High Court Strikes Down Cap on the Number of Refugees in Kenya; Other Damaging Provisions Remain

On 23 February 2015, Kenya’s High Court struck down a controversial provision in the newly passed Security Laws (Amendment) Act 2014 (“the Security Act”) which limited the number of asylum seekers and refugees in Kenya to 150,000 persons. Other provisions that are still in place, however, threaten to restrict the rights of refugees by tightening up restrictions on refugee freedom of movement and by narrowing the time limit for asylum seekers to submit requests for refugee status.

Background

Kenya is the second largest refugee-hosting country in Africa, providing shelter to almost 600,000 officially registered refugees, mostly from Somalia (462,970) and South Sudan (97,780) (UNHCR). However, in recent years Kenya has become a rather unwelcoming host for many of these guests. In the light of increased attacks conducted by the Somalia-based militant group al-Shabaab inside Kenya, refugees – in particular Somali refugees – have repeatedly become the target of harsh discrimination, often in violation of international law.

The government claims that the Security Act is meant to give the Kenyan authorities extended powers to fight terror threats, but it has been criticised by Kenyan opposition groups, civil society and foreign governments alike for the limitations it imposes on fundamental rights and freedoms. Along with dozens of clauses that deal with issues such as the rights to freedom of speech, assembly and association, the Security Act also includes four clauses that amend Kenya’s Refugee Act of 2006 (“the Refugee Act”). These provisions form part of a pattern of Kenya efforts to keep Somali refugees in isolated camps or, preferably, out of the country.

Threats of refoulement

The most fundamental change that the new legislation would have had on Kenya’s refugee policy would have been the introduction of a new section to the Refugee Act limiting the number of refugees allowed in Kenya to 150,000 (Clause 48 of the Security Act). This number could have been changed – increased or decreased – by the Kenyan National Assembly, for a period of 6-12 months. This section, however, was annulled by Kenya’s High Court together with seven other clauses of the Security Act on 23 February 2015

Prior to the High Court decision in February, on 2 January 2015 Justice George Odunga temporarily suspended the implementation of eight provisions of the Act, including this one. In his decision, Justice Odunga explained that the “effect of the implementation of this amendment would be the immediate reduction of the number of refugees which may lead to evacuation of some of them from the refugee camps and deportation of not a small number of refugees from the country”.

With more than 590,000 officially registered refugees in Kenya on the passage of the Security Act, it is somewhat unclear how the Kenyan government was planning to implement this clause. It would require the allocation of immense resources, and would be impossible to implement in the short term without violating the country’s obligations under international law and its own constitution. If forced repatriations were carried out in order to bring this number down to 150,000 this would amount to refoulement, a violation of customary international law, which also forms part of the law of Kenya under its Constitution (Constitution of Kenya, Article 2(5)).

It is interesting to note that 150,000 is more or less the number of officially registered refugees in Kenya who are not of Somali origin, raising questions about whether such a deportation plan might also have violated international law provisions prohibiting discrimination. Had the Kenya government started implementing its new legislation, it is likely that Somali refugees would have been the first ones to be pushed out of the country.

Although the scope of this new legislation is unprecedented in Kenya, it is part of a pattern that is not particularly new, as Kenya has been seeking a way to limit Somali refugees and promote their repatriation for a number of years. For instance, in November 2013, Kenya, Somalia and UNHCR signed the Tripartite Agreement “governing the voluntary repatriation of Somali refugees living in Kenya”. The agreement recognised Somali refugees’ right of return and stressed the importance of voluntary repatriation as a durable solution to the problems of refugees.

Even though the Tripartite Agreement included Kenya’s agreement to “continue to provide protection and assistance to all refugees until durable solutions are attained in accordance with national and international law” (Article 24(x)), the new cap on the number of refugees in the Security Act suggests that – as indeed very often happens when the possibility of voluntary repatriation is brought up with governments that are eager to send foreigners away – the Kenyan government might (mis)understand the agreement as giving it carte blanche to deny asylum to Somali refugees.

It is also quite possible that this new limitation – had it been implemented – would have led the country to close its borders to new refugees, as it had done previously in 2007. Such a border closure would have been in violation of Article 18 of Kenya’s Refugee Act, which notes that access to the territory cannot be refused where this refusal would expose the affected person to persecution, and similar provisions in international law. In addition, the “effectiveness” of such a measure is questionable: Human Rights Watch estimated that approximately 150,000 Somali refugees entered Kenya through the officially closed border in 2007-2010. In addition, in the name of protecting the then-closed border and Kenya’s security, authorities in the area committed widespread human rights violations and deported thousands of refugees and asylum seekers back to Somalia.

Restricted to refugee camps

With the limit on the number of refugees invalidated, the most significant change the new Security Act introduces to the Refugee Act is tightening of restrictions requiring refugees to remain in Kenya’s remote refugee camps, Kakuma and Dadaab. Prior to the amendment, the Refugee Act already provided that any person who “resides without authority outside the designated areas” was guilty of an offence against the act (Refugee Act, Article 25(f)). The new Security Act, however, tightens these provisions by making it clear that asylum seekers must remain within refugee camps whilst their applications are being processed (Security Act, Article 46), and that also recognised refugees “shall not leave the designated refugee camp without the permission of the Refugee Camp Officer” (Security Act, Article 47). Living in one of Kenya’s refugee camps is now a condition of residence in the country.

This restriction flies in the face of the internationally recognised right of refugees to freedom of movement. Article 26 of the 1951 UN Convention relating to the status of refugees provides that “refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory”. In addition, it flies in the face of new policy guidance which encourages freedom of movement. In its new policy on alternatives to camps that was released only a few months ago UNHCR states it will pursue alternatives to camps whenever possible, recognising that camps “can have significant negative impacts over the longer term for all concerned,” and that pursuing alternatives to them means working to ensure that “refugees have the possibility to live with greater dignity, independence and normality as members of the community”.

However, this is not the first time Kenya has sought to restrict refugees to camps. With Somali refugees constantly being accused of Kenya’s terror and insecurity, the country has adopted policies that restrict refugees’ freedom of movement since the early 1990’s, including several attempts by the Kenyan government to expel refugees from urban areas as a whole.

In December 2012, the government of Kenya, through the Department of Refugee Affairs, ordered all refugees residing in urban areas to report to Dadaab or Kakuma, stating that it ultimately intended to move them “to their home countries after the necessary arrangements are put in place.” Following a petition filed by the NGO Kituo Cha Sheria, the High Court annulled these plans in July 2013, noting that: “the implementation of the overall policy of relocation and encampment … particularly in regard to the imposition of conditions created by the implementation of Government Directive may violate the State international refugee protection obligations. Furthermore, aggressive pursuit of such a policy may have the effect of constructively repatriating urban refugees back to the countries from which they had fled.”

In spite of this, in March 2014, the government once again ordered all refugees to report to refugee camps. The following month the counter terror operation “Usalama Watch” begun and saw a wave of discriminatory human right violations committed against the Somali community, including violent mass round ups and expulsions of hundreds, including separated children, to refugee camps as well as to Somalia.

New time limitation for applying for asylum

Finally, the new Security Act introduces new wording that limits the time asylum seekers have to apply for asylum once they enter the country. Previously, Section 11 (1) of the Refugee Act held that a refugee who entered Kenya, whether lawfully or otherwise, and wished to remain in the country and be granted asylum, must “make his intentions known by appearing in person before the Commissioner immediately upon his entry or, in any case, within thirty days after his entry into Kenya.” Under the new amendment (clause 45) the thirty days limitation is cancelled, and all refugees must avail themselves in person before the Commissioner “immediately” upon their entry. Failing to do so may lead to the rejection of his or her application.

This change was not annulled by the court and its full implications will only come to light once the authorities start implementing and interpreting it (and defining the term “immediately”). However, in the light of the other changes, it seems that urban refugees were being specifically targeted with this new wording. When refugees are entering the country and heading straight to a refugee camp, they do have little option but to make their intention to apply for asylum clear as they are often registered automatically. Urban refugees, on the other hand, often face difficulty. They may not know where registration takes place or know how to get there. In addition the may not necessarily need to do so in order to sustain themselves. In this context, they are likely to be the victims of the new wording.

It should be noted that this change in the wording will not affect sur-place refugees who lawfully reside in Kenya but cannot go back to their country, as their right to apply for asylum is recognized in the Refugee Act regardless of the new change (section 11(2)), as long as they apply for asylum prior to the expiration of their lawful stay in the country.

Coming soon: a wall against terrorists and refugees?

Shortly after the High Court ruling was released – whether by coincidence or not –Kenyan plans to build a wall on a portion of the border with Somalia, in Lamu County came to light. As the border between Kenya and Somalia is about 700 km in total and Lamu occupies only a tiny part of it, it is unclear what will the consequences of such a fence would be on the ground. Just as in other cases of constructing border fences around the world, however, this new initiative represents the view that fighting terror means fighting migrants. As Lamu Governor said, the fence will “secure this region and indeed, the country as a whole,” and is to be build “where immigrants have been arrested trying to cross into the country.”

Kenya’s High Court might have annulled the clause that capped the number of refugees and asylum seekers allowed in Kenya, but this can hardly be celebrated as a victory. Kenya’s strict encampment policy is still in place; the government still associates Somali refugees with security threats and terror and will continue to seek their voluntary or not-so-voluntary repatriation in different means. Finally, this is also a reminder that courts, however essential, are only one front in the struggle to ensure human rights are respected.

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