Kituo cha Sheria Expresses Disapproval of the Government’s Decision to Close down refugee camps and the Department of Refugee Affairs.
Following the communication by the Ministry of Interior and Coordination of National Government on May, 6th 2016, to close down the Dadaab and Kakuma refugee camps and the Department of Refugee Affairs and to repatriate refugees back to their country, Kituo cha Sheria considers this decision as both misguided and poorly timed. The decision appears emotive, ultra vires and without justification in light of the ongoing refugee crisis involving persons of concern in the East and Horn of Africa.
Taking into account Kenya’s national and international (legal and Constitutional) obligations, Kituo cha Sheria finds it intolerable and lacking in compassion that the Government can decide to expose these people of concern and their families to misery and as a result leave them without protection in clear breach of; the Refugee Act 2006, the Constitution of Kenya, the Universal Declaration of Human Rights (1948), the 1951 Geneva Convention, the 1967 Protocol and the 1969 OAU Convention Governing the specific aspects of refugee problems in Africa etc.
For close to 25 years, Kenya has been hosting refugees of different nationalities from across the African region and is home to one of the biggest refugee camps in the world and currently hosts close to 600,000 persons of concern both in the camps and urban areas. Thus, sudden closure on Friday, May, 6, 2016, by the government, citing economic, security and environmental concerns, contravenes even the most recent 2013 tripartite agreement between the Government of Kenya, the federal republic of Somalia and the United Nations High Commissioner for Refugees governing the voluntary repatriation of Somali refugees as well as the Convention and International treaties that Kenya is party to.
Surprisingly, it is a closure that comes at the height of ongoing efforts to voluntarily repatriate Somali refugees to areas identified as safe for return including Mogadishu, Kisimayo, Baidoa, Loop, Jowhar, Afgoye, Balaad, Beledhawa. In fact, the Agreement is under implementation since December, 2014, where a total of 15,000 refugees have been repatriated back to Somalia.
The question is, what informs the government’s decision to renege on the terms of the agreement, considering that it committed to preserve and protect the asylum space and respect the principle of ‘voluntary return’ and knowing very well that Somalia is not conducive for mass return of refugees.
In summary, we would say, the government has a case to answer to the people of Kenya and the International community as it appears to be in breach of the law and to violate the law, the Constitution and International laws.
Section 6 of the Refugee Act, 2006 establishes the Department of Refugee Affairs (DRA). Logically speaking then, can the Department be disbanded by a mere circular, memo and/or letter from a Permanent Secretary. Does disbanding the department therefore repeal the Act willy-nilly!
The principle of non-refoulement requires that no refugee should be returned to any country where they are likely to face persecution or torture. Therefore, does the government’s closure mean that we are retracting from S. 18 of the Refugee Act, the Kenya Constitution, Geneva Convention, the Protocol, the Universal Declaration of Human Rights, the OAU Convention, the 2013 Tripartite agreement etc. Does this mean that Kenya no longer cares about the law?
Kituo cha Sheria fully recognizes and respects the government’s duty of ensuring national security, rule of law and order on the one hand; but on the other hand recognizes the balance that ought to be struck in all circumstances where the fundamental rights of individuals are likely to be infringed when actions are taken. It is for this reason that Kituo cha Sheria now pleads with the Government of Kenya to carefully rethink its decision; on compassionate grounds by accepting the reality that asylum seekers, refugees, returnees, stateless persons, and IDPs are all persons of concern and that their rights and security should be respected, preserved and protected in all aspects.
Executive Director-Kituo Cha Sheria