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Kenya: Proposal to Forcibly Repatriate Somali Refugees

(Apr. 16, 2015) Following the April 2, 2015, deadly attacks at Kenya’s Garissa University carried out by members of the Somalia-based terrorist organization known as Al-Shabaab, which resulted in the killing of 147 students, Kenya announced that it wants the Dadaab refugee complex closed immediately and its residents, who are all Somalis, moved to Somalia. On April 11, 2015, Kenya’s Deputy President William Ruto declared that the United Nations High Commissioner for Refugees (UNHCR) must close the Dadaab refugee complex within three months or “we shall relocate them ourselves.” (Mark Hanrahan, Kenya Tells UN to Close Dadaab Refugee Camp After Garissa University Attack, INTERNATIONAL BUSINESS TIMES (Apr. 12, 2015).)

In response to this announcement, UNHCR released a statement expressing its concern that “abruptly closing the Dadaab camps and forcing refugees back to Somalia would have extreme humanitarian and practical consequences, and would be a breach of Kenya’s international obligations.” (Press Briefing Summary, UNHCR, UNHCR Statement on the Future of Kenya’s Dadaab Refugee Camps (Apr. 14, 2015).)

Background

There are currently about 463,000 Somali refugees in Kenya. (2015 UNHCR Country Operations Profile – Kenya, UNHCR (last visited Apr. 14, 2015).)

The Dadaab complex, which was established in 1991, consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios. (Dadaab Refugee Camps, Kenya: Kenya Support to the Spontaneous Voluntary Return of Somali Refugees from Kenya (Jan. 27, 2015), UNHCR, at 1.) Hosted by Garissa County, Dadaab is located 59 miles from Garissa town, the county’s capital. (Dadaab Refugee Camps in Kenya: 16-31 March 2015, UNHCR (Apr. 3, 2015).) While Dadaab currently has 351,446 residents, at its peak in 2011 it hosted 486,913 refugees and asylum seekers. (Id.; UNHCR & IOM [INTERNATIONAL ORGANIZATION FOR MIGRANTS], JOINT RETURN INTENTION SURVEY REPORT 2014 13 (updated Feb. 25, 2015).) All of the refugees and asylum seekers in Dadaab are Somali citizens. (Kenya: Dadaab, UNHCR (last updated Feb. 28, 2015).)

According to Human Rights Watch, despite the Kenyan government’s insistence that Somali refugees in Kenya are responsible for the threats to the country’s security, no evidence has been established linking Somali refugees to the recent string of terrorist attacks in Kenya. (Gerry Simpson, Dispatches: After Garissa Carnage, Kenya’s Backlash Begins, HUMAN RIGHTS WATCH (Apr. 13, 2015).)

The Refugees Act

Refugee issues in Kenya are governed by the 2006 Refugees Act, which incorporates international instruments that the country has signed. (UNHCR & IOM, supra at 21.) The Act prohibits refoulement of refugees and asylum seekers, stating:

No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or [be] subjected [to] any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where –

(a) the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or

(b) the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country. (Refugee Act No. 13 of 2006, § 18, Cap. 173 (Dec. 30, 2006), Kenya Law website.)

Tripartite Agreement and Voluntary Repatriation

UNHCR, in collaboration with the governments of Kenya and Somalia, is in the midst of implementing a pilot voluntary return program; in 2013, Kenya signed an agreement with the government of Somalia and UNHCR on voluntary repatriation of Somali refugees in Kenya. (Tripartite Agreement Between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees in Kenya, 2013 (Nov. 10, 2013), REFWORLD.) This agreement provides that the return of refugees to Somalia “shall take place in conformity with international law pertaining to voluntary repatriation.” (Id. § 10.)

However, according to a 2014 survey, only 2.6 % (9,627 persons/2,228 households) of the refugees in the Dadaab complex expressed interest in returning to Somalia in the near term, i.e., within two years. (UNHCR & IOM, supra at 9.) In December 2014, UNHCR launched a pilot repatriation program to three locations in Somalia: Luuq, Baidoa, and Kismayo. (UNHCR Statement on the Future of Kenya’s Dadaab Refugee Camps, supra.) UNHCR chose these locations in large part for their relative safety and had planned to repatriate about 10,000 refugees as part of the pilot program. (Mark Yarnell & Alice Thomas, Between a Rock and a Hard Place: Somali Refugees in Kenya, REFUGEES INTERNATIONAL (Sept. 9, 2014), at 6.) Thus far, UNHCR has repatriated 442 households (2,048 individuals), with the largest group going to Kismayo. (Dadaab Refugee Camps in Kenya: 16-31 March 2015, supra.)

Previous Attempt at Forced Repatriation

In December 2014, Kenya enacted a law aimed at forcing out of Kenya tens of thousands of Somali refugees and asylum seekers. It sought to accomplish this by amending the Refugees Act and putting a ceiling on the number of refugees that may be present in the country at a time. The law stated that “… [t]he number of refugees and asylum seekers permitted to stay in Kenya shall not exceed [150,000] persons.” (The Security Laws (Amendment) Act, 2014, § 48 (Dec. 19, 2014), The Presidency website.) Although this law did not expressly target Somali refugees, given that the 463,000 Somali refugees in Kenya account for some 71% of the total number of refugees in the country, the application of this law would have greatly impacted their status. (2015 UNHCR Country Operations Profile – Kenya, supra.)

However, in response to multiple legal challenges to the constitutionality of the law, on February 23, 2015, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found the provision unconstitutional. (Coalition for Reform and Democracy (CORD) & Others v. Republic of Kenya & Others (Feb. 23, 2015), ¶ 427, REFWORLD.) The Court noted that placing a cap on the number of refugees and asylum seekers that may be present in Kenya would invariably result in the expulsion of hundreds of thousands of refugees. (Id.) The Court held that this would “violate the principle of non refoulement, which is a part of the law of Kenya and is underpinned by the Constitution.” (Id.)