Forceful repatriation of refugees a smack in the face of Kenya’s obligations under international law.

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By Kelly Malenya

‘Migrants and refugees are not pawns on the chessboard of humanity’- Pope Francis
The Kenyan government has announced its intention to close the Daadab refugee camp by end of year.  The planned closure has elicited different reactions, but of concern is the applause the Kenyan state has received because of the very able reason the government has given – national security. The other reason – escalated costs by the state to maintain the refugees is a veiled justification, which only supplements the first reason.

The calls to close the camps have been echoed by government more particularly from the wake of terrorist attacks post 2010. As a result the Kenyan government entered into a tripartite agreement with the UNCHR and the Somali government on the voluntary repatriation of refugees in 2013. According to a UNCHR and WFP Joint Assessment Mission (JAM) conducted in the year 2014, the Daadab and Kakuma refugee camps were established in 1991 to provide temporary asylum to those fleeing the civil war. The Daadab camp as at the time of the JAM had a population of 356, 879 refugees. This figure has automatically gone up by now. The majority of the refugees in these camps are from Somalia and South Sudan. This is as a result of the protracted civil conflict
and generalised violence in the Horn of Africa and the Great Lakes region from the early 1990s.

The voluntary repatriation tripartite agreement led to an operation strategy (OP) 2015-2019 dubbed the ‘Voluntary Repatriation of Somali refugees from Kenya’. This particular OP enumerates in detail the organization and plans for repatriation. Of importance is the four pillar plan by the UNCHR where parties to the agreement are to; (1) fully respect the voluntary repatriation tripartite agreement of 10/1/2013 and to strengthen the voluntary return process, (2) strengthen the security partnership project including bilateral security assistance to the Government of Kenya, (3) Provision of additional durable solutions oriented to assistance of refugees and the refugee host community,  and (4) Resource mobilization donor conference (one in October 2015) now past.

This OP was preceded by a ministerial meeting in August 2014, the Addis Ababa commitment towards Somali refugees. It is important to note that enforcing the repatriation has faced numerous challenges owing to the still volatile Somalia especially the South Central side. Many of the refugees despite the cash grants, food and community based support from UNCHR have refused to go back because it is simply unsafe.

The war in Somalia

Scholars, Abdullahi Barisse and Ayare Elmi in The Somali Conflict: Root causes, obstacles, and peace-building strategies, summarize the causes of conflict in Somalia as; competition for resources, repression by the previous military regime, colonial legacy, politicized clan identity, availability of weapons and unemployed youth. Contrary to perception, Somalia once enjoyed functioning governments where they had a democratic regime (1960-1969) and a dictatorial one (1969-1991) albeit with the normal challenges of a post independence regime. After the ousting of the Siad Barre regime in the early 1990s, the country degenerated into the current quagmire.

The two scholars have identified that various factors have contributed to the negation of peace in Somalia. Some of the causes are internal as already identified and others are external i.e. according to the two scholars Ethiopia has contributed to the war by making weapons available over the border.  More so major world powers such as the USA have also kept off the war. The general observation is that it may actually be true that some countries have benefitted from Somalia’s present state, but one major challenge from the war is the continued influx of refugees into its neighbours such as Kenya.

Non-refoulement

The principle of non-refoulement is one that prohibits States from returning a refugee or an asylum seeker to territories that pose a risk to their lives and freedom on account of race, religion, nationality, political opinion, and membership to a social group. From a human rights perspective, the principle allows for no limitation or derogation. The principle is also progressively mutating to be jus cogens. This means that the principle is to be observed strictly.

This principle is also in line with the international laws that prohibit and prevent torture. The UNCHR has thus been tasked with the key role to provide international protection of refugees. It is therefore the mandate of the UNCHR to find solutions to the problem of refugees. One of the mandates includes working in cohorts with governments to facilitate voluntary repatriation of the refugees or assimilation within their new territories.

As is expressly manifest from the Refugee Convention of 1951, its provisions bind Kenya, being a contracting state and more particularly, it is bound by provisions of its own Constitution and the Refugees Act no. 13 of 2006. Refugees, who thus come to the effective control and jurisdiction of Kenya, enjoy the protection afforded to them by the outlined laws. Being under the jurisdiction of the state means that when refugees come under the effective control of Kenya or are affected by actions of those acting on behalf of Kenya whether within or without the national territory then the laws above apply.

Article 1A of the Convention provides that a refugee is any 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, is unable or, owing to such fear, is unwilling to return to it.

Being a refugee is not a formal status conferred by municipal law. Thus in the spirit of the convention even if entry to state is illegal, refoulement is not an option because the dangers of it overweigh the penalties that may be imposed for illegal entry. Of importance to this piece are the exceptions under Article 33(2) of the 1951 convention which are interrogated in line with Kenya’s actions to repatriate refugees. First and foremost the convention as well as the Refugee Act do not recognize a person as a refugee when they have committed international crimes or when they have committed serious crimes which are non political in nature or are guilty of acts which are contrary to the purposes and principles of the UN.

The principle of non-refoulement does not apply to a refugee who, having been convicted previously of a serious crime, constitutes a danger to the community or the country of refugee. Whereas it is true that there exists exceptions to the principle of non refoulement on ‘overriding reasons of national security’ in order to safe guard the population, a state should first and foremost consider granting the person concerned an opportunity whether by provisional asylum or otherwise of going to another safe state. The only permissible exceptions on non-refoulement are on grounds of national security and public safety though the rule here is that the threat posed by the refugee should overweigh the threat to their life if he/she is repatriated.

This exception has to be interpreted restrictively. True to Kenya’s action, what may constitute a national security concern will play out on the state’s margin of appreciation though it cannot be based on any unreasonable threat and blanket condemnation. Secondly, situations of national security in relation to expulsion of refugees have to be assessed on a case-by-case basis where the danger posed by the particular refugee outweighs the threats posed to him or her if repatriated. In any event any action by the state to repatriate has to be hinged on the proportionality principle where the danger, imminence and seriousness of a case has to be assessed.

In the spirit of its international obligations under the 1951 convention, Kenya passed the Refugee Act no. 13 of 2006 which provides among others that cessation of refugee status has to be voluntary (s. 5). Section 18 of the Act specifically provides for the principle of non-refoulement, which is more or less the same as the provision in the convention.

Kenya’s obligation under the 1951 convention is also reiterated under section 16.  Notably under section 21 of the Act, it allows for expulsion of refugees on the ground of national security or public order. This however comes after consultation between the minister concerned with refugees and the one in charge of security. The wording of the provision is however suggestive that the expulsions are to be on a case by case analysis with sufficient reasons as clearly illustrated above on the exceptions to the principle of non-refoulement principle.

And also, this being an administrative act, then it has to meet the constitutional principle under Article 47 and the Fair Administrative Action Act of 2015, which under its section 12 incorporates the principles of natural justice and fair hearing before any administrative decision is made. Additionally the Constitution of Kenya 2010 makes Kenya’s obligation under international law more solid as it introduces a paradigm shift to the application of international law. During the pre-2010 Constitutional era, international law had to be ratified and domesticated for it to apply as a source of law in Kenya. Presently, general rules of international law (customary international law) and treaties/conventions ratified by Kenya form part of the laws of Kenya. Whereas there is still a contention as to whether Kenya is still a dualist or monist state, scholars and institutions alike have observed that the effect of Article 2 (6) is that Kenya is now a monist state. The Constitutional Implementation commission CIC (now defunct) observed that:

This provision while recognising that all international and regional instruments, to which Kenya is party to, form part of the laws of Kenya also has the effect of making Kenya a Monist state, which is a shift from the Dualist state which Kenya was prior to the promulgation of the Constitution 2010.

Thus Kenya is under an obligation to observe the non-refoulement principle to the latter.

The Security threat is unrelated to the refugee question

In as much as the refugee question has been flagged as one of the reasons of escalated insecurity in the country, nothing could be further from the truth. The KNCHR in its occasional report identified the following to be the drivers of insecurity in Kenya; massive youth unemployment, poor working conditions amongst officers, endemic corruption, slow pace of security sector reforms, rise in noncore police demands, lack of coordination among security agencies and political and resource driven conflicts.

It also identified the following key recommendations; security sector reforms which include adequate funding and training of security institutions and agencies, ending corruption, dealing with security lapses such us lack of co-ordination between security agencies, revision of the police curriculum, sensitization of citizens on national cohesion, dealing with youth unemployment and making public security inquiry reports. The refugee question, even if it is one of the reasons of insecurity in the country, is not a major reason and it has to be handled with caution because there is no guarantee that even if the massive repatriation is conducted, insecurity would be a past tense. The organization of terrorist/criminal conduct can be organized from anywhere even if not in Daadab, what is key is that the state has to deal with the key drivers of insecurity and stop the massive repatriation, which will not address the issue of insecurity.

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