THE PLACE OF REFUGEE RIGHTS IN THE 21ST CENTURY IN THE ADVENT OF NATIONAL SECURITY THREATS

By Valerie Mugaza.
Llb. Riara University.

 “I know a few things to be true. I do not know where I am going, where I have come from is disappearing, I am unwelcome and my beauty is not beauty here. My body is burning with the shame of not belonging, my body is longing. I am the sin of memory and the absence of memory. Thank God all of this is better than a scent of a woman completely on fire, or fourteen men between my legs, or a gun, or a promise, or a lie, or his name or his manhood in my mouth’’

- Warsan Shire 

This paper is a story. A story about many people like the one above, whose lives have been defined by uncertainty, abuse, pain, running… The only hope they can have, and they do, is that of like adopted children; being taken in. Being needed; being wanted.

In this paper the focus will majorly be in the following areas: who refugees are, Refugee status determination (RSD), Rights and Duties of refugees, Persons excluded from refugee protection, the refugee problems in Kenya and Africa, Refugee rights, What entails National security, The place of refugee rights in the 21st century in the advent of national security threats and Whether the burden of responsibility lies on the domestic administrative regulations or on the refugees. 

Using international and national law, decided cases and statutes as the cement for my research paper, I hope to do justice to the theme of day.

 Who Is a Refugee?

Refugees are among the most vulnerable people in the world. States have been granting protection to individuals and groups fleeing persecution for centuries; however, the modern refugee regime is largely the product of the second half of the 20th century. Modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it.  

Article 14 (1) of the Universal Declaration of Human Rights (U.D.H.R)  guarantees the right to seek and enjoy asylum in other countries; other regional human rights instruments have elaborated on this right. 

Article 1 (A) (2) of the 1951 Convention defines a refugee as [an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well founded fear of persecution based on his race, religion, nationality, political opinion, or membership in a particular social group.] 

The Refugee Act of 2006 of the laws of Kenya combines definitions of both the 1951 and the O.A.U Conventions under section 3 (1) (a).  Section 3 (1) (b) defines a prima facie refugee. 

“They are safe but they are not in their homes. They are city- less. I think it’s just a disaster for everyone.”

- Teri Hatcher 

How do you determine a refugee (Refugee Status Determination)?

A person is a refugee within the meaning of the 1951 convention as soon as he fulfills the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him one. He does not become a refugee because of recognition, but it is recognized because he is a refugee.

The provisions of the 1951 convention defining who is a refugee consists of three parts, which have been termed respectively “inclusion”, “cessation” and “exclusion” clauses. 

There may be many reasons that are compelling and understandable, but only one motive has been single out to denote a refugee, the expression “owing to well – founded fear of being persecuted”. For the reason stated, by indicating a specific motive automatically makes all other reasons for escape irrelevant to the definition. 

An applicant for refugee status must normally show good reason why he individually fears persecution. It may be assumed that a person has well- founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 convention.  

There is no universally accepted definition of “persecution”. From Article 33 of the 1951 convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion, or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons, would also constitute persecution.

In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory.

In order for a person to be considered a refugee, a person must show a well-founded fear of persecution for reasons of [race, religion, nationality, membership of a particular social group or political opinion]. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for persecution.

“So often the world sits idly by, watching ethnic conflicts flare up, as if these were mere entertainment rather than human beings whose lives are being destroyed. Should the existence of even one single refugee be a cause for alarm throughout the world? “

- Urkhan Alakbarov

Persons Excluded from refugee protection

The “cessation clauses” [ Article 1 c (1) to (6) of the 1951 convention] spell out the conditions under which a refugee ceases to be a refugee. They are based on the consideration that international protection should not be granted whether it is no longer necessary or justified. 

Once a person’s status as a refugee has been determined, it is maintained unless he comes within the terms of the cessation Clauses. This strict approach towards the determination of refugee status results from the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes. 

Of the 6 cessation clauses, the first four reflect a change in the situation of the refugee that has been brought about by himself, namely:

1. Voluntary re-availment of national protection;

2. Voluntary re-acquisition of nationality;

3. Acquisition of a new nationality;

4. Voluntary re-establishment in the country where persecution was feared.

The 1951 convention, in Sections D,E and F of article 1, contains provisions whereby persons otherwise having the characteristics of refugees, as defined in Article 1, section A, are excluded from refugee status. Such person shall fall into three groups. The first group, Article 1 (d) consists of persons already receiving United Nations protection or assistance; the second group Article 1 (E) deals with persons who are not considered to be in need of international protection; and the third group Article 1 (f) enumerates the categories of persons who are not considered deserving on international protection. 

Normally it will be during the process of determining a person’s refugee status that the facts leading to exclusion under these clauses will emerge. It may, however, also happen that facts justifying exclusion will become known only after the person has been recognized as a refugee. In such cases, the exclusion clause will call for a cancellation of the decision previously taken.  

“At least in Somalia we can still try to do something with our lives, although it is not easy because of the fighting. But I prefer Somalia to [a refugee camp], where there is nothing one can do. If something goes wrong in Somalia, I will die in my country. If I have to choose my death, I prefer to be shot dead in Somalia than to starve to death in [a camp]” (Verdirame 1999).

- In the words of a Somali refugee interviewed for a research study

The Refugee Problems In Kenya And Africa

Somali Refugees In Kenya: Security Deficiencies and Public Health Concerns as A result of ineffective policy

Somalia is home to approximately 9 million people , the overwhelming majority of whom are ethnic Somali.  The largest recipient of Somali refugees in Africa is Kenya, with an influx of thousands more every month for the last twenty years roughly.

It is not uncommon for Somalis to migrate into Nairobi.  

“Kenya is home to [a substantial indigenous Somali Kenyan population (Lindley 2007) living mainly in the North Eastern Province]. The history of Somali Kenyans can be traced back to pre-colonialist times; thus, while they differ ethnically from the majority Bantu population in Kenya, the group is, nevertheless, considered Kenyan citizens and not the refugees’’.

This makes obvious the philosophical question surrounding refugees in Kenya: What is the purpose of allowing refugees into a country?  Although the government has legally abided by the above statutes, it has also created numerous informal and unwritten policies to afford no extra rights or luxuries to refugees.  

From an ethical standpoint, conditions in the camps should surely be livable and up to international standards. However, how long should a refugee reside in a camp? Could generous living arrangements increase the likelihood that a refugee will not return home or attempt to build a new life? 

Nearly all refugees who do not live within an official camp reside in Eastleigh Although a substantial amount of legitimate business occurs within Eastleigh, there is still an overwhelming presence of illicit activities. 

This is creating a difficult task for the Kenyan Police. Maintaining one of the highest crime rates in Nairobi, Eastleigh frequently experiences unannounced raids by police to check the identification documents of Somalis. The government’s policy makes being found outside of refugee camp grounds for arrest or detainment” (Nyaoro 2010).  

Of course, the lack of clear refugee legislation in Kenya makes this a very ambiguous situation, whereby a Somali refugee can be detained for extended periods of time and harassed by the police, only to end up not being officially charged with a crime. The raids conducted by police are frequently in response to anti-Somali sentiment felt by many Kenyans and are indicative of a long and painful relationship between Somalis and Kenyans. 

Any significant event that involves terrorism in Kenya almost certainly brings an increased distrust towards Somalis and a subsequent police raid into Eastleigh. 

Daniel Arap Moi instituted a policy in 2001 that officially closed the Kenya-Somali border. The border closing appeared to take place more so in theory than in practice, due to the extensive land border, difficult terrain, and lack of police and immigration officials. 

The Refugee Camps

Dadaab is a town in the North Eastern Province that houses three refugee camps: Ifo, Hagadera, and Dagahaley. Due to its mere 80 kilometer proximity to Somalia, the overwhelming majority of refugees in the camp are Somali.  The numbers are only expected to grow within the next several years, assuming that the fighting in Somalia does not terminate. The problems in Dadaab are extensive 

There are simply not enough healthcare professionals in Dadaab to effectively deal with a disease outbreak or, for that matter, routine care. UNHCR estimates that there is one health center in Dadaab for every 17,000 refugees – a number that is far below the minimum international standards (HRW 2009). 

The U.S. Government began an initiative in 2010, working in conjunction with UNHCR and KEMRI [Kenya Medical Research Institute], to improve healthcare among refugees in Dadaab. A highly functioning laboratory was built at the camp’s main hospital in Dadaab, .Many of the problems facing Dadaab are similar to those in the Kakuma refugee camp . 

One of the devastating problems facing Dadaab and Kakuma is crime within the camps. Since the camps are, in essence, cities, it is not farfetched that some forms of crime exist within the borders.  Somali refugees enter Kenya from a country that has no formal legal system. Most punishments In Somalia occur by clan elders without any involvement by the government. 

The security situations and terrestrial remoteness surrounding both camps give police officers leeway in dealing with Somali refugees.  Even with new camps being built, it would be a nearly impossible task to fully solve the refugee crisis. Thousands of Somalis continue to enter into Kenya every month and, while the Kenyan Government would rather not get involved, it is obligated to allow every refugee to enter. 

The most difficult task is finding a feasible balance whereby Kenyans can feel safe and refugees can be given aid. There are no indications that Somalis will stop entering Kenya and, as the last several decades have shown, neglecting refugees [whether in Eastleigh or in a camp] will not make the problem disappear. Instead, the government must work closely with the UNHCR and other nongovernmental organizations to, at the very least, improve living conditions among refugees from one year to the next

The fact remains that, “you cannot create an island of security in a sea of insecurity” (Crisp 2000).

- in the words of a UNHCR official in Kenya

The Rights And Duties of a Refugee

“While every refugee’s story is different and their anguish personal, they all share a common thread of uncommon courage: The courage not only to survive, but to persevere and rebuild shattered lives”

- Antonio Gueterres UNCHR High commissioner

The universal Declaration of Human Rights states that :

[ All human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,property, birth or other status,]

Refugees are human beings who have a right to equally enjoy the civil, cultural, economic, political and social rights as stated above; without prejudice or stigma of the misfortunes of having seeking asylum, or being called a refugee. 

The African Charter on Human and Peoples' Rights [also known as the Banjul Charter] is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent.  Article 12 of the Banjul charter is a very essential authority in discussing matters of refugees, especially within Africa.  . Article 12 (5) prohibits the mass expulsion of non-nationals. 

[The International Covenants on Human Rights recognize that the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy civil, cultural, economic, political and social rights].

Freedom from Discrimination

 Discrimination undermines the fulfillment of economic, social and cultural rights for a significant proportion of the world’s population. Economic growth has not, in itself, led to sustainable development, and individuals and groups of individuals continue to face socio-economic inequality, often because of entrenched historical and contemporary forms of discrimination. 

Non-discrimination and equality are fundamental components of international human

rights law and essential to the exercise and enjoyment of economic, social and cultural rights. 

The preamble, Articles 1, paragraph 3, and 55, of the Charter of the United Nations and

article 2, paragraph 1, of the Universal Declaration of Human Rights prohibit discrimination in the enjoyment of economic, social and cultural rights. 

[The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.] 

Freedom from Prohibition of expulsion or Return ("Refoulement")

Rights of Defence against Expulsion

The principle of Non-refoulement is a concept which prohibits states from returning a refugee  or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened. 

No unlawful or mass expulsion is allowed  by the convention that would infringe upon a refugees fundamental rights and freedoms . Refugees have a right to seek asylum  and shall not be denied  on discriminatory bases.  

Right to Administrative Assistance

When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange  that such assistance be afforded to him by their own authorities  or by an international authority. 

Freedom of Movement

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.

  

Rights to Identity Papers

The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document. 

“I have learned over many years that one way people avoid public responsibility is to remain silent”

- John Menadue

THE CONSTITUION OF KENYA 2010

Article 2 (1) of the constitution of Kenya states that the constitution is the supreme law of the land and that it is binding to all persons.  In the hierarchy of laws, the constitution of Kenya 2010 is above all other written and unwritten laws. 

The national Values and principles of governance as stated in the constitution of Kenya include (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized;  Putting emphasis on human dignity, inclusiveness, human rights, non discrimination and the protection of the marginalized while referring back to the theme of day .

The constitution of Kenya gives recognition to international law as a source of law in Kenya.  Kenya is a monist state in accordance with the constitution 2010, where a treaty does not need to be domesticated in order for it to form a part of the law in Kenya, implying that all the treaties and conventions Kenya is party to are binding to the Government of Kenya without any exceptions with the all the stated treaties herein this paper. 

Therefore, the move by Kenyan parliament to pass the security (amendment) Act, 2014 is unacceptable, unlawful and should never under any circumstances be allowed to see the light of the day . In particular, the law that seeks to limit the number of refugees that Kenya can accept just one hundred and fifty thousand [150,000] is to my view ill-advised and done in bad faith.

It is sad that in this day and age countries care less about the interest of the international community but the interest of the chosen few. Security threats are a reality that we cannot as a country run away from, but also we have to wake up to the reality that terrorism threats cannot be solved by enacting more laws but by being more vigilant as a country and better enforcement of the existing laws.

THE BILL OF RIGHTS

Chapter four of the constitution of Kenya 2010 highlights the Bill Of Rights. This is an essential part of the laws in Kenya as it highlights the fundamental rights and freedoms to which all the people of Kenya are entitled to.

A recognized refugee has a range of rights pursuant to the Refugee Act of 2006.  

Under section 14 of the Act, every refugee shall be issued with a refugee identity card or pass in the prescribed form and is permitted to remain in Kenya in accordance with the provisions of the Act.  

The constitution of Kenya entitles all persons of Kenya, inclusive of refugees, freedom of movement and residence  this is further elaborated and explained in the petition presented by Kituo cha sheria against the Attorney general.  

In international law, the freedom of movement can be found in Article 12 of the ICCPR;  Article 12 of the African Charter also deals with the freedoms on movement.  

Liberty of movement is an indispensable condition for the free development of a person.  Article 12 (3) provides for exceptional circumstances in which rights (1) and (2) may be limited. 

As it was mentioned in the petition No 278 of 2011 [2013] eKLR , that freedom of movement under the constitution of Kenya relates to everyone, but the right to enter, remain and reside anywhere in Kenya is accorded only to citizens hence the state may impose reasonable conditions on non-citizens.

The constitution does not prohibit refugees from residing anywhere in Kenya. Such a right is readily available to refugees by reason of application of the 1951 convention and Article 19 (3) (b) of the constitution of Kenya. 

As it was further explained in the judgment of Kituo cha sheria case, that the application of the policy of closure of registration centers by the government in urban centers has deleterious effects of the rights and fundamental freedoms of urban refugees in several ways.

Right to Fair Administrative Action 

Article 47 of the constitution of Kenya provides that [every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.] . Section 6 and 7 of the Act states that the office of the commissioner of refugees is entitled to make decisions on administrative matters concerning refugees in Kenya; Every person who acquires refugee status under Kenyan law is required to be treated us such.

Right to Dignity

The inherent dignity of all people I a core value recognized in the constitution of Kenya. It is a guaranteed right under Article 28 and it constitutes the basis  and the inspiration for the recognition that is given to other more specific protections that are afforded by the Bill of Rights. In S v Makwanyane and Another [1995] ZACC 3 para 144 Chaskalson P said the, [the rights to life and dignity are the most important of all other personal rights]/  In the same case, paragraph 328 O’regan J stated that [The importance of dignity as a founding value of the new Constitution cannot boveremphasised.] This right to dignity is underpinned by other international human rights instruments. The U.D.H.R recognizes this right in its preamble.

NATIONAL SECURITY

National security has been defined differently  by different persons . However, simply put, it is the protection of a nation and a nation state. 

Pursuant to Article 24 (1) of the constitution of Kenya, a right or fundamental freedom in the Bill of rights shall not be limited except by law.  

Where national security is cited as a reason for imposing any restrictive measures on the enjoyment of fundamental rights, it is incumbent upon the State to demonstrate that in the circumstances, a person’s specific presence or activity is causing danger to the country and that his or her encampment would alleviate the menace. 

In the Kituo cha Sheria case , the judge stated that [Tarring a group of person known as refugees with a broad brush of criminality as a basis of a policy is inconsistent with the values that underlie an open and democratic society based on human dignity equality and freedom. A real connection must always be established between the affected persons and the danger to national security posed.] 

In the same case the judge held that the respondents had not demonstrated a rational connection between purpose of the policy and the limitations  to the petitioner’s fundamental rights. 

“There are wounds that never show on the body that are deeper and more hurtful than anything that bleeds.”

- Laurell k Hamilton 

The Place of Refugee Rights in the 21st Century in the Advent of National Security Threats

CORD coalition and the Kenya Human Rights Commission (K.H.R.C). The petitioners went to court questioning the legality of the process by which the security laws (amendment) Act 2015 were implemented and the constitutionality of some of its clauses. They sought orders to have these sections suspended.  In his ruling Judge George Odunga stated [ “What is at stake is the balancing of the need to secure the country on one hand and the protection of the Bill Of Rights on the other, both of which the state is enjoined to attain”.]

The court decided to suspend only those provisions  which disclose a danger to life and or imminent danger to the Bill Of Rights by way of conservatory orders. 

On 23rd February the High Court of Kenya,On the bench were Judges Lenaola, Mumbi Ngugi ,Onguto,Chemitei and they ruled in their wisdom that 12, 66, 42(a), 20, 26, 48 and 95 of the Security laws were unconstitutional – stating that they undermined fundamental freedoms enshrined in the Constitution.
And among this clauses was the controversial on that limited the number of refugees to be hosted at 150,000.

The Court stroke a balance between fighting terrorism and respecting human rights- J. Lenaola

CONCLUSION

Here are people, human beings; just like us. They’ve come to seek equity, the only difference is they have not clean hands for their hands are stained, stained with blood and scars of a place they once called “home”.

Memories, hope. Hope is all they have to hold on to, the hope that one day they’ll have a place to call home again. 

And here we are, rejecting them. Questioning their motives, accusing them! All in the name of national security; it’s funny how we see them as the villains, the evil people but the truth is, and it hurts. We are our own enemy…

This paper was a story. A story about people like us whose lives have been defined by uncertainty, abuse, pain, running… The only hope they can have, and they do, is that of like adopted children; being taken in. Being needed; being wanted

Be the judge.

As for me, I only have one question. Why have laws that cannot be followed? 

Having laws that are not adhered to, is like not having laws at all; you’ve got to enforce the existing laws first before you can even dream of enacting more laws. It defeats logic that Kenya is duplicating laws when it can hardly enforce the existing ones.

Yesterday the Court tested the depths of the river with both feet and thus we thank the check that has been put in place by the learned and wise judges of the High Court of Kenya.

BIBLIOGRAPHY

Websites

1. http://www.refworld.org/pdfid/4ff168782.pdf

2. http://www.ku.ac.ke/schools/law/component/content/article?id=133

3. http://www.mzalendo.com/blog/2015/01/07/why-eight-clauses-of-the-security-laws-amendment-act-were-suspended/

4. http://www.refworld.org/docid/3ae6b36c0.html

5. http://www.achpr.org/instruments/achpr/#a19

6. http://www.studentpulse.com/articles/563/somali-refugees-in-kenya-security-deficiencies-and-public-health-concerns-as-a-result-of-ineffective-policy

Books

1. African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention, (Lawyers Committee on Human Rights: New York, 1995). 

2. Awuku, E.O. “Refugee Movements in Africa and the OAU Convention on Refugees” (1996) Journal of African Law 80. 

International Treaties and Conventions

1. The United Nations Convention Relating to the Status of Refugees 1951

2. The 1967 Optional Protocol Relating to the Status of Refugees

3. The O.A.U Convention Governing the Specific Aspects of Refugee Problems in Africa 1969

4. The African [Banjul] Charter on Human and People’s Rights

5. American Convention on Human Rights Article 22

6. International Covenant On Civil and Political Rights

7. International Covenant On Economic, Social and Cultural rights

8. The Universal Declaration of Human Rights

9. The African Charter of Human and People’s Rights

10. The United Nations Charter