THE BELOW ARTICLE WAS PUBLISHED IN THE WEEKEND EDITION OF THE STAR NEWSPAPER - 5/04/2014
IMPOVERISHED: Refugee women wait for food rations at Dadaab camp. The government?s newest encampment seems to care little about the dignity of refugees. Photo/File
The massive use of force by the government, often to kill innocent people, violates several provisions of the constitution. And its treatment of refugees violates Kenya’s obligations under international law. Ever since it came in power, the government has shown no respect for the rule of law. Article 2 proclaims the supremacy of the constitution. Anything done outside the constitution is void. No one can claim or exercise authority that is not recognised by it. Article 10 emphasizes two of the key national values of leadership and governance: the rule of law and good governance.
The senseless killing of innocent people at the hands of criminals in the Coast last week deserves unreserved condemnation. However, it would be wrong to allow security agencies to continuously window-dress efforts towards national security by doing what someone recently termed in the social media as “charging, trying, convicting, sentencing, executing …then carrying out investigations and collecting evidence.”
Last week, following the gun attack at the Coast, the Cabinet Secretary immediately ordered the closure of registration centres and a return to the camp of over 50,000 refugees residing outside refugee camps. On March 28, he gazetted these camps as designated areas under section 16(2) of the Refugee Act, 2006 – something that the government had failed to do since the opening of these camps, which were set up mainly to handle humanitarian issues and not as places where persons seeking protection from persecution and dignity would be locked up. Serious questions arise whether the Cabinet Secretary acted constitutionally.
The directive ordering a closure of registration camps in urban areas and a return of all refugees to the refugee camps followed earlier utterances by the Cabinet Minister calling for a closure of the Daadab refugee camps in violation of a Voluntary Repatriation Agreement to which Kenya is a party. Which of these ‘road-side’ utterances should be viewed as policy? Is it the return of all refugees to the camp? Or a return of all refugees and asylum seekers to a camp already declared closed? Does the Cabinet Secretary understand the Refugee Act, the Constitution and international law that require state parties to ensure that any policies made are in line with provisions of the treaties?
Kenya is a signatory of both the United Nations Convention Relating to the Status of Refugees (Refugee Convention), and the AU Convention Governing Specific Aspects of Refugee Problems in Africa. These Conventions provide minimum safeguards to refugees which the directive of the Cabinet Secretary has flouted.
The recent directive follows a similar one in December 2012 which was subsequently declared unconstitutional by the High Court in July 2013, because the state failed to provide any evidence linking the residence of refugees in urban areas with the rise of insecurity across the country. Instead, the directive was seen as perpetuating marginalization, violating the rights of a specific group and disregard of the Constitution.
The High Court order to reopen centres and resume registration was disobeyed by the state until about a month ago when registration of refugees resumed. The Department of Refugee Affairs (DRA) hired staff to handle almost 500 applications for registration daily. The directive brings to a halt this registration exercise.
Was the decision to hire personnel and resume registration discussed and agreed upon by state actors? Was the subsequent quashing of this registration exercise discussed by these state actors? Is there coordination and cooperation between government departments to improve service delivery and reduce wastage? The above conflicting actions leave many questions unanswered.
The failure to register persons entering Kenya means the government knows nothing about close to 8,000 persons who have recently entered Kenya. It is indicative of misplaced priorities, leaving the country vulnerable to attacks by foreigners. Dumping thousands of persons, registered or not, in refugee camps already bursting with large populations living in squalor is a bigger threat to security, not to mention to human dignity (protected by the Constitution)..
A while back, to improve service delivery, the Ministry of Immigration’s Department of Refugee Affairs, at the recommendation of people in the refugee protection sector, opened registration centres in urban areas – Nairobi, Mombasa, Malindi, Nakuru and Isiolo. These centres have over the years significantly eased the pressure on refugee camps during mass influx of asylum seekers from neighbouring countries.
These centres are not only used for reception and registration, but also for renewal of identification documents, issuance of convention travel documents, and issuance of movement passes – refugees are required to acquire documentation in order to move or travel from where they reside.
If for example a refugee gives birth to a child, father, mother and child will go to such a centre to get a movement pass to enable them to travel to the camp in order to register this new bundle of joy. If a person does not get a movement pass, for example, due to the fact that DRA offices are closed following an illegal and unconstitutional directive, and they still opt to travel, father, mother and child will be arrested and held in a police cell, and later charged with residing outside designated areas (if they do not desperately try to bribe their way out). If the police decide to take and tear up their documents, father, mother and child will be charged with being unlawfully present in Kenya. Does this system really work in our favour? Does it work in anyone’s favour?
One of the issues discussed in the court judgement mentioned earlier was the issue of dignity of refugees. Yet, the government’s newest encampment seems to care little about their dignity. The deplorable conditions subsisting in the refugee camps are common knowledge. The indignity with which women, children, the old and persons with disabilities live in these camps due to their inability to gainfully fend for themselves is appalling. No human being deserves to be subjected to such conditions.
In fact, evidence tendered in court during the hearing of the petition indicated that many refugees avoid camps because they find them traumatizing. Many have escaped physical and sexual violence, hunger, insecurity and disease at these camps to the cities and towns where from scratch, they have made a living to sustain themselves and their families. The number of children born to these persons is large – children who have never lived, and known nothing about life in the camps – yet they are forced into camps because the state has seen a scapegoat in them and has failed to tackle fundamental concerns that have led to an increase in cases of insecurity.
Populist utterances and decisions by state officials in an attempt to address security concerns have gained popularity among Kenyans. It has become common to see Kenyans on social media baying for the blood of every single Somali or Muslim, whether Kenyan or not. Many castigate so-called human rights activists for siding with victims and defending actions of “terrorists”.
Indeed, a March, 2014 poll released by Ipsos Synovate showed that Kenyans identified among other reasons, insecurity as one of the most serious problems facing the country. The recent attacks including one that sadly left a bullet lodged in a child’s head surely must have increased the number of persons who feel that the country has become more insecure and that the state is doing nothing about it.
It is therefore easy for the state, to avoid criticism and divert attention, to look for an immediate group to blame. As a reaction, some Kenyans have called for a suspension of refugees’ rights to guarantee security. What they may not realize is that it is very easy to find oneself as a minority. While today it might be an easy option to deal with persons who are or look foreign, it will be an equally an easy option to deal with another group, this time of Kenyans. The government has already proved its ability to ruthlessly clamp down on dissent by unapologetically violating fundamental rights and freedoms. The rule of law must be upheld and inform any strategies towards meaningful, sustainable reforms and policy to tackle insecurity in Kenya.
The state cannot claim lawlessness by a section of the population even as it sets the pace in disobedience of court orders which constitutes lawlessness – itself a recipe for anarchy. It is unfortunate that even after an elaborate and clear judgement from the High Court invalidating the directive to send all urban refugees to the camps, the state has largely ignored it, inventing new ways to circumvent it.
The writer is an advocate of the high court and human rights scholar.
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