Sorry, your rights end at the border

The Kenyan and Syrian cases stand out as characterising among the most blatant violations of the rights and freedoms of asylum seekers


By Jane Wachira

The concept of refugees dates back to the First and Second World Wars. Major incidents leading to mass displacement include the end of the colonial and the post-Cold War eras (46.5 million people), the partition of India and Pakistani, the civil conflicts of Angola, Congo, and the Rwanda-Burundi genocide. In the 21st century, at least 22.9 million people have been displaced. Incidents motivating mass movement include the secession of South Sudan from The Sudan, civil conflict in Burundi and Burkina Faso, insurgency in Nigeria and the invasion of Iraq by the US. At the helm of it is the Syrian refugee crisis which resulted from a revolution gone wrong; at least 4,812,204 Syrians (February 2016) have migrated to neighbouring countries and to Europe, making them the world’s largest refugee population under UN mandate.

According to the 1951 Convention relating to the Status of Refugees, in Article 1(2) 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, 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, unwilling to return to it.

In this article, I seek to explore the legal, moral and humanitarian obligations human beings, governments and humanitarian agencies have towards refugees; why there is not “a refugee crisis” but why refugees are in a crisis. I will analyse the situation in a country that hosts refugees, Kenya, and the situation of refugees who are stranded in foreign countries, as well as why the international community and western countries are hostile to refugees – that is, why they will not accept them, and the impact of this.

Kenya’s open-door policy

Kenya has heard an uproarious history with regard to its refugee’s situation which dates back to independence in 1963. Due to its open door policy, it has been able to host refugees from the great lakes region, the larger Africa and from the world. In 1971, it hosted the first wave of Ugandan refugees who were displaced by national political upheaval and the onslaught of the dictator Idi Amin. The number increased in the 1990s with the collapse of the Siad Barre regime in Somalia, when about 200,000 Somalis sought refuge in Kenya; this number has grown in recent years owing to the ongoing Al-Shabaab conflict. The country also hosts Congolese, Rwandese and Nigerians, among others. In the 1980s, Kenya hosted refugees from Vietnam. Recently Kenya has received Ugandan refugees escaping LGBTIQ laws and the homophobic attitude exhibited in the country between 2013 and 2014.

According to UNHCR statistics (February 2016), the country is host to 596,045 refugees and asylum seekers. 554,757 are registered as refugees while 41,288 are registered as asylum seekers. 415,585 are Somalis, 21,401 Ethiopians, 97,922 South Sudanese, 12,639 from DRC, 3449 from Sudan and 3761 unclassified. They are situated in the Kakuma, Daadab and Alinjugur Camps as well as the capital city, Nairobi. Kenya not only hosts refugees but also contributes to the refugee population in the world. Following the post-election violence in 2007, approximately 2000 Kenyans sought refuge in Uganda.
Kenya is signatory to the 1951 UN Refugee convention and the 1967 protocol. It is also signatory to the 1969 OAU Refugee Convention. Further, on the domestic front, it has enacted the Refugee Act 2006.

An asylum seeker is recognised as a refugee through the process of Refugee Status Determination (RSD). It is currently conducted by the UNHCR, and is the process by which an asylum seeker’s claim for protection is assessed based on the information of their country of origin. Before an asylum seeker can go through the process, s/he must first be registered by the Department of Refugee Affairs (DRA). In certain cases Asylum seekers are granted prima facie refugee status, which recognises them as persons fleeing from conflict and who enter the country in large numbers such that authorities do not have the capacity to conduct individual assessment on all the asylum seekers like the  refugees from South Sudan. After the final RSD decision, if refugee status is granted, the person may remain in Kenya; if it is not granted they may appeal within 30 days or leave the country within 90 days after they receive a negative decision on their appeal. Forthwith a refugee is entitled to a refugee ID, movement pass, UNCHR/DRA Mandate Refugee certificate, ration card which allows a holder to collect food from the camps, and a travel document, which has the same functionality as a passport.

The rights accorded to refugees include the rights to non-refoulement – that is the right not to be returned to the countries that they face persecution, access Kenyan territory, access documentation, access education and work, freedom from arbitrary arrest, right to family i.e. to marry and get married in Kenya, and the right to hold property. Refugees have duties too, such as duty to renew documentation, to present oneself before an authorised officer to register intention to seek asylum, and to leave the country under an expulsion order given by the cabinet secretary because of national security reasons.

The case of Syria

There are more than 4.8 million refugees from Syria distributed in five countries. Turkey hosts 2.7 million, more than any other country worldwide, Lebanon hosts approximately 1.1 million – around one in five people in the country; Jordan hosts approximately 635,324, which is about 10 per cent of its population. Iraq, where 3.9 million people are already internally displaced, hosts 245,022 while Egypt hosts 117,658.

The Syrian crisis began in 2011 in what was termed as the Arab Spring revolution. For Syria, the uprising went sour as the government retaliated with excessive force leading to war. Syria was also under threat from terrorist activities of ISIS.

Gulf countries, including Qatar, United Arab Emirates, Saudi Arabia, Kuwait, and Bahrain, offered zero resettlement places to Syrian refugees, as did other high-income countries like Russia, Japan, Singapore and South Korea. Germany, however, pledged 39,987 places through its humanitarian admission programme and individual sponsorship. Germany and Serbia together have received 57 per cent of Syrian asylum applications in Europe between April 2011 and July 2015.

EU-Turkey deal

In mid-March 2016, Turkey and the European Union reached a controversial deal, whose aim was to stop the flow of refugees to the continent (Europe) in return for political and financial concessions. The agreement stated that “refugees, migrants and Asylum seekers illegally arriving in Greece…will be sent back to Turkey”. Under the agreement, Ankara (Turkish capital) would take back all refugees and others including Syrians, who cross to Greece illegally across the sea. In return, the EU would take in thousands of Syrian refugees directly from Turkey and reward it with more money, early visa-travels and faster progress in EU membership talks. It is basically a “one for one” agreement which will allow one Syrian from a Turkish refugee to be resettled in the EU for every Syrian refugee returned to Turkey from Greece. For non-Syrians, the route to Europe is entirely cut off. It’s a trade-off not of cows and a bag of grains but on people’s lives… Helpless refugees.

Problems facing refugees in Kenya

Victor Nyamori of Amnesty International says that the refugee status determination (RSD) is often delayed, prompting the asylum seeker to remain in legal limbo, thereby exposing refugees to repatriation. The waiting period for one to be assessed and registered and a verdict given as a refugee in Kenya takes over four years. During this period, asylum seekers are issued with documentation which most administrative bodies do not recognize or know. The police, the office of the DPP and the Judiciary have previously prosecuted genuine refugees and declared them illegal immigrants with orders to take them back to their country of origin owing to these circumstances. Following the Garrissa University College attack by Al Shabaab, the Daadab refugee camp was labelled a breeding ground for terrorists. Meanwhile, Deputy President William Ruto called for closure of the camp. About 300,000 Somali refugees were at risk of being forcibly returned to Somalia. Recently, Interior Cabinet Secretary Joseph Nkaiserry has asserted that many Somali refugees have expressed their wishes to return home, and has called on the Security and Administrative Council to help government send the refugees in Daadab back to their countries, especially Somalia.

In 1990, a thousand refugees were reported to have been forcibly repatriated from Kenya after a directive issued by President Daniel Moi requiring Ugandan and Rwandan asylum seekers to leave the country “immediately”. During the Kenya counter–terror operation of 2014, the rights of refugees and asylum seekers, particularly Somalis, were roundly violated. They faced arbitrary arrests, beatings, extortion and harassment by the security forces during house-to-house searches in the capital. In one incident, a woman had left a young baby in the house who later died as she could not be released from custody.

Further, in 2014, 83 persons were deported to Somalia; none of them was allowed access to legal aid organisations or the UN Refugee Agency (UNHCR) prior to deportation.

Not First World problems

Article 14 of the Universal declaration on Human Rights 1948 grants every person the right to seek and enjoy in other countries asylum from persecution. This was the foundation of the 1951 Convention on the Status of Refugees.

In spite of the fact that such treaties have been ratified, their tenets are hardly adhered to; in fact, states do the opposite of what they assert – from refoulement of refugees to discrimination to violation of the very basic human rights, including right the right to life, association and own property. While women and children are treated, in most countries and cultures, as second class citizens/human beings, refugees are treated as non-human beings, as people whose rights are realised after the realisation of the first, second and third class human rights.

On the non-refoulement principle, the EU is notoriously conspicuous, particularly its recent deal with Turkey. Then there was the Somali refugee situation in Denmark in 2014, where the Somalis were to be relocated to Kenya under the promise that the government of the day would be well compensated for the same. Only it was a bribe, not compensation. These so called developed countries that developed the human rights concept and even codified them are the same ones violating what they pledged, swore and asserted. I agree, countries belong to different categories, and Kenya is a Third World country, but that does not give anyone a right to “dump” their excess “baggage” here. We can hardly sustain those we are hosting ourselves as it is.

Article 33 of the 1951 convention prohibits repatriation of refugees and asylum seekers. How does the EU and countries of high economical and jurisprudential standing construe this provision? Further, in the preamble, it asserts that the fundamental rights and freedoms of refugees shall be upheld and respected and further that the international community shall cooperate with each other to alleviate the burden of refugees what the EU is doing is oppressing weaker nations.

Article 14 of the Universal Declaration of Human rights grants an asylum seeker the right to enjoy protection of the country they have sought refuge in; we are doing the contrary. Even refugees’ right to exist is at stake. This is evident in the treatment of the Somali refugees by the Kenyan government where they are harassed and treated like prisoners of war.

The concept of refugeeism is that an asylum seeker finds peace and is devoid of fear in the country they settle in. Curtailing the movement of refugees is breach of this principle. A refugee must have crossed international border lines, which is why you will find Nigerian refugees in Kenya all the way from west Africa, because in Kenya is where they feel safe and comfortable. Syrian refugees have been forcibly relocated to Turkey from Greece and Somali refugees from Denmark to Kenya. How are they expected to feel safe enough when the country they escaped from is just a border way?

Refugee status is temporary; it may cease where the refugee can safely return and re-establish oneself in their country of origin or where they obtain full protection as a citizen of another state. The concept of a third safe country – where refugees are transferred from the country where they sought asylum and resettled in another country that grants them permanent residence –has been exhibited by Greece when it deports Syrian refugees to Turkey and Israel when it deported refugees to Rwanda.

In 2016, funding to the horn of Africa was only at 15 per cent of the total required. In 2015, the lack of funding led to a 30pc food ration in camps in Kenya. In 2015, Syrian refugees were only funded up to 61pc. Some of the poorest countries in the world already bear the greatest burden when it comes to helping refugees. If these countries were to adopt Europe’s attitude, we would have a real crisis.

To the EU and Kenya, the way to solve a crisis is not by brushing it far enough away from your gaze that you can pretend it is no longer there. States have the obligation to protect refugees, to respect the sanctity of the treaties they ratified and for citizens, civil societies and international non-governmental organizations to ensure the tenets of the conventions are followed to the letter. The need to enforce refugee laws cannot be emphasised enough.


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