Two Wrongs Don’t Make a Right; Why Kenya Must Consider and Respect Refugee Rights amidst the Terrorism Discussions

The African culture is a very welcoming one. Going back ages, Africans are known to be best at offering a shoulder to their neighbors in times of adversity. In Kenya for example, foreign nationals tend to feel comfortable fast and assimilate more easily than when Africans relocate or even visit Europe or the Americas.

It is therefore no surprise that Kenya hosts one of the largest refugee camps in the world. It is not just about our proximity to conflict prone countries or the economic advantages we are likely to get as development partners come in to assist with the issues, but more importantly an appreciation of the importance of protecting the dignity of these neighbors in their greatest hour of need – a concept that sadly immediately disappears once a conflict breaks out.

Neighborliness aside, the willingness to host gives birth to certain obligations internationally recognized and respected. The fact that the Kenyan Parliament saw if fit to make legislation in the form of the Refugees Act no. 13 of 2006 and its implementation including setting up the Department for Refugee Affairs (DRA), as an attempt to domesticate and implement the 1951 UN Convention, its 1967 Protocol and the 1969 O(AU) Convention reflects the importance of these obligations.

As implementation of these laws continues, including by the courts in a recent progressive decision where the court quashed the government’s decision to return refugees to camps terming the policy as unreasonable and a violation of several interdependent fundamental rights and freedoms of refugees including the freedom of movement, and the important non-refoulement principle, it is imperative that we reflect not only on the reasons for hosting the largest refugee camp in the world but importantly the decision to be bound by international law.

This is in light of the remarks from various quarters, most recently by the Chair of the Committee on Administration and National Security as a reaction to the Westgate Mall terror attacks, calling for the closure of the Dadaab Refugee Camps. Was this playing to the public gallery? Was this an informed reaction based on a yet-to-be released report on the possible cause of the terrorist attack? Isn’t whipping up the emotions of the public a contradiction of the obligations under refugee laws that govern our country and an outright violation of rights which the court has already made a decision on?

The state through its implementing office the DRA is obligated, as established by Kenyan Law, to develop policies, promote durable solutions, coordinate international assistance, registration, and the management of refugee camps. The state generally is under constitutional obligation to guarantee the dignity of all within its borders – including those we host at the refugee camps.

As the ‘dust’ settles on the Westgate attack and hard questions are asked about the reasons why it happened and whether it could have been thwarted, a few issues emerge, with the conduct of security officers and border officials taking prominence. Unfortunately the moment such hard questions are raised and the government is pressed against a wall to give answers and to act, the custom has been to divert attention by targeting refugees – an already vulnerably group – to whip up public emotions.

Hosting refugees without a doubt raises different national security dimensions. These include military security, political security, economic security, societal security and environmental security. For example, the fact that admitting refugees leads to a challenge of the traditional notions about membership within a state, the meaning of nationality and citizenship and the rights and duties of citizens towards their state and vice versa, can be viewed as a threat to societal security. This however does not absolve government from its obligation of implementing long term security interests that uphold the rule of law.

The Dadaab refugee camps located in a historically marginalized part of Kenya near the Kenya-Somalia border was created in 1991 to host 90,000 but according to UNHCR 2013 Planning Figures for Kenya, it is now home to over half a million refugees. It represents one of the largest and most protracted refugee situations in the world. In addition to ongoing conflicts, the famine that hit the Horn of Africa Region in 2010 led to an explosion of the population in the camp. The famine may have ended but the humanitarian crisis still subsists due to the violence and armed conflicts ongoing in many parts of Somalia. The AMISOM intervention strengthened by the Kenya Defense Forces (KDF) operations in Somalia has not extinguished the threat of persecution, violence and armed conflict.

The camps though managed by the UNHCR in partnership with DRA and other Nongovernmental Organisations (NGOs), were established with prior authorization from the Government of Kenya. Registration of persons fleeing persecution and violence enables the collection of demographic data and the identification of unaccompanied children, vulnerable individuals etc. It further enables the screening of individuals for security, health and other reasons.

The infiltration of the camps by alleged Al Shabaab members has led to a deterioration of security at the camps leading to a victimization of the Refugees by both the alleged members of the militant group but also by officers of Kenya’s National Police Service. Threats and killings by Al Shabaab as punishment for cooperation with the police on one hand and arrest and torture by the police for failing to cooperate is the order of the day for these refugees.

The growing disregard for the well-being of the refugee population and growing refugee hostility by state and host communities – more often politically instigated, leading to growing hostility  towards Kenyan authorities is a huge threat to Kenya’s national security as if offers the potential for sympathetic platform for Al Shabaab adherents to prepare and launch attacks. As more questions are raised about the Westgate attack, the conduct of corrupt immigration officers and security officers who callously disregard intelligence reports of serious security threats in addition to their involvement in criminal activities themselves, is very worrying for our country.

Will a closure of the camps necessarily lead to a decline in the utter unprofessional conduct of immigration and security agencies? Doesn’t the fleeing of refugees to other parts of the country or to the Kakuma Refugee Camp (as is a growing trend) since the conditions in their home countries might not be conducive for their return mean that the utterances by members of parliament and government officials are merely attempts to divert attention without addressing the core issues that led to high levels of insecurity over the past few years? Have the officials thought through the logistical implications of closing down an over two decade national and international operation, and a further displacement of over half a million plus persons, and the effect of such an abrupt action for the region?

Living conditions at the Dadaab Refugee Camps are worrying but even more worrying are the conditions these women, children, infirm and elderly persons would face if they were to be abruptly and forcefully repatriated to their countries either by being transported back or being left with no choice but to go back due to hostility in Kenya and the closure of the camps.

Immigration laws give Kenyan authorities the right to regulate who is present on its territory and may prevent some from entering or remaining in Kenya upon conducting individual background reviews. This however has to be balanced against the likelihood of torture or cruel, inhuman and degrading treatment in the event of refoulement. 

Anyone can end up a refugee a case in point being the Kenyans who escaped to Uganda following the 2007-2008 post-election violence, as well as Internally Displaced Persons (IDPs). No one relishes being in this state. The reason why discussions over the years have evolved from exclusively offering humanitarian assistance to a push by the host state national and international organisations for durable solutions which include voluntary repatriation, local integration and resettlement, attest to the temporary nature of the refugee state.

Refugees in solidarity with the victims of the Westgate attack and Kenyans generally, donated blood and money proving their ‘oneness’ with us. Our welcoming nature as Kenyans coupled with our respect for the rule law will prompt us to not only accord this vulnerable group the dignity they so rightly deserve, but equally to push the government to institute measures to address the core issues plaguing the security of our country.