature and record constitute a danger to the community

The Government failed to prove any convictions made to any refugee whatsoever and therefore despite the allegations made that the camps were breeding grounds for terrorists. He further issued multiple directives;

a)A declaration be and is hereby issued decreeing that the directive issued by the 3rd Respondent, namely Major General (RTD) Joseph Nkaissery on the intended repatriation of refugees and asylum seekers of Somali origin on 10th May 2016 is arbitrary, discriminatory and indignifying.

b)A declaration be and is hereby issued declaring that the directive issued by the 4th Respondent namely, Dr. (Eng) Karanja Kibicho on the 6th May 2016 disbanding the Department of Refugee Affairs is ultra vires the 4th Respondents powers and hence null and void

c)A declaration that the decision of the Government of Kenya to collectively repatriate all refugees in Dadaab Refugee Camp to the frontiers of their country of origin against their will violates the principle on non-refoulement as expressed in Article 33 of the 1951 UN Convention relating to the status of Refugees as well as section 18 of the Refuge Act 2006. 

Njamba and Balikosa v Sweden 2007

Ms. Njamba and her family were originally from the Democratic Republic of the Congo (DRC). Ms. Njamba’s family relocated where her husband became involved with an armed militia group. Violence erupted locally, allegedly in response to the activities of Ms. Njamba’s husband, he and three of the couple’s children disappeared. Ms. Njamba, believing these members of her family have been killed, fled to Sweden with her daughter. In Sweden, Ms. Njamba and her daughter unsuccessfully sought asylum, exhausted the available appeals mechanisms and submitted a communication to the Committee against Torture alleging that they faced a risk of torture if returned to the DRC. 

The Committee considered Ms. Njamba’s claim that the medical resources in the DRC would be inadequate to treat her for HIV, and the deterioration of her health would constitute torture, to be inadmissible. Generally speaking, the deterioration of an already existing condition will not be considered to fall within the definition of torture. The Commission found that Sweden would, however, violate the rights of Ms. Njamba and her daughter if it returned them to the DRC. The Committee considered that the situation in the country was such that they would have faced foreseeable, real and personal risk of torture.

 In reaching this conclusion, the Committee placed particular weight on the prevalence of sexual-violence against women throughout the country. The Committee noted that the prevalence of such violence was not limited to the areas of the country where conflict was ongoing, so it would not be possible to identify safe areas of the country for repatriation

GENERAL CHALLENGES FACED

The principle faces a challenge in that it is prone to abuse. Several states abuse this power and forcefully repatriate the refugees despite the principle. States might forcefully repatriate refugees and pin the reason for forceful repatriation on issues like insecurity. For instance, the government of Kenya was about to forcefully repatriate Somali refugees from the Dadaab camps (Kenya National Commission on Human Rights and another v The Attorney General (2017)eKLR) 

ROLE OF COURTS

The courts have a very significant role in enforcement of the rights of refugees. Firstly, they have competent jurisdiction to hear and determine cases regarding refugees

The Refugee Act 2006 under section 10(3) for instance has provided that refugees may appeal to the High Court after their application for refugee status has been denied by the Appeal Board

The courts in other words have provided a safe haven for refugees.

The courts also have a responsibility in interpreting refugee laws, particularly those regarding the non-refoulement principle

REFERENCES

The Constitution of Kenya 2010

The 1951 United Nations Convention Relating to the Status of Refugees 

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1987

American Convention on Human Rights of 1969

International Convention for the Protection of All Persons from Enforced Disappearance

The Geneva Convention 1949

The 1969 Organization of Africa Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa

Southern African Development Community (SADC) Protocol on Extradition 2002

African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention)

Bangkok Principles on the Status and Treatment of Refugees (Bangkok Principles)

Universal Declaration on Human Rights

International Conference of the Great Lakes Region (ICGLR), Protocol on the Protection and Assistance to Internally Displaced Persons, November 30, 2006.

Arab Charter On Human Rights (Revised), 22nd May 2004

Refugee Bill, 2019

Refugee Act, 2006

Njamba and Balikosa v Sweden 2007

Black’s Law Dictionary

Kenya National Commission on Human Rights v The Attorney General

UNHCR, Global Trends: Forced Displacement in 2016, June 2015, http://www.unhcr.org/5943e8a34.

Office of the United Nations High Commissioner for Refugees (UNHCR) Executive Committee, General Conclusion on International Protection No. 79 (XLVII), 1996, http://goo.gl/XHWuPW.

https://www.sciencedirect.com/science/article/pii/S1870465415000094#fn0005 

WEEK 10: DURABLE SOLUTIONS & THE LEGAL CHALLENGES

James Mbugua:BLAW/2019/42677 and Atunga D. Abuga: BLAW/20141/69795

INTRODUCTION 

Historically, the concept of durable solutions was initiated in 1945 after the 2nd World War to address global refugee encounters. Notably, these solutions were simply designed for refugees fleeing persecution, fighting and poverty in Europe. The unprecedented forced displacement in Europe as a result of NAZI aggression pushed German residents and their neighbours mainly Jews to seek safety and protection elsewhere.

In relation to the African continent and the Great Lakes region in particular, the circumstances that contributed to people being refugees are different. It is of great importance to note that immediately after departure of European colonialists, most African leaders including those in the Great lakes engineered the colonization of their own people, got resources meant for everyone and kept them for themselves and their families. Today the region continues to witness internal colonization by its own leaders, hence forcing a person who opposes dictatorship into exile. This has been witnessed in countries like Rwanda, Uganda, Burundi and Democratic Republic of Congo (DRC) largely due to these countries shared political and identity history.

Based on the above narrative, one wonders whether durable solutions such as resettlement, integration and repatriation designed for Europe during WW2 are suitable for contemporary refugee problems experienced in the Great lakes region especially in the context of having political changes, civil wars, ethnic violence, dictatorship, bad governance, persecution, human right abuse and political violence appear to be the contributing factors to forced migration in the Great lakes region today. Also the region has experienced political violence and hence forcing many people to leave their homes to seek protection in neighbouring countries where many live in refugee camps since independence in the early 1960s. Since majority of the fleeing people are sheltered in camps in most countries and this contributes to human rights related violence as opposed to protection. This was witnessed in the 1994 violent return of the Tutsi refugees living in Uganda and 1996 DRC exiles and Uganda exiles from Tanzania in 1979.

However many refugees never want to stay in camps for long, but because of conditions in the country of origin, they are obliged to the norms of their protection rather than voluntary repatriation. Examples of where UNHCR has promoted durable solutions in Great Lakes region are in Congo, Rwanda and in Burundi. In other regions are Afghanistan where in 2008 the Afghan Government and UNHCR organized an International Conference on Return and Reintegration of Afghan refugees, in Tajikistan, Mauritania and Sri Lanka.

Lastly the need for durable solutions is not limited to refugees, IDPs and stateless persons also require lasting resolution to their legal and physical protection needs. However, due to the lack of reliable data on solutions for other groups, the analysis in this discussion is about durable solutions accorded to refugees only which includes:-

Voluntary repatriation

Resettlement

Local integration 

They can be defined as the means by which the situation of the refugees can be satisfactory and permanently resolved to enable them to live normal lives Such lasting solutions ends problems associated with displacement and allows people to resume their normal lives in a safe environment. The international community, and not just the host state, has a shared responsibility to find durable solutions for refugees. Assisting them in this regard is one of the most important functions of the UNHCR.

VOLUNTARY REPATRIATION

Voluntary repatriation shall be understood as the free and voluntary return to one’s country of origin in safety and dignity. It is the solution of choice for vast majority of refugees. In a returnee situation, it implies the restoration of national protection to obviate the need for international protection and, through the reintegration process, the ability to maintain sustainable livelihoods, access basic services and fully reintegration into communities and countries of origin. 

Refugees who opted to repatriate have to do it on a voluntary basis and be previously informed as it is key to ensure that refugees, when making the decision of returning to their country of origin are doing it without external pressures or lacking relevant information on the prevailing security conditions in the country of origin.

When necessary, the Government shall pursue efforts to establish a legal framework for voluntary repatriation through Tripartite Agreements with the Government of the country of origin and UNHCR to facilitate the process of voluntary repatriation of refugees who will opt to voluntarily return to their country of origin. The process of drafting such tripartite agreements shall include representatives from NGOs in both countries and from the refugee community.

For example here in Kenya the Government, through the Ministry of Interior and Coordination of National Government, shall take all steps to ensure that the process of voluntary repatriation will be conducted in safety and dignity and respecting fully the terms of the Tripartite Agreement signed. A Tripartite Agreement was signed in November, 2013 between the Governments of Somalia, Kenya and UNHCR. In December 2014 the 1st group of refugees had voluntarily repatriated whereby 9 areas were identified as places where refugees could decide to voluntarily return including capital of Somalia where they will benefit from reintegration assistance. 

A Tripartite Agreement shall provide for:-

Procedures by which a refugee shall make an application for voluntary repatriation.

The procedures for surrender of any travel documents, identity cards, permits or any other documents which he/she acquired by virtue of being a refugee.

Procedure on the fair and adequate compensation on immovable property acquired during their asylum in accordance with any written law.

Procedures enabling the returnee to take away any movable properties acquired during asylum in accordance with any written law.

Cross border coordination and monitoring returnees. 

Relatives of refugees, who opted for voluntary return, will keep their refugee status until they will also voluntarily opt to repatriate. Refugees may also decide to return spontaneously without taking advantage of the framework established by the Tripartite Agreement. Since the beginning of the Pilot Project to support spontaneous returns to Somalia in December 2014 close to 83,000 Somali refugees have been assisted to return home in places like Baidoa, Kismayu and Mogadishu.

Another example of refugee repatriation is the great lake region where UNHCR has promoted voluntary repatriation as part of the durable solutions for Congolese, Rwanda and Burundi refugees while observing the evolving diplomatic situation between Rwanda and DRC as well as security conditions in each of these countries. More than 52,000 Congolese refugees were possibly repatriated and approximately 10,000 Rwanda refugees, through the provision of return packages and a well devised plan for reintegration activities. 

Challenges and opportunities of voluntary repatriation 

The main challenge of voluntary repatriation is the absence of conditions conducive to return. Sustainable repatriation is therefore contingent on addressing root causes of displacement including persecution, conflict over resources, ethnic violence, human rights violations and absence or rule of law. A number of elements were identified during the High Commissioner’s Dialogue on protection challenges in December 2015 as being essential to addressing these root causes, including the identification of the drivers and triggers of conflict-related displacement, the support of and collaboration between political, humanitarian and development actors, regional corporation, solidarity and responsibility sharing and long term political support as well as financial commitment to solutions including voluntary repatriation

Other challenges include:-

Land

For example, refugees from Central African Republic stress that housing, land and property issues are a main factor impeding their return. UNHCR and Partners are working with the government to raise awareness with local authorities and law enforcement bodies; supporting them to create mechanisms to secure land, house and property assets left by displaced people and property restitution to returnee UNHCR is also providing social cohesion assistance, focusing on peace education, which is essential to supporting sustainable return. 

Institutional capacity and insecurity 

Low institutional capacity; with respect to the schooling system which is not well equipped to absorb additional students and also the healthcare system. Security situation is another key challenge where although ii may appear to be positive, it is not always stable.

Attitudes of the host community and social cohesion 

Sometimes there is always a strong feeling amongst the returnees that they won’t he accepted h. the locals. The fundamental issues hindering social cohesion are therefore land and poverty. In the communities the returnees and locals are crucially divided over the issue of who has the rights to land. Even in cases where people have shared land, there is dissatisfaction amongst many who feel either unhappy with having been forced to share land, or who feel they are entitled to more land than they have been given.

Poverty and unemployment 

The issue of poverty and unemployment are linked to problems of population density and land shortage. The scarcity of resources and direness of the situation is what fuels the land disputes and conflicts. The sharing of land has also increased poverty. Unemployment rates become high and it is difficult for educated people to get employed. Returnees are frustrated that there arc no jobs for those who have completed their education.

Language 

The issue of language has affected not only the children but also young adults who are educated in for example English and Kiswahili. The challenge of language makes it difficult for people to communicate with locals, and nearly impossible for them to get jobs. For students language has been a large challenge as well. Many children have dropped out of school because of language challenges, which is a cause of concern.

Education 

In addition to the challenge of language, the level of education taught in the home country of residence during war was at a lower level than the education taught in the country of refuge where the school system differs. The students educated in the country of refuge are generally at a higher level than the local children, but arc in some instances placed in classes according to age. The returnees are often further ahead in the curriculum than the local students. Another problem related to education is that parents cannot afford to buy uniforms and schoolbooks, and frequently that children go to school hungry having hard time in concentrating in class.

RESETTLEMENT 

In the global context, resettlement is defined as the selection and transfer of refugees from a state in which they have sought protection to a third slate which has agreed to admit them as refugees with permanent residence status. Basically this is where a refugee moves from his country of asylum to a third country because of various concerns. When returning home or remaining in the country of asylum is difficult or impossible, refugees can sometimes he granted lawful admission to a safe third country where they can enjoy permanent residence.

Resettlement is not a right; therefore, it is not meant for all refugees and hence is determined by the availability of resources and on case by ease analysis. Generally, the criteria for promoting resettlement includes those refugees whose rights are violated or are at risk of being violated in the host country, or who face the risk of physical or sexual violence, survivors of violence and torture, women at risk, unaccompanied minors, children, women or the elderly whose needs cannot be addressed in the host country, medical cases among others. Resettlement to a third country happens as part of the International community’s effort to share responsibility for refugees so that any other country is not hosting or integrating a disproportionate number of refugees. Resettlement as a solution is often referred to in relation to “burden sharing” arrangements.

CHALLENGES OF RESETTLEMENT

Upon settling in the country of resettlement, the hardships that refugees endure do not end when they arrive in their country of resettlement. There are then many new barriers that the refugees must face, including culture shock, inability to communicate, lack or severe underemployment, poor shelter and health. Compounding all are political sensitivities and the insecurity not only of their present position hut the constant worry for the fate of families still left behind in often dangerous circumstances.

Culture shock and inability to communicate.

When refugees move to a new country, they not only have to adapt to a new culture far from their family and friends, but also often to a new language. The existence of a language barrier for many refugees makes it more difficult for them to gain and access higher education. Moreover, because children tend to learn the language and adapt to their resettlement Country more quickly than their parents, the traditional parent—child relationship is inverted. Children become cultural brokers for the rest of the family and face emotional stress and pressure because of this role. Refugees are frequently unprepared culturally for life in their country of resettlement, and they experience culture shock.

Unemployment 

In addition to facing discrimination and culture shock, refugees may struggle economically and in the job market. Often, skills that were profitable in their native country are not seen as valuable to employers in their resettlement country. For example, refugees who worked as rural farmers in their home country may have difficulty applying their talents to the large-scale agricultural industry in the U.S. Similarly, professional degrees or education levels may not be recognized in the new country. A refugee who formerly worked as a dentist may be required to re-enroll in denial school in order to practice in their new country, which is expensive and arduous process. Resettlement countries provide temporary aid to refugees; however, refugees still often struggle to make ends meet as they search fur employment and acclimate to the new culture

Health 

Resettled refugees access to healthcare depends on their ability to navigate the health systems in their new country. There are many barriers that refugees must overcome in order to receive effective healthcare, including language barriers where the ability to speak the language and communicate in the country of resettlement is very important because language and communication affect all stages of healthcare access from making an appointment to filling out a prescription. In addition, the inability to communicate can negatively impact health in times of emergency. If a refugee is able to read and understand English, it is much easier at receiving emergency care if any.

Incorrect interpretations can make diagnoses and achieving medical compliance even more confusing and difficult and provoke unnecessary stress for refugees, for example where a child id diagnosed and the Child Protective Services providers are called this can add a whole new level of stress and confusion for the child’s family.

Structural barriers such as transportation, insurance and medical expenses are also widely cited by refugees as obstacles to receiving healthcare. While other foreigners may purchase private insurance cover, refugees are usually financially unable to do.

LOCAL INTEGRATION 

In official policy terms, local integration refers to the means of ending exile by allowing refugees to become full members of their host community in their first country of asylum. Basically if turning home is not viable, refugees are allowed to remain permanently in the host country. The refugees are encouraged to integrate into local communities through self-reliance opportunities such as access to jobs, education, healthcare and other basic services. The principle of Local Integration is recognized under International Refugee Law. The 195I UN Convention on Refugees, recognizes the concept of local integration and that of citizenship merged as one. Over time the refugees may obtain permanent residence or even citizenship of the host country in which case they will cease being refugees. Some countries in Africa such as Uganda, Guinea, Angola, Sierra Leone and Tanzania have successfully integrated refugees and granted them citizenship. For example, in 1981, Tanzania successfully granted 25,000 refugees’ citizenship.

PRE-REQUISITES FOR EFFECTIVENESS OF LOCAL INTEGRATION

The UNHCR handbook on Durable Solutions sets out a prima facie requirement for local integration to be effective. It lists the following pre-requisites:

Full co-operation of the host government.

If the host government co-operates, local integration is hound 1o work. For example, if the Kenyan government was to support local integration. By having good citizenship and Immigration Act, that could allow refugees with over seven years’ lawful residence in Kenya to become citizens, most Somali Refugees would have been locally integrated.

There was the integration of the Guatemalan refugees who fled civil war and persecution in the 1970’s and 1 980’s in Mexico.

Sufficient external financial support 

Financial support is what seems to be the hurdle for most governments to grant citizenship to refugees. It is important to note that the larger share of financial aid given by different international agencies to support the refugee work would be dedicated to the ground work of supporting local integration. For example, in Uganda the country guarantees freedom of movement, right to employment and even tenure of land for own self-reliance

Receptivity of the local population 

Receptivity means acceptance by the locals who are also known as the host communities. For example, the Somali Refugees have been largely accepted in the North Eastern and Nairobi regions. They have been able to peacefully coexist with the locals in at both regions. In Nairobi, they were 29,262 by February, 2017.

Viable economic context for self-reliance 

Looking at the Ugandan example, where refugees are given the option of land tenure to be able to take care of their needs is a step towards integration. In Kenya, Ethiopian refugees in the Kakuma camp are able to run small businesses and contribute Largely to the economy despite the limited freedom of movement. This means that there is viable economic context for self-reliance.

Full incorporation into the new society 

The refugees need to be fully incorporated into the new society. If the Somali refugees who have been in the camps for over two decades were to be incorporated in the Kenyan context, they would have to know things like the local dialect and the national languages. It would mean that they have to surrender their refugee documents and in turn apply for citizenship documents gradually. Local integration would mean complete integration into the Kenyan society.

CHALLENGES OF LOCAL INTEGRATION

Most countries like Kenya and Uganda are always open to receiving refugees and asylum seekers. However, these countries are normally reluctant to grant citizenship considering the economic burden and challenges it would have to bear after taking in these refugees. The major challenges of local Integration are:

Scarcity of national resources.

It is a fact that the economic burden of a country increases every day because of a population rise that happens every (lay. The international community ought to bear a certain percentage of the economic burden for local integration to work.

Misuse of local integration 

The right to asylum is considered as not being a permanent status. Refugees are expected to back to their countries once circumstances get better in their country of origin. There have been many instances of refugees going back, for example, the Rwandese refugees went back home after the genocide in 1994. In some countries, voluntary repatriation has failed despite circumstances in the refugee’s country of origin being better. For example, the ethnic Nepal Bhutanese who are in Nepal at the moment would like to return to their country-of-origin hut, they cannot because they have been denaturalized by the Bhutanese authorities. They cannot now return as they are no longer considered Nationals. This normally leaves the refugees in limbo as they can turn out to be stateless refugees.

The basic threshold for local integration to be achieved in a country is for a government to good laws and policies on integration.

Lack of co-operation from the host government 

For local integration to succeed, the host government must co-operate. Local integration fails if the host government refuses to grant refugees citizenship.

Hostility from the local community.

If the citizens of the host government are not welcoming but are hostile towards foreigners (refugees) then it can be very difficult for local integration to succeed.

Lack of external financial support to the host government.

Most African countries don’t grant citizenship to refugees due to lack of money. Local integration requires money that can enable the host government to provide refugees with basic needs for some time before they become self-reliance.

It can lead to insecurity or increase in crime rate.

Incase refugees are granted citizenship without any financial help or employment, some of them can turn to stealing or robbery to survive.

CONCLUSION

We have examined the contemporary state of political violence and refugee crisis in the Great Lakes Region of East Africa, with an evaluation of the use of durable solution to the refugee question. There is need for use of dialogue at various fronts, for the durable solutions to be effective. There are underlying factors that form the flight, which should be subjected to dialogue. This is key to the prospective success of the durable solutions.

The multifaceted violence and difficulties in making peace in the Great Lakes Region remains elusive as minority elites remain in control of these country’s resources by means of the gun. Guns have been in charge of the region’s countries and as such giving the dominance of the elite and denying their citizens the right and ownership. The elite’s dominance is practically accompanied by state violence which has gradually become a legitimate method of silencing cities of the ruling minority. In this light, the lack of will and coordination and inability from regional leaders to evaluate the impact of refugee problems requires both top-down and bottom-up perspectives given the categories of violence. It is at this point that the international community may play its role based on the dialogue foundation other than an abstract nation of durable solutions that have not been subjected to the use of dialogue. Its role involves the initiative, facilitation and support of political dialogue in the Great Lakes Region. 

REFERENCES

UNHCR Master Glossary of Terms

10M Glossary on Migration 2nd Edition

Mount Kenya University Law Journal

Glossary of the UNHCR Resettlement handbook

A Better Place to live: Refugee Resettlement Challenges all of Society (October 11, 2009) The Afro News.

Reedy J (2007) The Mental Conditions of Cambodian Refugee Children and Adolescents.

International Migration Review 13. 1 (1979)

Healthcare harriers of refugees’ post-resettlement. Journal of Community Health.

The UNHCR handbook on durable solutions.

WEEK 11: NEXUS BETWEEN REFUGEE LAW AND HUMAN RIGHTS LAW

Meshak Mwangi- BLAW/2019/43578 and Patrick Githii- BLAW/2019/43393

Introduction.

The recognition of the need to respect Human rights and the growth and development of Human rights has brought about the recognition of Refugees in the world all over. The guiding principle is the Universal declaration on Human Rights, where in Article one it set outs clearly that Article 1, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” 

In this research, we have looked at the nexus that comes into play when talking about Refugee law and Human rights law, also the human rights-based refugee protection and finally, protection of refugees with special need.  

HUMANITARIAN LAW AND REFUGEE LAW

International humanitarian law is a set of rules which seek, for humanitarian/ humanity reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.  The history dates back to the battle of Solferino when Henry Dunant gives an account of the horrific acts he saw for himself and how armed conflict brought about a lot of devastations and from his suggestions on what to be done it brought about the birth of the Red cross society plus also the Geneva Convention Geneva Convention Relative To The Protection Of Civilian Persons In Time Of War . The Convention provided for how to act during the time of conflict plus also deals with the issue to do with civilians.

International Refugee law, under the 1951   “As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 

The Convention Governing the Specific Aspects of Refugee Problems In Africa adds on another factor that is “The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”

Kenya is not left behind and in our 2006 act, we come in and add the aspect of sex.

All this said and done, the is a major component that comes into play when considering both laws and that is the “Humanity” factor, both Humanitarian law and refugee law seek to help in one way or another the civilian population who have been affected by either the issue of Armed conflict or other grievous factors as provided for under the Article 9, Convention Relating to the Status of Refugees, 1951. The Geneva Convention Relative To The Protection Of  Civilian Persons In Time Of War  comes in also to regulate the conduct during the time of war by making sure the civilians are protected, and making it illegal to commit crimes against humanity and calls them grave breaches and they include: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly 

Secondly, the existence of Humanitarian law birthed the issue of looking into the issue of Refugees. This is because after the World War 1 and World War 2, the 1951 Convention relating to the status of Refuges came into play because the crisis that had happened had led to not only the death of a lot of persons but also the Migration, this is evident from the issue of holocaust where millions of Jews had to flee to escape persecution by Hitler. That is relatable to the issue Universal Declaration on Human Rights 1948, Article 1 where it set out that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Humanitarian law preaches the issue of brotherhood and caring for each other. 

Thirdly, Humanitarian law and Refugee law work hand in hand. When the Holocaust happened some countries did not accept to take in the Jews for the fear of being attacked by Hitler if they were to accommodate them, this led to them being chased away. At that time Humanitarian law was present but the issue of accommodating Refugees had not yet come into play. That is why we say the can work together in that international humanitarian law and refugee law, can apply successively, forming a sort of continuum in terms of protection. In other words, a victim of armed conflict may be forced to leave his or her country because he or she does not obtain adequate protection from international humanitarian law, for instance in all conflicts where there are gross violations of human rights and grave breaches of humanitarian law. In such circumstances, those grave breaches constitute a substantial part of the refugee definition and become the determining factor triggering refugee protection.

Fourth factor is the Principle of distinction as proposed by Humanitarian law, where there should be distinction between the non-combatants and combatants. There should be no attacks on civilian population or objects. International Refugee law is not left behind in this, as it gives the state a responsibility to set aside a place to accommodate refugees, thus for example when Kenya is attacked Humanitarian law would prohibit the attack of Daadab and Kakuma camps.

Lastly, is the issue of persons who have committed crime, both Humanitarian Law and Refugee law do not and cannot protect those persons. An example in Humanitarian Law was the setting up of the Yugoslavia Trials, to deal with the persons responsible for atrocities committed during the Second World War. On the other hand Refugee law, denies asylum or granting of refugee status to a person found to have committed a crime. The case of Peru Vs Colombia, is also another example of the issue of International Refugee law coming in to deny a person who has committed a crime from being accommodated.

The refugee laws have been extended to every individual no matter the situation. This may include political opinion, religion, climatic changes etc. International Humanitarian Law on the other hand majorly focuses on armed conflicts and barely recognizes any type of refugee. Refugee law also governs specific aspects of refugees for example the 1957 UN Convention Relating to the Status of Refugees. International Humanitarian Law on the other hand deals with civilians at large like the Geneva Convention unlike Refugee Laws.  

HUMAN RIGHTS BASED REFUGEE PROTECTION

Human rights are the inherent rights that all people have by virtue of being human. Those rights are for every human regardless of their race, religion or societal status. These rights may include;

1. Right to life

2. Right to education 

3. Right to religion 

4. Right to liberty 

5. Right to equality

These rights are further supported as below;

Refugees go through a lot just leaving their place of habitual residence to live in a foreign and strange country. It is important to make sure that the place they are running to is safe for refugees. As such, refugees are entitled to various rights. These include;

Right to non-discrimination.

This is provided for under Article 3 of the 1951 UN Convention Relating to the Status of Refugees, where it states, “The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin”. It is very important that refugees are accepted with dignity and respect and accepted without any discrimination. They flee from a place of harsh conditions and discrimination for either their sex, race, political opinion or nationality. Refugees have a right, therefore, to not be discriminated.

Right to religion.

Article 4 provides that “The Contracting States shall accord to refugees within their territories treatment at least as favorable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children”. The contracting states should accept the religion of the refuge and let him practice it in private and public and the same be transmitted to his children.

Those are just a few. Rhona K. Smith in his book outlined a few more rights afforded to refugees. These include;

i. The right to life 

ii. Freedom from torture; cruel, inhuman, and degrading treatment or punishment 

iii. The right to liberty of person 

iv. Equality before the law-the right to a fair trial 

v. The right to self-determination 

vi. Freedom of expression 

vii. The right to work 

viii. The right to education and human rights education 

ix. Indigenous peoples’ and minority rights 

x. Rights for specific vulnerable people  

Article 5 of the 1951 UN Convention Relating to the Status of Refugees provides that “Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention”. In Kenya for example, Section 16 of the Refugee Act 2006 provides for the rights of refugees. Section 16(1) (b) provides that every refugee shall be subject to all laws in force in Kenya. This makes every refugee in Kenya inherit rights from Chapter 4 of the Constitution of Kenya 2010. These rights are subject to protection and enforcement as provided for under Article 21 and 22 .

The United Declaration on Human Rights provides for the rights of people and are applicable to refugees. 

PROTECTION OF REFUGEES WITH SPECIAL NEEDS

There are many refugees worldwide. All these refugees come in different sort of individuals. It is important to ensure that every refugee is protected. Therefore, there are laws created to ensure that this happens. These special needs individuals include;

Women and children. Section 17 of the Refugee Act 2006 provides that the refugee camp officer have a duty to protect and assist vulnerable groups’ women and children. To protect the dignity of women. Section 22 provides that women should conduct women searches. Efforts have also been made also to protect children and make sure that they stay with their parents. Section 23 provides that children are to be accorded protection by the commissioner whereby he should ensure that children are kept together with their parents. Where they have no parents permanently or temporary, the commissioner should make sure that they are accorded protection as any other child.

LGBTI. The Universal Declaration of Human Rights under Article 1 provides that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. As such this group are accorded protection wherever they go for it is one of the refugee rights that they be treated equally and with dignity.

High Risk Individuals. The UNHCR have termed these individuals as refugees at heightened risk. The UNHCR uses The Heightened Risk Identification Tool to determine who a high-risk refugee is. The identification of individuals who are at heightened risk should be done by considering their exposure to trauma, hardship, or other condition recorded in the risk category section of this tool. To do this they use structured interviews, checklist and Ad-hoc. Such high-risk individuals include people like the disabled, people with diseases and elderly. If found a high risk, the refugee is entitled to special protection. 

CONCLUSION

The relationship between Refugee Law and Humanitarian Law is important in understanding refugee laws. Each have substantial laws and each govern international borders. Every refugee has a right as a result and is protected.

WEEK 12: CASE LAW & ROLE OF COURTS REFUGEE PROTECTION

Benson Kipchirchir: BLAW/2019/42210 and Emmanuel Owino: BLAW/2019/42659

ROLE OF COURTS IN REFUGEE PROTECTION

Introduction 

Courts performs judicial functions in resolving disputes and protecting fundamental rights and freedoms. A refugee is bound by the laws of Kenya and in that respect they also enjoy the protection provided for.

Establishment of Courts 

The courts exercise the judicial authority donated by the Constitution under Article 159. This is the sovereign power of the people of Kenya, which has been delegated, and to be exercised by the Judiciary and independent tribunals.

Superior courts

The judiciary is structured in a hierarchical system, with superior courts being the Supreme Court, the Court of Appeal, the High Court, the Employment and Labour Relations Court and Environment and Land Court. 

Supreme Court

The Supreme Court is the apex court in Kenya, with jurisdiction to handle matters, which are;

Exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.

Appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal as prescribed by national legislation.

Appeals shall lie from the Court of Appeal to the Supreme Court

As of right in any case involving the interpretation or application of this Constitution;

In any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved.

Court of Appeal

The court of Appeal has jurisdiction to hear appeals from the High Court; and any other court or tribunal as prescribed by an Act of Parliament.

High Court

The High Court on the other hand has a wide purview of jurisdiction;

Unlimited original jurisdiction in criminal and civil matters;

Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed;

Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of

The question whether any law is inconsistent with or in contravention of this Constitution;

The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

A question relating to conflict of laws under Article 191; and

Any other jurisdiction, original or appellate, conferred on it by legislation.

Subordinate courts

The subordinate courts are established under Article 169, and constitute; (a) the Magistrates courts; (b) the Kadhis’ courts; (c) the Courts Martial; and (d) any other court or local tribunal as may be established by an Act of Parliament. 

The constitution of magistrates’ court is enshrined in the Magistrates’ Courts Act NO. 26 of 2015. Section 5 of the said Act, provides that, “A magistrate’s court shall be subordinate to the High Court and shall be duly constituted when presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate.”

The Magistrate’s court shall have criminal jurisdiction to exercise as conferred on it by (a) the Criminal Procedure Code (Cap. 75); or (b) any other written law.

The Magistrate’s court shall as well have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed

Twenty million shillings, where the court is presided over by a chief magistrate;

Fifteen million shillings, where the court is presided over by a senior principal magistrate;

Ten million shillings, where the court is presided over by a principal magistrate;

Seven million shillings, where the court is presided over by a senior resident magistrate; or

Five million shillings, where the court is presided over by a resident magistrate.

Independence of the Court

The judiciary is an Independent organ of the government and shall be subject only to the Constitution and the law. The judicial officers should not be subject to the control or direction of any person or authority.  Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

The 1985 United Nations Basic Principles of the Independence of the Judiciary, provides a framework under Article 1-7, particularly it refers to the following principles;

The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

Individual judges similarly have obligations under the Bangalore Principles of Judicial Conduct 2002, they are intended to establish internationally accepted standards of ethical conduct of judges in order to realise the judicial independence necessary for the maintenance of the rule of law. International principles are also consistent with the domestic principles, which are contained in the Judicial Service Code of Conduct and Ethics. These principles include; 

A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate.

A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions which the judge is obliged to make independently.

A judge shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary.

A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence.

Refugee protection

Isaac Lenaola submits that refugees are entitled to human rights protection just like every other person. Even more, they deserve special protection as vulnerable members of society residing in foreign country

Refugee protection can be addressed from four perspectives; Legal protection; physical protection; case management protection and durable solution2.

Legal protection

This begins with receiving and registering these individuals with the relevant state authorities or UNHCR. Access to registration is the first instrument that guarantees that the individual is under the responsibility of the registering authority and gives them legal stay within the territory. In Fysha Abrha Redae & 2 others v Cabinet Secretary Ministry of Interior & Coordination & another [2015] eKLR. The three Applicants were each separately charged with the offence of being unlawfully present in Kenya contrary to Section 53(1)(j) as read with Section 53(2) of the Citizenship and Immigration Act of 2011. The trial court convicted them on their own plea of guilty. On appeal, the High court overturned the decision and set them free stating that, 

“From the facts of the case it is clear that the Applicants entered the country purely with the intention of being refugees. Their eligibility status would then be a matter for determination by the Department of Refugee Affairs or the United Nations Higher Commissioner for Refugees (UNHCR). The 30 days window given to them by the Refugee Act within which they should have registered as refugees had not lapsed. Effectively, their arrest and arraignment in court was premature. Although by virtue of Section 13 of the Act, the Applicants had not yet made known their intention to be refugees, it is worth noting that they were arrested on the date they entered into the country. They had not therefore, had sufficient time to appear before the Commissioner of Refugee Affairs to make known their intention.”

Refugee Status Determination (RSD): This is where international refugee law instruments are applied to determine whether asylum seekers should be granted the refugee status based on reasons why they left their country of origin.

Physical Protection

This entails physical needs of the refugee and asylum seekers. It covers accommodation, shelter, food basic hygiene and sanitary standards.

Case Management Protection

Protection does not end with entry to refugee camp or acquisition of legal documents stamped by UNHCR.  Case management handles refugee welfare in terms of issues like Gender-Based Violence, health and education and human rights protection.

Durable solution

Assuming the situation in country of origin improves, the refugees can return home under voluntary repatriation. Other options entail integration into the life of host country and resettlement where they are moved to any other country other than country of origin or host nation. The role of UNHCR lies in assisting Government to repatriate or assimilate refugees into local communities. The overarching motive of durable solution is to provide capacity for self-reliance.

Role of Court under the Refugees Act 

Once a refugee has applied for Refugee status to the Commissioner, and in instances where he has rejected the application, the applicant has an option to appeal to the Appeal Board within 30 days, which can either confirm or set aside the decision of the Commissioner. Any person aggrieved by the decision of the Appeal Board may within twenty-one appeal to the High Court.   

The High Court has jurisdiction, original or appellate, conferred on it by legislation. The Refugees Act, 2006, therefore has conferred the High court with appellate jurisdiction to hear and determine any dispute regarding a rejected application for Refugee status, made to the Commissioner for Refugee Affairs. 

Role of the court under the Constitution

The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.  

Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. In addition to a person acting in their own interest, court proceedings may be instituted by

a person acting on behalf of another person who cannot act in their own name;

a person acting as a member of, or in the interest of, a group or class of persons;

a person acting in the public interest; or

an association acting in the interest of one or more of its members

Case Law

Agnes Nemakonde Galawu v Minister of State for Immigration and Registration of Persons & Another [2012] eKLR (Petition 188 of 2012)

Issue

The petitioner Agnes Nemakonde moved to court following a culmination of events within and without the country to seek protection against being rendered stateless. She sought orders to declare sections of Kenya Immigration & Citizenship Act 2011 inconsistent with the Constitution of Kenya 2010.

Nemakonde was originally a Zimbabwean who due to political conflicts was rescued to the UK. In October 2011, the UK deported her to Kenya. Kenya rejected her on account that she was not a citizen. And sent her to Malawi. In turn, Malawi transited her to South Africa on grounds that some of her family members resided there. South Africa rejected her and returned her to Malawi who then returned her to Kenya.

Rule

While in the UK she sought asylum but her application was rejected by the Secretary of State for Home Affairs. This prompted her to appeal to Immigration Tribunal. The Tribunal rejected her plea and declared as follow in their ruling:

“Although born in Harare, her Malawian passport is genuine and therefore appellant is a citizen of Malawi…Unless well-founded fear of persecution in Malawi is claimed, the appellant cannot be entitled to international protection.”

Back to Kenya, Nemakonde was charged with being in Kenya unlawfully and pleaded guilty. She was given a one-year sentence with an option of fine of Kshs 55,000. A Good Samaritan bailed her after a while. She was released in January 2012 but placed on Notice to Prohibited Immigrant with 21 days to leave Kenya.

In April 2012 she was re-arrested and taken to Langata Women’s Prison (LWP) under ministerial directive founded in sec 43(2)(b) which provided that she be held in custody for 6 months as her removal was being processed.

In July 2012, UNHCR conducted an assessment of her refugee status but she failed to meet conditions for inclusion under Refugee Act, 2006. Notably, she also withdrew her application for asylum protection with Kenyan government; a situation which UNHCR submitted risked rendering her “stateless”.

Her petition challenged sec 43 of Kenya Immigration & Citizenship Act 2011 for having not specified duration of confinement as being inconsistent with limitations to freedom under Article 24(2). She also sought review of sec 57 of Kenya Immigration & Citizenship Act 2011. She averred that Langat Women Prison was not by law gazette as confinement area.

The State responded by citing that under sec 33(1) she was a prohibited person and therefore inadmissible for protection. It was also submitted the Minister had powers under sec 43 to commence actions regarding her removal out of the country.

Application

The Court noted that no dispute or appeal had been lodged to controvert the Court findings that declared her presence in Kenya illegal. As such, the Court upheld the decision for her removal. The Court further agreed with the Minister for Immigration in the meaning of sec 43 since it gave him powers to determine where a deportee could be held pending execution of removal orders. Langata women prison was within legal ambit. The Court faulted her decision to withdraw application for asylum as sought on her behalf by UNHCR which could have afforded her status of “person of concern.”

Conclusion

The Court ruled in favour of her continued custody pending her appeal process. However, the Court ruled that she be kept in segregated facilities since her situation did not fit criminal offenders committed to sentence of custody and therefore her dignity deserved special protection.

Kituo Cha Sheria & 8 others v Attorney General [2013] eKLR (Petition No 19 of 2013)

Preliminary Issue

The petitioner moved to Court to quash Notice by the Commissioner for Refugee Affairs that stopped reception and registration centres for refugees and asylum seekers by limiting the exercises to Daadab only for all Somalia refugees and Kakuma camp for other non-Somalia nationalities.

The Notice had further directed UNHCR and other parties dealing in direct services to asylum seekers/refugees in urban areas to transfer their services only to the two designated areas.

Ruling

The Judge issued conservatory orders in view of Kenya’s international obligations with respect to refugees and noted that refugees are vulnerable persons who deserve protection. The Order prohibited any agent of Government from commencing any action in pursuance of the Notice until substantive issues had been addressed competently by the Court.

Issue

Petitioner 1 Kituo cha Sheria had filed preliminary case as Petition 19 of 2013 which was consolidated with Petitioners 2 to 8 due to similarity of facts and substantive issues in law. The respondent was listed as the AG.

The petitioners challenged Government Directive issued through Department of Refugee Affairs (DRA) which ordered that all services relating to refugees be relocated to the two camps in Daadab and Kakuma respectively. The directive stated that Internal Security organs be enjoined in mobilizing the refugees to camps away from all urban centres to the prescribed areas.

The petitioners argued that this action amounted to infringement of freedom of movement to which refugees were entitled; It subjected them to indignity contrary to Article 28 and also contravened expeditious and fair administrative action as contemplated in Article 47(1) of the CoK.

The merits by the petitioners 2 to 8 were all accorded hearing. Among them, one was a student who was in 2nd year of study. Another petitioner was a university lecturer in the School of Law and argued that the relocation would deprive him of his livelihood for which he had worked under strenuous circumstances. Another petitioner was an elderly person who required special medical care due to advancing age. In all cases, the petitioners had been granted UNHCR Mandate Pass. 

Rule

The Court in its findings found sec 17 of the Refugee Act 2006 to be merely procedural in facilitating administration of refugee affairs in the context of designated camps. As such, the camps could not be used to deprive freedom of movement. The Court reasoned that the provisions in the Bill of Rights under Article 24 could not be arbitrarily taken away by Directive without qualification.

The Court relied on the Article 33(1) of the Convention of 1951 which explicitly prohibited any state from expelling or returning a refugee where his life or freedom would be threatened on account of race, political opinion, religion or nationality.

The Court contended that the forceful removal and relocation amounted to constructive expulsion by forcing the refugees to return to their country of origin against the principle of non-refoulement. The Judgment relied on the case of Randu Nzai v Internal Security Minister 2012 to declare that fundamental freedoms cannot be abrogated or proscribed without merit. In the instance of this Petition the Court held that there was no demonstrable proof that the refugees in urban centres constituted a source of security threat.

Conclusion

The Court held in its final ruling that the action by DRA was unfair administratively as it contravened sec 18 of the non-refoulement. There was also ruling to the effect that these actions repressed the dignity of the refugees protected under Article 28. The Court took note of the fact that refugees had been subjected to trauma and hardship and to secure livelihood as was the case with 2nd Petitioner and 3rd petitioner and the health issues of the 7th petitioner, any severe and drastic actions undermined their dignity and right to a quality life.

The order was quashed with no declaration as to cost.

Conclusion

The role of the court therefore is to enforce, protect and preserve the right of individuals. Every individual has the right on their own behalf and in a representative capacity to approach the court. 

Independence of the Judiciary is crucial. The judiciary needs to be accountable and uphold the law and the fundamental rights of each and every individual. From the analysed cases above, it is clear that the courts have extended the rights enshrined in the constitution to Refugees, because of their human nature that they retain whatsoever the circumstances. 

REFERENCE

The Constitution of Kenya, 2010

The Magistrates’ Courts Act No. 26 of 2015

The Refugees Act, No. 13 of 2006

The UN Bangalore Principles of Judicial Conduct 2002

The 1985 United Nations Basic Principles of the Independence of the Judiciary

The 1951 UN Convention Relating to the Status of Refugees 

Agnes Nemakonde Galawu v Minister of State for Immigration and Registration of Persons & Another [2012] eKLR

Fysha Abrha Redae & 2 others v Cabinet Secretary Ministry of Interior & Coordination & another [2015] eKLR

Kituo Cha Sheria & 8 others v Attorney General [2013] eKLR (Petition No 19 of 2013)

Isaac Lenaola. The Role of African Courts in Promoting Rights. International Journal of Refugee Law Vol 31 Issue 2-3 June/Oct 2019: Oxford University Press

WEEK 14: REFUGEE MANAGEMENT, PRACTICE & POLICY

Oduwo Okello Ochieng Paul – BLAW/2019/42742

Refugee Management, practice and policy, Categories of Refugees and Management of Urban and Camp refugees

Kenya recognizes two classes of refugees:

Prima facie refugees and statutory refugees. All asylum seekers go through an initial registration. At this point in the process, they are screened for their eligibility to seek asylum and to obtain accelerated processing. This is followed by an interview.

Statutory Refugee is provided for by section 3(1) (a) of the Refugee Act 2006 which provides that:

(1) A person shall be a statutory refugee for the purposes of this Act if such person—

(a) owing to a well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

A stateless Refugee is provided for under section 3(1)(b) which states that not having a nationality and being outside the country of his former habitual residence, is unable or, owing to a well-founded fear of being persecuted for any of the aforesaid reasons is unwilling, to return to it.

Prima facie Refugee is recognized under Section 3(2) which provides that A person shall be a prima facie refugee for purposes of this Act if such person owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

The government implements a refugee encampment policy: once refugees have gone through the status determination procedures, they are obliged to reside in a camp while awaiting a durable solution. However, for a myriad of reasons (including insecurity in the camps, health problems and maladjustment to camp life), many refugees defy this requirement and make their way to urban areas. It is estimated that 30-50,000 refugees/asylum seekers live illegally in urban areas.

Asylum seekers are required to undergo status determination in Nairobi and during this time they are not under UNHCR protection. They suffer from lack of social assistance, harassment and extortion by law enforcement agents in addition to hostility from members of the public.

The Urban Refugee Policy was adopted in September 2009 in response to recognition that a growing number and proportion of the world’s refugees are found in urban areas; the awareness on UNHCR’s part that refugees should be able to exercise freedom of movement; and the negative consequences of long-term encampment. UNHCR considered it essential to reconsider the organization’s position on the issue of refugees in urban areas and to adopt a more constructive and proactive approach than had been the case in the past. The Urban Refugee Policy is based on the principle that the rights of refugees and UNHCR’s mandated responsibilities towards them are not affected by their location, the means whereby they arrived in an urban area, or their status or lack thereof in national legislation.5 The policy recognizes that its objectives can only be achieved through effective cooperation, especially with the governments and city authorities that host urban refugees.

Thus, the two overarching goals of the policy are to: Œ

Ensure that cities are recognized as legitimate places for refugees to reside and exercise the rights to which they are entitled. 

Maximize the protection space available to urban refugees and the humanitarian organizations that support them.

Urban Refugee Policy Objectives

The Urban Refugee Policy identifies 12 key objectives that the policy intends to attain and outlines protection strategies that country operations will employ to achieve them. Below is a brief summary of each of the objectives.

Providing reception facilities: UNHCR will establish accessible reception arrangements with appropriate facilities, efficient appointment and referral systems and the provision of relevant information.

Registration and data collection: UNHCR will support the registration and collection of data on all urban refugees, not just those in capital cities, and will strive to disaggregate the data in accordance with Age, Gender and Diversity Mainstreaming (AGDM) principles. Registration is primarily a state responsibility, but in many instances has been left to UNHCR. 

Ensuring that refugees are documented: UNHCR will ensure that documents attesting to their identity and status are provided to refugees. This is primarily the responsibility of the state, but in situations in which the authorities are unable to do so, UNHCR will issue its own documents to refugees. This includes birth registration, marriage and death registration. 

Determining refugee status: In situations in which states do not undertake Refugee Status Determination (RSD) because they have not signed the 1951 Convention or its 1967 Protocol, or where national asylum procedures are not fully functioning, UNHCR continues to determine refugee status in accordance with its mandate. In doing so, UNHCR will establish transparent and consistent RSD procedures. 

Reaching out to the community: UNHCR will adopt a variety of different outreach methods to reach refugee communities including those individuals with specifi c protection concerns, such as women, girls and children.

Fostering constructive relations with urban refugees: UNHCR will establish constructive dialogue and positive partnerships with refugees in urban areas, this includes application of AGDM principles, use of the Community Based Approach and multifunctional teams (MFT) composed of UNHCR staff with varied expertise, e.g., a Protection Officer, Health Officer and Education Officer.

Maintaining security: UNHCR will seek to avert security incidents at UNHCR premises by working with refugees and their community representatives in a spirit of understanding and cooperation. This will be complemented with appropriate security and contingency plans, effective training of guards and capacity development for police and/or other security services.

Promoting livelihoods and self-reliance: UNHCR will support the efforts of urban refugees to become self-reliant—to the extent possible in respect of national laws—and will engage and advocate with authorities and other partners to realize that.

Ensuring access to healthcare, education and other services: UNHCR will pursue a three-pronged strategy of:

advocating for refugees to have access to public services;

monitoring refugees’ utilization of health, education and social welfare services, with particular attention to those who are most vulnerable and have specifi c needs; and

augmenting the capacity of existing public and private services. •

Meeting material needs: When self-reliance is not a viable objective, UNHCR, in collaboration with partners, will seek to meet the needs of urban refugees by other means including collective accommodation, subsidized housing, food assistance, non-food items and cash transfers.

Promoting durable solutions: UNHCR will work for the early attainment of durable solutions for all refugees and will strive to ensure that all refugees within a given country and region shall enjoy similar standards of treatment and have equal access to durable solutions opportunities, including: voluntary repatriation, local integration or resettlement.

Freedom of Movement: UNHCR will strive to ensure that refugees who travel to urban areas are provided with adequate documents and will advocate with the authorities and security services to ensure that they are not penalized for travelling and that they are allowed to remain in an urban area for as long as necessary.

Freedom of movement is the rule under international law and restrictions should be the exception, though some restrictions – such as the location of refugees away from the border – respond to protection concerns.

UNHCR should encourage the government to allow freedom of movement, and should promote the refugees’ right to work and access to national services, wherever possible. In consultation with the government, UNHCR may, however, limit the location where UNHCR assistance is provided. Where refugees are assisted in settlements or camps outside urban areas, UNHCR should provide assistance in urban areas to refugees from the same country of origin only with the agreement of the government and if there are compelling reasons to do so. 4. Such compelling reasons could include: specific protection or security problems faced by an individual or his or her family in the settlement or camp; prearranged movement to an urban area for the duration of health care or for reunion with family members legally resident in the urban area; and assistance in achieving a durable solution, where this is possible in the urban area.

Management of Refugees Camps

Camp coordination and camp management (CCCM) is the name given to standardized coordination mechanisms that refugee operations apply through the Refugee Coordination Model and IDP operations apply through the CCCM Cluster.

CCCM mechanisms ensure that services are delivered efficiently and that displaced people are protected in all types of communal displacement settings in rural or urban environments; whether they live in planned camps, spontaneous self-settled informal sites, collective centres, reception centres or transit centres.

CCCM supports other sectors in seeking durable solutions while trying in the interim to efficiently and effectively uphold standards and the rights and dignity of displaced populations.

The standard CCCM model foresees three coordination roles plus a community governance structure that represents those who have been displaced. Each role has specific responsibilities.

To avoid confusion and gaps, it is vital to agree and clearly distinguish the responsibilities of particular actors. The three main roles are:

Camp Administration (CA). This role refers to the functions carried out by State authorities responsible for providing protection and assistance to displaced persons on their territories. It relates to the oversight and supervision of activities, including security. State responsibilities are non-transferable. The CA is usually represented at camp level.

Camp Coordination (CC). UNHCR usually assumes this role in refugee emergencies and complex, conflict-related IDP emergencies, and it includes both strategic and operational coordination. A CC is responsible for designing strategy, setting standards, contingency planning, and information management. Its primary objective is to create the humanitarian space necessary for the effective delivery of protection and assistance to displaced people. To develop exit strategies and more durable solutions, it liaises closely with local actors, including civil society organizations. The CC is functioning at inter-camp level.

Camp Management (CM). An NGO partner or a national or local authority usually fills this function. Where capacity is limited, UNHCR may support a CM or take on the role itself. ACM coordinates and monitors the delivery of, and access to, services and protection to displaced people, and ensures maintenance of infrastructure. It is also responsible for community participation by setting up representative committees. These enable the displaced communities to exercise their right to participate in decision-making and to influence the design and delivery of humanitarian programs at all stages. 

Camp Management (CM). An NGO partner or a national or local authority usually fills this function. Where capacity is limited, UNHCR may support a CM or take on the role itself. ACM coordinates and monitors the delivery of, and access to, services and protection to displaced people, and ensures maintenance of infrastructure. It is also responsible for community participation by setting up representative committees. These enable the displaced communities to exercise their right to participate in decision-making and to influence the design and delivery of humanitarian programs at all stages. 

The main roles and functions of the CCCM can vary according to the institution that is responsible and the circumstances in which it operates. What matters is to cover all CCCM functions, making sure that the needs of displaced people are met and that there are no gaps or overlaps in responsibility or response. When engaging outside camps it is crucial to work closely with and support existing and functional local structures in relation to information, communication, coordination and monitoring of services to the displaced populations.

Camp Coordination and Camp Management supports the following protection objectives:

To promote a rights- based approach, Coordinated interventions should enable displaced persons to realize their rights.

To establish a community-based approach. Community governance structures and participatory mechanisms should ensure that women, men, boys and girls of all ages and diversities, including, persons living with disabilities, persons living with HIV/AIDS, and persons from different ethnic and religious groups, can contribute to their own protection.

To promote non-discrimination. CCCM promotes full and equal respect for the rights of all persons, recognizing that individuals may have particular needs and face particular inequalities and risks.

Camp Coordination and Camp Management practices should:

Be cross-sectoral. CCCM is inherently cross-sectoral. It should work in close partnership with other actors and organisations.

Observe humanitarian principles. The principles of humanity, neutrality, impartiality and independence must guide all interventions.

Do no harm. All CCCM interventions should be monitored and evaluated to ensure that they do not cause harm to displaced populations or host communities.

Be accountable to affected populations (AAP). In all its activities, a camp management agency must demonstrate accountability in its activities to displaced persons and communities, as well as to other stakeholders or communities, including service providers, the camp administration, donors and security providers.

Respect principles of partnership. A results-based approach that promotes equality, transparency, responsibility and complementarity is essential, both to sustain trust and ensure that humanitarian partnerships serve the needs of displaced persons effectively.

Seek durable solutions. From the start, interventions and assistance should be linked to strategies to achieve early recovery and durable solutions.

REFERENCE

Refugee Act 2006

1951 Refugee Convention

OAU Convention governing Specific Aspects of Refugee Problems in Africa

WEEK 15: ROLE OF ACTORS IN PROTECTING REFUGEES

Cynthia Atieno Barasa: BLAW/2019/42298 and Dennis M. Katiku: BLAW/113/00605

INTRODUCTION.

A Refugee is an individual who needs protection in many aspects, including safety from being returned to danger and access to fair and efficient asylum procedure. Protection is commonly defined as “all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, namely human rights law, International humanitarian law and refugee law”. Protection covers all activities and projects implemented by the different organizations or agencies working with refugees. Protection includes both physical protection and legal protection. 

Protection of refugees is primarily the responsibility of the host State and its agents or partners. The 1951 Refugee Convention and the 1967 Protocol form the main International legal framework for the protection of Refugees. Legal protection starts from the moment of receiving an individual and registering him/her with the relevant State authorities or even by the UNHCR. Once an individual is admitted into the State territory, the State has an international obligation to provide physical protection to that individual. Physical protection covers accommodation and shelter in a secure place. Other aspects of physical protection include provision of physical needs such as food, sanitation and other basic human needs.

Refugees can face a variety of protection problems in Kenya that would trigger an appropriate response on the part of the government or UNHCR. Women and children, who form almost 80% of the total refugee population are considered as the most vulnerable persons of concern and are prioritized under the physical protection programs. Refugee women are particularly vulnerable and a significant number of them are victims of gender based violence even within the refugee camps. Refugees often face police harassment, unfair and indiscriminate detention and extortion by State actors. Unaccompanied minors (children separated from both parents and from anybody who is responsible for them by law or custom) and separated children (separated from both parents but under the care of a responsible adult) also need physical protection and whenever possible intervention to identify foster care arrangements and to provide for their immediate needs.

Actors in Refugee protection

The actors in the protection of refugees can broadly be classified into two;

State actors.

Non – State actors.

ROLE OF ACTORS IN PROTECTING REFUGEES.

The Government of Kenya.

United Nations High Commissioner for Refugees (UNHCR).

Civil Society.

GOVERNMENT OF KENYA.

The government of Kenya and its agencies are the State actors in the protection of refugees. The authority to deal with matters relating to refugee management is exclusively in the hands of the national government.

General Background.

Kenya hosts a large asylum-seeking and refugee population.  This is due largely to the country’s location in a conflict-prone area.  For example, neighbouring countries like Somalia and South Sudan have experienced ongoing civil wars that have caused internal and external displacement of large segments of their population.  According to the United Nations High Commissioner for Refugees (UNHCR), there were a total of 625,250 refugees and asylum seekers in the country in 2014.This figure increased to 650,610 in 2015.The majority of these people (close to 70%) were Somali citizens, while persons from South Sudan made up around 20% of the asylum-seeking and refugee population. The remainder included Ethiopians, Congolese, and around 20,000 stateless persons.

Refugees in Kenya primarily reside in the Dadaab refugee complex (which is in Garissa County and consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios) and the Kakuma Refugee Camp located in Turkana County. In addition, as of April 2014, there were reportedly over 50,000 urban refugees in Nairobi.

Kenya is signatory to a number of international treaties applicable to individuals seeking asylum and protection.  For instance, it acceded to the;

1951 United Nations Convention Relating to the Status of Refugees on May 16, 1966, and its 1967 Protocol in 1981. 

Kenya is also a state party to the 1969 African Union (AU) (formerly known as the Organization of African Unity, OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, which it signed in September 1969 and ratified in June 1992.

Kenya acceded to the 1984 The 1984 Cartagena Declaration on Refugees. Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment in February 1997.

Of particular relevance to refugee issues is a provision in the Convention on non-refoulement, which states that a State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

However, Kenya only recently put in place a national legal framework governing refugee matters and assumed partial responsibility for the refugee status determination (RSD) process.  It did this when it took a step to implement its obligations under international law by enacting the Refugees Act in 2006, which took effect the next year, and its subsidiary legislation, the Refugees (Reception, Registration and Adjudication) Regulations, in 2009 (Refugees Regulations). Among other things, the Act established the Department of Refugee Affairs (DRA), whose responsibilities include receiving and processing applications for refugee status. 

Prior to that, refugee matters were governed under the now repealed Immigration Act and Alien Restriction Act, and RSDs and other matters relating to refugee management were delegated to the UNHCR. This practice continued long after 2006.  It was only in 2014 that the DRA assumed some RSD functions, mainly endorsement of RSD determinations made by the UNHCR and issuance of notifications of recognition to refugees that meet the required criteria under the Refugees Act. The UNHCR is currently in the process of transferring all RSD functions to the DRA, and this transfer was scheduled to be finalized by the beginning of 2016.

This report describes key aspects of the Kenyan refugee legal framework (the Refugees Act of 2006 and the 2009 Refugees Regulations) and recent legal developments relevant to the management of the asylum-seeking and refugee population in Kenya.

Key provisions Under Refugees Act 2006.

A.  Definition of Refugees.

The Refugees Act recognizes two classes of refugees: statutory and prima facie refugees. The former category applies to a person who has “a well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion.  The latter relates to a person who, “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his country of origin or nationality is compelled to leave his place of habitual residence.”  Under the Act, asylum is “shelter and protection granted by the Government to persons qualifying for refugee status,” while an asylum seeker is “a person seeking refugee status.” 

The Minister of Interior and Coordination of National Government is empowered to declare a class of persons prima facie refugees and to amend or revoke such declaration. The most recent example of a demonstration of this authority came in June 2014 when, acting on humanitarian grounds, Interior Minister Joseph Ole Lenku declared as prima facie refugees South Sudanese persons fleeing the civil war in their country. Kenya is said to have granted the same protection to persons from South and Central Somalia. 

B. Departments of Refugee Affairs.

The Refugee Act 2006 establishes a Department of Refugee Affairs. These are;

A public office responsible for all administration matters (the Ministry of Interior and Coordination) concerning refugees in Kenya and it is mandated to coordinate activities and programmes relating to refugees. The office of the Commissioner for Refugee Affairs, an office in the public service is created vide section 7(1). This Commissioner for Refugee Affairs shall be the head of the Department of Refugee affairs.  

The Commissioner is Secretary to the Refugee Affairs Committee. He or she is to coordinate all measures necessary for promoting the welfare and protection of refugees and advise the minister thereon. The Commissioner for Refugee Affairs is mandated to formulate policy on refugee matters in accordance with International standards.29 The Commissioner for Refugee Affairs is supposed to ensure in liaison with United Nations Agencies and any other institutions the  provision of adequate facilities and services for the protection, reception and care of refugees within Kenya; The Commissioner is also supposed to promote durable solutions for refugees granted asylum in Kenya;30 receive and process applications for refugee status;31 manage refugee camps and related facilities,32 and solicit funds for refugee assistance programmes33 inter alia.  

The office of the Commissioner for Refugee Affairs is thus laden with heavy responsibility. The writer is of the view that the holder must be a person who is committed to upholding the human rights of refugees. He is in charge of receiving and taking care of the needs of refugees. He is also in charge of promotion of durable solutions and refugee assistance programmes. It is hoped that this institution will carry out its mandate and ease suffering of refugees. The refugee rights are now legal rights under a Kenyan statute. They should be upheld and protected within this legal framework. The lack of a legal and institutional framework for the regulation of refugee affairs can no longer be used as an excuse to deny them of their rights.  

The Refugee Affairs Committee is established under section 8(1) of the Act. The Committee is supposed to assist the Commissioner, in matters concerning the recognition of persons as refugees for the purposes of the Act. It has a wide membership consisting of representatives from various ministries including:  

The ministry responsible for provincial administration and internal security.  

The ministry responsible for refugee affairs.  

A representative from the Ministry of foreign affairs.  

A representative from the ministry responsible for local government.  

A representative of the Attorney General.  

A representative for the Ministry of health.  

A representative of the ministry responsible for Finance and Planning.  

A representative from the Department of migration.  

A representative from the department of police.  

A representative from the National Security Intelligence Service.    

A representative from the Department of National Registration Bureau.34. 

 This wide representation in the Refugee affairs committee can serve to ensure that refugee rights are respected. A situation where a single Ministry or person makes decisions regarding whether or not refugees are to be allowed into Kenya or are to be granted asylum is no longer tenable. This can only be good for the refugees. Decisions made by this committee where various government departments are represented would consider financial, health and security implications of decisions made in respect of refugees. This is vital as the interests of other Kenyans also have to be taken into account.  

 Section 8 (4) provides that at least one third of the members of this committee shall be women. The inclusion of women in governance issues is in the writers view a positive development. Their views should be taken on board considering that a sizeable number of refugees are women. It is arguable that their issues can only be fully understood by fellow women. The Refugees Affairs Committee shall also include a representative from the host community and one member from the civil society for the purpose of assisting and advising the Committee. This broadened representation by diverse persons can ensure in the writers’ view that a wide range of opinions are taken into account before decisions are made. 

The Act establishes a Board known as the Refugee Appeal Board to consider and decide appeals under the Act. Any person aggrieved by a decision of the commissioner under the Act may appeal to the Appeal Board within 30 days of receiving the decision.37 An appeal against the decision of the Appeal Board lies to the High Court. The Appeal Board is free to regulate its proceedings as it deems fit.39 It is hoped that hearings by the board will conform with the tenets of natural justice and the constitutional right to a fair hearing.

Section 11 makes provision for refugees entering Kenya whether lawfully or otherwise. If they wish to remain in Kenya as refugees, they are to make their intentions known by appearing before the Commissioner personally immediately upon entry into Kenya. The mere illegal entry shall not cause a person to be declared a prohibited immigrant, detained or penalised in any way (except in cases where he fails to report to the Commissioner as provided in section 11 (1). This section will in the writer’s view save refugees from the ordeal they go through in the hands of Kenya police and the criminal justice system. We have situations where refugees are rounded up, locked up in police cells and arraigned in court for the offence of being in Kenya illegally. The provisions of section 11 should stem this inhuman trend.

Section 13 of the Act should be a welcome relief to those who have been charged under the 

Immigration Act (Cap 172) and the Aliens Restriction Act (Cap 173). It provides that: Notwithstanding the provisions of the Immigration Act or the Aliens Restriction Act, no proceedings shall be instituted against any person or any member of his family in respect of his unlawful presence within Kenya; 

 (a)  if such a person has made a bona fide application under section for recognition as a refugee, until where appropriate, such a person has had an opportunity to exhaust his right of appeal under that section; or   

  (b)  if such person has become a refugee. 

The stay of proceedings will go a long way in alleviating the suffering of refugees who hitherto used to fall foul of the law immediately they stepped into Kenyan soil.  There is a need to educate the provincial administration, local communities and the police with a view to making them aware of this provision. Compliance with the law by the police and the department of immigration is vital if refugee rights are to be fully realised and enjoyed.  

Section 6 provides that every recognised refugee and every member of his family in Kenya shall be entitled to the rights and be subject to the obligations contained in the international conventions to which Kenya is a party.  Kenya is a signatory to the Convention Relating to the Status of Refugees and other conventions described as International Refugee Instruments in this paper. The rights enshrined in these conventions and the obligations spelt out therein are applicable in Kenya.

Refugees living in Kenya are deprived of most of these rights provided under the Conventions relating to the status of refugee. We submit that they are entitled to those rights under the Refugees Act 2006. The government of Kenya pursues a policy (or lack of it) where refugees are encamped in remote areas. This practice of encampment is ostensibly under the Aliens Restriction Act, Chapter 173 of the Laws of Kenya. The Institutional framework set up by  the Refugees Act 2006, it is hoped, will ease the burden of coordinating refugee assistance, a burden which is current borne by the UNHCR and the International Committee of the Red Cross.

Section 17 of the Refugees Act sets up the office of a Refugee Camp officer for every refugee camp. His duties include inter alia ensuring that the camps are managed in an environmentally and hygienically sound manner; coordinate the provision of overall security, protection and assistance for refugees in the camp; protect and assist vulnerable groups, women and children49 and; ensure the treatment of all asylum seekers and refugees in compliance with national law.  

The setting up of The Office of Refugee Camp Officer in the writer’s view will ensure that the camps are well run and the rights of the refugees which include environmental rights) are respected. It is in the writer s view a positive development which, if well utilised can ensure the rights of refugees are respected. A lot will however depend on the attitude of the refugee camp officer and his or her commitment to refugee and human rights.  

C. Non Refoulement.  

The principle of non- refoulement is captured by section 18 of the Refugee Act 2006. The section provides: No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to subjected any similar measure if, as a result of such refusing, expulsion, return or other measure, such person is compelled to return to or remain in a country where;

(a) the person may be subject to persecution on account of race, religion, nationality membership of a particular social group or political opinion; or  

 (b) the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country. Prohibition of forced return of a refugee is called non-refoulement and is one of the most fundamental principles in international law. This principle is laid out in Article 33 of the Convention relating to the Status of Refugees (Refugee Convention). 

It is to the effect that no state shall expel or return (refouler in French) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or membership of a particular social group or political opinion. Article 31 of the refugee convention provides that refugees should not be penalised for having entered the country illegally or if they have come directly from a place where they were in danger and have made themselves known to the authorities. This is now reflected by section 11 of the Refugees Act.  

Kenya seems to have finally complied with international law through the enactment of the Refugees Act 2006 and in particular section 11 and section 18, further buttressed by the passage of the Constitution of Kenya 2010.This means that the principles of international law regarding non refoulement and non-penalization of asylum seekers are now part of the law of Kenya. Refugees should enjoy these rights that were previously unavailable to them.

D. Disqualification, Cessation, Withdrawal, and Expulsion.

Certain persons are disqualified from attaining refugee status, while persons who have been granted such status may lose it under some circumstances.  A person is ineligible for refugee status if the person

has committed a “crime against peace, a war crime, or a crime against humanity”;

has committed a serious non-political crime in or outside of Kenya;

has committed acts “contrary to the purposes of the United Nations or the African Union”; or

holds dual citizenship and could seek protection in one of the countries of his citizenship, and therefore does not have a well-founded fear of persecution.

A person who has been granted refugee status may lose that status through a voluntary or involuntary change in circumstances.  For instance, if a person “voluntarily re-avails himself of the protection of his nationality,” voluntarily reacquires a lost citizenship or acquires a new citizenship, or voluntarily re-establishes himself in the country where he feared persecution, he would lose his refugee status. A person may also lose his refugee status as a result of changes to his circumstances independent of his own doing for example, where the circumstances that formed the basis for the granting of status have “ceased to exist.

The DRA may withdraw the refugee status of any person if it has “reasonable grounds for believing” that the person has ceased to be a refugee or should not have been recognized as such in the first place. This may occur if the person was ineligible for the status or the status was granted “erroneously as a result of misrepresentation or concealment of facts that were material to the refugee status determination.” In addition, the Act authorizes the DRA to withdraw the refugee status of any person if it has reasonable grounds to believe that the person is a danger to national security or to any community in the country.

The withdrawal of the refugee status of a person also results in the withdrawal of all derivative rights.  When a person is granted refugee status, members of his family (including a spouse, dependent child, or sibling under the age of eighteen, or dependent parent, grandparent, grandchild, or ward living in the refugee’s household) are also accorded the same rights. If the person loses his refugee status, his family members also lose their status. However, any family member who loses his derivative status is entitled to petition for protection independently.

In addition to withdrawing a person’s refugee status, the DRA may also expel any refugee or a member of his family if it deems it necessary “on the grounds of national security or public order.”

E.  Right of Appeal.

In theory, asylum seekers and refugees have the right to appeal any decisions of the DRA.  The Act establishes an Appeal Board chaired by an experienced legal professional, including as its members persons with knowledge of or experience in matters relating to immigration, refugee law, and foreign affairs, and requires that the Board operate independently in the exercise of its functions. Under the Act, asylum seekers and refugees are entitled to appeal any unfavourable decision of the DRA to the Board. However, Kenya has yet to constitute this body.  As a result, the DRA and the UNHCR are said to “refrain from issuing rejections [to asylum claims] until an appeal process is established which could hear appeals against such negative outcomes. This is said to cause delays in the RSD process in violation of the Act, which requires the DRA to make a determination within ninety days of an application.

G. Integration.

A sustainable integration of refugees into a host country is said to have three interconnected aspects: legal (the according of rights to refugees, including the right of employment, property ownership, movement, permanent residency, and citizenship); economic (refugees becoming self-sufficient); and social (the ability of refugees to live among the citizens of the host country).

 In theory, refugees in Kenya are free to engage in any form of self-employment without the need to obtain formal authorization and they may take paid employment after obtaining a work permit. The Act provides that “every refugee and member of his family in Kenya shall, in respect of wage-earning employment, be subject to the same restrictions as are imposed on persons who are not citizens of Kenya.”  Refugees and their spouses may apply for and obtain a class M work permit. A holder of a class M work permit “may engage in any occupation, trade, business or profession.”

Although obtaining a two-year work permit previously cost refugees US$700, this is no longer the case as Kenya has removed this fee and made permits available free of charge. While refugees may theoretically work, the practice is reportedly much different.  The Refugee Consortium of Kenya stated in 2012 that the government does not issue work permits to asylum seekers or refugees except in “a few isolated cases. As a result, refugees and asylum seekers are forced to seek employment in the informal sector. However, this is increasingly being made difficult by the country’s encampment policy, which restricts the ability of refugees and asylum seekers to move about the country freely.

A path to naturalization is apparently not available to refugees.  Article 15 (2) of the 2010 Kenyan Constitution provides that “a person who has been lawfully resident in Kenya for a continuous period of at least seven years” and who meets other conditions prescribed in the relevant legislation may be naturalized. Kenyan law on citizenship provides additional conditions, including the ability to speak Kiswahili or a local language and the capacity to make a substantive contribution to Kenya’s development. However, in practice, Kenya does not appear to grant citizenship to refugees.

Role of National Governments.

The national government has the exclusive mandate of dealing with matters relating to refugee management in the Country.  The following are the main government ministries that are directly involved in management of refugees;

Ministry of Interior and Co-Ordination of National government.

The Ministry of Interior and Co-ordination of national government has a primary responsibility of ensuring that refugees are provided with physical security. The National Police Service which has the mandate of providing security to all Kenyans (including refugees) falls under the Ministry of Interior and Co-ordination of national government.

The Ministry of Interior and co-ordination of national government is empowered to declare a class of persons prima facie refugees and to amend or revoke such declaration. For instance, in June 2014 when acting on humanitarian grounds, the then Interior Minister Joseph ole Lenku declared as prima facie refugees South Sudanese nationals fleeing the civil war in their Country.

The Refugee Affairs Secretariat (RAS) is an office within the Ministry of Interior and Co-ordination of National Government.  The Refugee Affairs Secretariat (RAS) is in charge of the management of refugees and asylum seekers in Kenya. It is involved in registering, processing and making decisions on all applications for asylum. It also issues identification cards for asylum seekers and refugees in Kenya. 

The Ministry of Health.

The Ministry of health is in charge of health policy and regulation in Kenya. It has the core mandate of ensuring that all Kenyans (including Refugees) have access to health facilities. The Ministry works in partnership with organizations such as the United Nations High Commissioner for Refugees (UNHCR) and World Health Organization (WHO) to ensure that health care facilities are extended to the Refugee camps and all Refugees have access to affordable health care services.

Ministry of Education.

Among the refugee population in Kenya over half are Children of School age years. The majority of Refugee and asylum seeking learners are enrolled in pre-primary, primary and secondary schools and tertiary institutions located in Dadaab and Kakuma refugee camps and Kalobeyei settlement. A small number of Refugees acquire places to study in public and private Universities across Kenya.

Ministry of Water & Sanitation and Irrigation.

The Ministry of Water & Sanitation and Irrigation plays a key role in ensuring that the Refugee camps in Kakuma and Dadaab are supplied with clean drinking water and sanitation services.

The Parliament.

The legislative arm of the government has the mandate of enacting laws that govern all people living in the Republic of Kenya. This includes enacting laws such as the Refugee act and other law that may govern the management of refugees in Kenya.

The Judiciary.

The Judiciary has the mandate of ensuring the cases lodged in Courts are adjudicated expeditiously without unnecessary details. This includes cases touching on matters to do with refugees. Justice should be served to all people residing in the Country.

Role of Devolved County Governments.

While the 2010 Kenya Constitution ended the unitary system of government and decentralized power by establishing county governments with executive and legislative powers, it put the authority to deal with matters relating to refugee management exclusively in the hands of the national government. Although, as noted above, counties host refugees, county governments have neither the authority nor the budget to directly participate in any aspect of the refugee management process. However, there are a number of ways in which county governments have indirect involvement in refugee management; chief among them is the question of allocation of community land for use as a refugee camp.

The two main refugee camps in Kenya are located in the Counties. Kakuma refugee camp is located in Turkana County while Dadaab refugee camp is located in Mandera County. The two County governments have allocated community land for use as refugee camps.

Monitoring and Movement of Refugees.

As noted above, refugees and asylum seekers are required to remain in designated refugee camps.  The Act requires that all asylum seekers and refugees be issued identity cards or passes. An asylum seeker is issued an asylum-seeker pass after applying for refugee status. The asylum-seeker pass must “specify the time and date” on which the asylum seeker must present himself in the designated refugee camp and includes information that failure to do so “may result in the withdrawal of the pass. After the person is granted refugee status, he is issued a refugee identification card. Any refugee wishing to travel outside of the camp where he resides must first obtain a movement pass.

CASES;

Kenya National Commission on Human Rights & Others vs Attorney General of Refugees Affairs by Government of Kenya.

This petition brings into sharp focus Kenya’s obligations under international law, international and regional conventions, the Refugee Act and the application of the Bill of Rights to persons enjoying refugee status within the Republic of Kenya and the circumstances under which refugee status can legally cease to exist.

Briefly, the facts giving rise to this petition are that on 6th May 2016 the 4th Respondent issued a directive by way of press release entitled “Government Statement on Refugees and Closure of Camps” whose details are, inter alia that “owing to national security, hosting of refugees has come to an end and that the Department of Refugee Affairs (DRA) has been disbanded and that the Government is working on mechanism for closure of the two refugee camps (Kakuma and Dadaab) within the shortest time possible.”

Refuge consortium of Kenya & Others vs Attorney General & 2 Others (2015) eKLR.

The Petition dated 30th July 2014 asks this Court to navigate the tensions between measures taken to heighten national security and the protection of the rights of minor refugees.

On 26th March 2014, the 2nd Respondent issued a press statement informing the public of the decisions made by the Government with regard to refugees and national security issues.  Among the decisions was the directive that all refugees residing outside designated refugee camps as specified in Gazette Notice No.1927 must return to their designated camps immediately.

Consequently, it was ordered that all refugee registration centres in urban centres were to be closed.

The Petitioners further submit that the Respondents have infringed upon the Constitutional rights of the minor refugees cited in the Petition, in particular the refugee children’s rights to fair administrative action (Article 47(1)), freedom and security of the person which includes the rights not to be subjected to physical or psychological torture or be treated or punished in a cruel, inhuman or degrading manner.  That (Article 29(d) and (f) also protect the child’s right to be protected from abuse, neglect and inhuman treatment (Article 53(1)(d)).  They also base the Petition on the Petitioners’ inherent dignity and the prohibition against unfair discrimination (Articles 27 and 28).

They alleged that the Directive and press statement in issue are unconstitutional in that during the police operations, minors were separated from their parents and that the effect of the forceful relocation of the parents of the minors herein was that the minors were stripped of the parental care they are entitled to under the law and which they enjoyed prior to the security operation.  That the children were taken in by relatives and friends who had since been struggling to take care of them and on the strength of their legal and valid registration, refugees had integrated themselves in the community in several ways such as enrolling their children in schools and it therefore had the effect of disrupting the integration, education and well-being of refugees, especially minors, who were already enjoying the social amenities available in the urban centres. The actions of the Respondents therefore exposed them to psychological and mental torture and unnecessary distress and the Respondents’ conduct has caused the children and their caregivers to fear that they will be forcibly relocated in the same manner as their parents.

The main point for determination is whether the Respondents’ acts and/or omissions in executing the Directive infringed upon the rights of minor refugees and violated the provisions of the Constitution and other legal instruments to which Kenya is bound.  If it is found that the implementation of the Directive infringes upon the rights of the Petitioners, it would subsequently have to be determined whether this limitation is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom.

Constitutional Rights of Refugees in Kenya.

Kenya has taken the step of incorporating the bulk of international law on refugees by specifically adopting the conventions and principles in respect thereof and codifying them into law through the Refugee Act. The legal position in Kenya is that treaties and International Conventions that have been ratified now form part of Kenyan law. Having been made part of the law of Kenya they still have to pass one more test. They must not be in conflict with the Constitution of Kenya. Thus the Refugee Act as enacted should not be in conflict with the Constitution. Any provision that would be found to be in conflict with the Constitution would be void to the extent of the inconsistence. 

Similarly, any convention or treaty or part thereof adopted by the Refugees Act which contravenes the Kenyan Constitution would be void to the extent of the inconsistency.

The rights envisaged in the Universal Declaration of Human Rights have already found expression in Chapter IV of the Kenyan Constitution 2010. The said rights are expressed in the various International Refugee Instruments.  Refugees are human beings.  Refugee rights are, we submit, human rights. They are also Constitutional rights as expressed in the Bill of Rights. Every refugee in Kenya is thus entitled to enjoy both the rights envisaged in the international refugee instruments and are also the rights enshrined in the Constitution of Kenya.  

Violation of refugee rights can thus in our view be the subject of a constitutional reference. The writer takes the further view that courts do not have to wait for a constitutional reference. They should ensure that the rights of an accused are upheld at all stages of a trial. The right to a fair hearing for example should be enforced and observed by all courts. The fact that there is now a Refugees Act should make it easier to protect refugee rights which are set out in international instruments and the Kenyan Constitution.   

The writer suggests that the enactment of the Refugees Act should serve as a catalyst to the realisation of refugee rights in Kenya. The definition of a person in the Constitution of Kenya does not distinguish between a citizen, an alien or a refugee. Person includes a body of persons, corporate or incorporates. The definition is wide enough to include refugees and groups of refugees. The rights enshrined in the Constitution of Kenya should thus be enjoyed by Kenyans and other persons including refugees.  Refugees are thus entitled to personal liberty as envisaged in Article 29 of the Constitution. They shall not be held in slavery or servitude 

(Article 30); Refugees shall not be subject to torture or to inhuman or degrading punishment or other treatment (Article 29(d) and (f). Refugees are entitled to the protection of them property (Article 40); Refugees should not be subjected to the search of their persons other property except with their own consent (Article 31).

When refugees are charged in court with a criminal offence, they are entitled to the protections enshrined in Article 49 of the Constitution of Kenya 2010.  The writer takes the view that they are entitled to a fair hearing and the presumption of innocence should operate in their favour.  Refuges are entitled to freedom of conscience which freedom includes freedom of thought and of religion. They are constitutionally entitled to manifest and propagate their religion or belief in worship, teaching, practise and observance. They are also entitled to establish and maintain at their expense places of education and manage the same.

To the extent that international refugee instruments uphold the rights enshrined in the Constitution of Kenya and that they have been domesticated in the Refugees Act then they are applicable in the Kenyan courts. If the rights enshrined in the Constitution of Kenya are to be strictly applied in relation to refugees, then it is arguable that Kenya will in fact be enforcing the principles contained in international refugee instrument.

In conclusion, protecting refugee rights in Kenya through the utilisation of the International Refugee Instruments, the Refugees Act 2006 and the Constitution of Kenya as catalysts is now possible. All the players in the field of refugee protection should play their respective roles to the full. The UNHCR, ICRC, the Commissioner for Refugees, the Government of Kenya and other stakeholders should co-operate and seek to ensure that refugee rights are respected.  Refugee rights are provided for by International law and municipal law.  

There has to be the political will on the part of all parties concerned. A deep respect for human rights is necessary. A commitment to ensuring that the human rights of refugees are respected is a prerequisite.  

Kenya hosts thousands of refugees and asylum seekers. There is a need to accord them the rights envisaged by the International Refugee Instruments, the Kenyan laws and the Constitution of Kenya. The Refugee Act 2006 has given refugees legal status. What is needed is respect for their rights and proper planning and funding so as to ensure that their holistic needs are met. Kenyan courts need to acquaint themselves with the Refugee Act 2006 and its implications. There is certainly a need to change our approach to refugee issues. Courts should be protectors of refugees and not their persecutors.  

Kenya has an obligation under international law to uphold human rights.  There is a need to define a constructive approach involving both refugees and nationals in the search for acceptable and durable solution to the refugee problem. The writer subscribes to the view that these durable solutions should address: the right to return integration participation by refugees in peace processes resettlement with the cooperation of countries of origin.  

The enactment of the Refugee Act 2006 is a first step in the right direction.

2.  UNHCR.

WHAT IS UNHCR?

The Office of the United Nations High Commissioner for Refugees, more commonly referred to as the UN refugee agency or UNHCR, was created by the UN General Assembly in 1950 and began work on 1 January 1951. Its statute was drafted virtually simultaneously with the 1951 Convention Relating to the Status of Refugees, which became the cornerstone of refugee protection in subsequent decades.

UNHCR’s initial task was to help millions of uprooted peoples mainly in Europe in the aftermath of World War II, and to seek permanent solutions for them. The Convention obliged states not to expel or forcibly return (refoulement) an asylum-seeker to a territory where he or she faced persecution. This was surely an important development, but the bulk of the Convention was, and remains, devoted to setting out the access to rights and standards governing the treatment of those recognized as refugees, so that they could resume normal lives.

The agency was given three years to accomplish this task. But as new refugee crises proliferated across the globe, the mandate was repeatedly renewed until, in 2003, the UN General Assembly made the High Commissioner’s mandate permanent.

A 1967 Protocol strengthened global refugee protection by removing the geographical and time limitations written into the original Convention, under which mainly Europeans involved in events occurring before 1 January, 1951 could apply for refugee status.

UNHCR is now one of the world’s principal humanitarian agencies, with some 8,000 staff members working in 449 locations in 123 countries. In the last six decades, the agency has provided assistance to well over 50 million people, earning Nobel Peace Prizes in 1954 and 1981.

António Guterres, who became the 10th High Commissioner in June 2005, reports to the Economic and Social Council on coordination aspects of the work of the agency, and submits a written report annually to the UN General Assembly on the overall work of UNHCR.

UNHCR’s programmes are approved by an Executive Committee, currently of 94 member states, that meets annually in Geneva. A working group, or Standing Committee, meets several times a year.

HOW UNHCR’S ROLE HAS EVOLVED.

Protection responsibilities have remained at the core of UNHCR’s work over the years. These include continuing efforts to promote and extend the international legal framework, to develop and strengthen asylum systems, to improve protection standards, to seek durable solutions, and many other activities designed to ensure the safety and well-being of refugees.

In 2001, the most important global refugee conference in half a century adopted a landmark declaration reaffirming the commitment of signatory states to the 1951 Refugee Convention. Through a process of global consultations, UNHCR drew up an “Agenda for Protection,” which continues to serve as a guide to governments and humanitarian organizations in their efforts to strengthen worldwide refugee protection.

In addition to this work for refugees, UNHCR was mandated by the UN to monitor and protect stateless persons worldwide, assisting states and individuals – for whom statelessness can have devastating consequences. The current year marks the 60th anniversary of the 1954 Convention relating to the Status of Stateless Persons, which along with the 1961 Convention on the Reduction of Statelessness, form the legal framework for this important work.

UNHCR is also a key player in the UN’s “cluster approach”, involving a wide range of agencies that help millions of internally displaced people who, unlike refugees, have never had a single agency wholly dedicated to their well-being. With its proven operational expertise, UNHCR plays a prominent and more direct role in countries where displacement is occurring – either helping returning refugees to settle back into their home areas or through activities on behalf of IDPs in countries such as the Syrian Arab Republic, Colombia, Iraq and the Democratic Republic of the Congo (DRC).

UNHCR has likewise contributed to major international relief operations to help victims of natural disasters, including the 2004 Indian Ocean tsunami, the 2005 Pakistan earthquake, China’s 2008 Sichuan earthquake and the 2013 Philippines typhoon.

FROM EMERGENCIES TO DURABLE SOLUTIONS.

Responding to emergencies is a major feature of UNHCR’s work. In 2013, the dire needs of those fleeing the Syria crisis was an ongoing and overwhelming challenge, while in Africa successive emergency teams were deployed to ensure the protection of those fleeing from the Central African Republic, that of Sudanese refugees flooding into Chad; refugee arrivals from the DRC into Uganda; and the massive displacement of South Sudanese, internally and across borders.

In these and many other cases, the immediate priority was to save lives by meeting basic needs in terms of shelter, food, water, sanitation and medical care. One example was the airlifting of winter aid to northeast Syria.

Other more specific protection needs call for immediate attention in emergencies, and not only in longer standing refugee crises. Those of women and children who comprise a large share of refugee populations, are of high priority: education; countering sexual and gender-based violence; numerous child protection issues, including the threat of child recruitment; and the risk of human trafficking. The goal of all efforts to protect and assist refugees and other displaced persons is ultimately the reestablishment of a normal life. The traditional durable solutions options are those below. Efforts are being made, however, to ensure that refugees are also able to realize other opportunities for which they may be eligible, with protection safeguards. These include promotion of humanitarian admission, family reunification, labour migration, regional mobility and other such schemes.

Voluntary repatriation to their own country is the preferred solution for the majority of refugees, as soon as circumstances permit. Providing it is safe and reintegration is viable, UNHCR encourages this solution and often provides transportation and a start-up package, including cash grants, income-generation projects and practical assistance such as farm tools and seeds. Together with NGO partners, UNHCR on occasion extends this help to include the rebuilding of individual homes and communal infrastructure such as schools and clinics, roads, bridges and wells. Such projects are often designed to help IDPs as well as returning refugees while also benefitting local populations. UNHCR’s field staff may also monitor the well-being of returnees in precarious situations. Longer-term development assistance is provided by other organizations. In 2013, the number of those returning to their home countries was relatively low: 414,600 refugees – the fourth lowest level of the past 25 years. Of this number 206,000 received UNHCR’s assistance. The leading country of return was the DRC (68,400), followed by Iraq (60,900), Afghanistan (39,700), Somalia (36,100), Côte d’Ivoire (20,000), Sudan (17,000) and Mali (14,300). In the last decade, 6.5 million refugees were able to return home, compared to 14.6 million in the previous decade.

Local integration Refugees unable to return to their home countries may aim at self-sufficiency in their country of asylum, and integrate locally. It is a complex and gradual process leading ultimately to becoming full members of the host society, with entitlements and rights that are comparable to those of nationals. Over time the process should lead to permanent residence and, in the best-case scenario, the acquisition of citizenship in the country of asylum. UNHCR has encouraged states to improve their data on naturalized refugees, but statistics are still only partial. However, from those available it appears that, during the past decade, at least 716,000 refugees have been granted citizenship by their asylum countries, the United States accounting for two-thirds of this figure.

Resettlement The other durable solution is resettlement in a third country. In 2013, a total 27 countries offered resettlement places – the same number as the previous year. However, resettlement needs continued to exceed the number of places available by a ratio of 12 to one. The main beneficiaries in 2013 were refugees from Myanmar (23,500), Iraq (13,200), DRC (12,200), Somalia (9,000) and Bhutan (7,100). Three categories dominated submissions for resettlement: legal and/or physical protection needs (42%); lack of foreseeable alternative durable solutions (22%), and survivors of violence and/or torture (16%). Women and girls at risk represented more than 12 per cent of total resettlement submissions. During the year, a total of 98,400 refugees were admitted for resettlement. Ninety per cent were resettled in the United States, Australia and Canada (see table).

HOW UNHCR OPERATES.

Funding UNHCR is funded almost entirely by voluntary contributions, principally from governments but also from inter-governmental organizations, corporations and individuals. It receives a limited subsidy of just over 2 per cent of its funding from the United Nations regular budget, for administrative costs. It also accepts in-kind contributions, including relief items such as tents, medicines, trucks and air transport.

UNHCR presented a global needs-based budget for 2013 that rose during the year to US$5.3 billion because of new emergencies. Despite difficult worldwide economic conditions, UNHCR received more than US$2.9 billion in funding, a rise of US$647 million over 2012. Nevertheless, with funding covering only 60 per cent of needs, a wide gap remained.

Partnerships are important to UNHCR and, as humanitarian crises have become more complex, UNHCR has expanded both the number and type of organizations it works with. Its operational partners now include more than 740 international and national NGOs.

It also plays an active role in the inter-agency “cluster” approach, taking the lead in certain areas of its expertise. United Nations sister agencies with which it cooperates include the World Food Programme (WFP), the UN Children’s Fund (UNICEF), the World Health Organization (WHO), the UN Development Programme (UNDP), the Office for the Coordination of Humanitarian Affairs (OCHA), the UN High Commissioner for Human Rights (OHCHR), and the UN Office on Drugs and Crime (UNODC).

Other organizations with which UNHCR has strong links include the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (IFRC) and the International Organization for Migration (IOM).

3.CIVIL SOCIETIES.

IOM’s ( International Organisation for Migration is an intergovernmental organization that provides services and advice concerning migration to the governments and migrants, including internally displaced persons, refugees, and migrant workers) collaboration with NGOs (Non-governmental Organizations ) is defined in Article 1(2) of its constitution, according to which the Organization “shall cooperate closely with international organizations, governmental and non-governmental, concerned with migration, refugees and human resources in order, inter alia, to facilitate the co-ordination of international activities in these fields. Such cooperation shall be carried out in the mutual respect of the competencies of the organizations concerned.”

Over 60 NGOs currently hold Observer status with the Organization. IOM is actively encouraging NGO participation at its Council and the International Dialogue on Migration and hopes that the trend towards increased NGO participation in migration policy dialogue will continue. Also at Headquarters level, IOM convenes regular annual consultations and briefings for a wider NGO audience. Most of the programmatic cooperation between NGOs and IOM, however, takes place at field level.

Cooperation between IOM and NGOs occurs in various contexts and reflects the diverse relationships between the two actors. NGOs might be collaborators with IOM, service providers or project implementers, donors, beneficiaries of IOM technical cooperation, grant recipients, or service recipients. IOM and NGOs may act as equal partners, or complement each other’s activities.

IOM and NGOs collaborate on a broad variety of migration management issues globally:

Counter-Trafficking:  NGOs and IOM cooperate in awareness-raising among potential migrants and capacity-building for governmental institutions in counter-trafficking. NGOs also play a crucial role in IOM programmes which assist victims of trafficking by providing shelter and protection services, counselling and medical support, as well as assistance in return and reintegration.

Assisted Voluntary Returns:  IOM is working with NGOs in each of the three stages of assisted voluntary returns: pre-departure, transportation and post-arrival. IOM coordinates with NGOs to provide information dissemination, counselling, medical assistance, transport assistance and reintegration. NGOs also facilitate return assistance for migrants in an irregular situation and other migrants, such as unsuccessful asylum seekers, trafficked migrants, and qualified nationals.

Human Rights of Migrants:  NGOs and IOM work together in organizing or carrying out workshops, seminars and information dissemination campaigns specifically directed at increasing awareness of the human rights of migrants. IOM and NGOs also conduct research and collect information to identify and address abuses.

Emergency and Post-Conflict:  In emergency and post-conflict situations, IOM works with NGOs in various activities, e.g., organizing the safe and orderly evacuation or return of displaced populations, providing emergency shelter and relief, ensuring that protection concerns are identified and addressed, conducting censuses and surveys and organizing the return and reintegration of internally displaced persons, as well as of former combatants and their dependants.

Movement Management:  NGOs assist IOM in various components of temporary and permanent resettlement or return programmes of migrants to their countries of origin, e.g., cultural orientation, tracing and family reunification, sponsorship, transit assistance, and post-movement follow-up services.

Labour Migration: NGOs are important partners in promoting regular labour migration, within the framework of combating irregular migration, fostering the economic and social development of countries of origin, transit and destination and ensuring respect for the rights and integrity of labour migrants.

Mass Information:  NGOs play a significant role in researching, designing and implementing public information campaigns to raise awareness of various migration issues through mass media.

Migration Health:  IOM’s Medical Health team works closely with NGOs in managing health assessments for prospective migrants and refugees in view of their resettlement or return, addressing a broad spectrum of health issues.

Technical Cooperation on Migration (TCM):  Technical cooperation projects can provide NGOs with technical and material support to enhance civil society’s role and contribution in the migration sector, including their efforts in research, the provision of direct services to migrants, and advocacy on behalf of migrants. NGOs are frequently partners as well in IOM technical cooperation activities benefiting governments. Examples of non-governmental organizations promoting and protecting refugees on national and international level, includes the following;

Refugee Consortium of Kenya.

This is a non- governmental organization which is popularly referred to as “Haki House” by the refugees. Its mission is to promote and protect the rights and dignity of refugees, asylum seekers, Internally displaced persons and other forced migrants in Kenya and the wider East African region. It was established in response to an increasingly complex and deteriorating refugee situation in Kenya and the East African region.

Kituo Cha Sheria (Legal Advice Centre).

This is a human rights non-governmental organization that helps the disadvantaged, poor and marginalized people in Kenya access justice. Kituo cha Sheria is a legal partner with UNHCR to provide free legal services to asylum seekers and Refugees.

Medecins Sans Frontieres.

This is an International, independent medical humanitarian organization. It provides medical assistance to people affected by conflict, epidemic, disasters or exclusion from healthcare.

Care International.

Care International is an international non-governmental organization which is independent of political, commercial, military, ethnic or religious objectives. It promotes the protection of humanitarian space and provides assistance on the basis of need, regardless of race, creed or nationality addressing the rights of vulnerable groups.

CASES;

Kenya National Commission on Human Rights & Others vs. Attorney General of Refugees Affairs by Government of Kenya.

Refugee Consortium of Kenya & Others vs. Attorney General & Others (2015) eKLR.

LIST OF STATUTES.

1951 United Nations Convention.

1967 Protocol.

1969 African Union (AU).

1984 Convention.

Refugee Act 2006.

Immigration Act (Cap 172)

Aliens Restriction Act (Cap 173)

The Constitution of Kenya 2010.