Kenya currently hosts about 600,000 refugees from the Democratic Republic of Congo, Rwanda, Burundi, South Sudan, Ethiopia, Eritrea and ­­— the largest number — Somalia. Refugees are mainly hosted in the Daadab and Kakuma refugee camps, but a significant number have moved to urban areas over time, and engage in work or studies. This, by any standard, is a big number and the government has on several occasions indicated that Kenya is unable to take any more. In fact, since 2012, the government has engaged in a constant campaign to send refugees back to their countries of origin.

But first things first — who is a refugee? The Refugee Act defines a refugee as a person who has been forced to flee his or her own country and is afraid to return. The reasons for the fear may be widespread war or violence, or persecution, based on the person’s race, religion, sex, nationality, membership of a particular group or political opinion.

Genuine refugees are, no doubt, among the most vulnerable members of society. Most have lost everything: Their country, homes, jobs and — worse — close relatives. Those who do not carry with them physical scars from persecution are constantly haunted by memories of what they endured. Both Kenyan and international human rights law recognise this and as a result, contain strong provisions to protect refugees. Nonetheless, refugee rights constantly get threatened or violated.

GOING TO COURT TO PROTECT REFUGEES

A number of public interest litigation cases have been started, including about the rights of refugees living in urban areas, rights of refugee children and the government’s obligation to protect the rights of refugees. Three cases are worth discussing.

In December 2012, the government issued a directive requiring all refugees living in urban areas to relocate to Dadaab and Kakuma Refugee Camps as a first step towards ultimately sending them to their home countries. The refugees were first to be held in Thika Municipal Stadium before transportation to the refugee camps. The government justified its actions because of a ‘series of grenade attacks in urban areas where many people were killed and many more injured.’

Kituo cha Sheria, together with a number of refugees living in urban areas, filed a petition challenging this directive. Katiba Institute participated in the case as amicus curiae (friend of the court). Justice David Majanja, in July 2013, held that refugees have the right to freedom of movement under the Constitution and the 1951 Refugee Convention (an international treaty), which Kenya has signed. He also said the directive threatened their rights to dignity and fair administrative action, and violated the state’s responsibility towards these vulnerable people. And the state had not been able to establish a link between presence of refugees in urban areas and terrorism. The Attorney General appealed, but last month, the Court of Appeal agreed with the High Court. It held that the right to movement that belongs to every person without any distinction based on citizenship.

In spite of the High Court decision, in March 2014 the government issued a similar directive and launched an internal security operation — ‘Operation Usalama Watch’. The Kenya Police began to enforce the directive harassing, arresting and detaining persons mainly from the Somali ethnic community and sending them to refugee camps. There were reports that hundreds of families were separated — including children from their parents.

Another petition was filed challenging the directive on behalf of 48 of those children. In December 2015, Justice Lenaola held that this directive about relocation of refugees to Daadab and Kakuma was against the best interests of the child, because it caused children to lose parental care, education, and exposed them to risk of neglect. The Constitution says that a child’s best interests are of ‘paramount importance’ in everything that concerns children. Refugee children are not excluded.

In April and May 2016, the Interior ministry issued directives through press statements to close the Daadab refugee camp and start the process of repatriation of all Somali refugees. The government also ordered the disbandment of the Department of Refugee Affairs (DRA). It justified its actions on the basis of overcrowding in the camps, increased economic costs, proliferation of arms, human trafficking and national security interests.

A number of organisations went to court challenging these directives. In a judgment delivered by Justice Mativo in February 2017, the court held that the decision to close the Daadab camp was in violation of the refugees’ constitutional rights to dignity and fair administrative action and freedom from non-discrimination. The court also decided that the Principal Secretary had no powers to disband the DRA since it was established by an Act of Parliament. Most importantly, the court held that the government’s actions was in violation of the non-refoulement principle.

NON-REFOULEMENT

This principle is the cornerstone of refugee protection. It means that states cannot send a refugee to a country where his or her life or liberty will be at risk. Kenya recognises this principle under the Refugee Act and internationally under the Refugee Convention and the OAU Convention Governing the Specific Aspects of Refugees, which Kenya has accepted. The Constitution says that a treaty that Kenya has agreed to is part of Kenyan law

In December 2014, through the Security Laws Amendment Act, Parliament introduced an amendment to the Refugee Act to the effect that the number of refugees and asylum seekers allowed in Kenya would not exceed one hundred and fifty thousand persons. In the judgment delivered by a five-judge bench, the court held that this provision was unconstitutional because it violates the principle of non-refoulement — which is part of Kenyan law.

The non-refoulement principle does not protect any refugees who are a danger to the security of the host country. But, in all these cases, the State failed to provide any evidence to show that the refugee camps were used as breeding grounds of criminal activities, or that refugees were involved in serious crimes or they were a threat to public security that would necessitate the closure of the camps.

These decisions show that the courts recognise that Kenya has a positive obligation to protect persons in vulnerable situations. This includes refugees. Upholding this principle ensures that refugees are protected from violation of the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, dignity and to liberty and security of the person. These rights are provided for under the Constitution, 1951 Refugee Convention, African Charter on Human and People’s Rights, Convention Against Torture and the International Covenant on Civil and Political Rights.

REFUGEE STATUS CAN END

According to the Refugee Convention, a person can cease to be a refugee if, amongst other reasons, a refugee voluntarily returns to their country of origin or where there is change in the circumstances that led them to flee the country of origin. One cannot be compelled to return to a volatile situation. The circumstances should change to the point that a refugee is able to accept the protection of their country of origin because significant change has taken place — such as the end of conflict, a change in political leadership or peace and stability so that the safety of refugees is guaranteed.

A significant mandate of the court is to protect marginalised groups from the tyranny of the majority or of governments. Courts have consistently been at the forefront in protecting vulnerable groups. These three refugee judgments are a confirmation by the courts that refugee rights are worthy of protection under our Constitution.

By Faith Rotich

The author is litigation and research counsel at Katiba Institute