Why Kenya has no option, but to close Dadaab

NAIROBI: The Garissa University College attack, which led to the untimely death of 146 students and teachers, represents the most reprehensible terror attack against the country since the 1998 US Embassy bombing in Nairobi.

In its wake, the Kenyan government has come up with a raft of interventions including expediting police recruitment to enhance security presence in all parts of the country, pursuing parliamentary approval for further deployment of Kenya Defence Forces in vulnerable spots and ordering the freezing of bank accounts of various institutions allegedly involved in financing terror.

The State's proposition that Daadab Refugee Camp be closed or relocated within three months on the grounds that the refugee camp had become a haven for recruitment and a site for facilitating terror attacks has attracted as much support as censure. Opponents of the government's decision to repatriate over half a million Somali refugees back to their country of origin base their disagreement largely on the provisions of the UN Refugee Convention of 1951 which by dint of article 2(5) of our Constitution and the Refugee Act, 2006 is part of Kenyan law.

It is averred by this school of thought that under no circumstances should a party to the UN Refugee Convention "expel or return ("refouler") a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

While the principle of non-refoulement set out in article 31 of the UN Convention is sacrosanct in international refugee law, it is arguable whether this law is controlling of state conduct at all times especially in times when the host country itself is faced with daunting security threats. Indeed, the Refugee Convention itself envisioned two exceptions to the non-refoulement rule.

First, the Convention contemplated that refugees sentenced to imprisonment for serious crimes would be excluded from the protection of the Convention permitting the host state to refoule such a person to their country of origin.

The second exception to the non-refoulement rule permits a state party to the convention which has reasonable grounds to regard a refugee as a danger to the security of the country to exempt such refugee from the protection of the Convention. This exception gives a state a wide margin of appreciation in determining circumstances that give rise to threats to state security.

State practice on the national security constraint to non-refoulement is evident in at least three cases. The Unites States of America completely shut down its refugee resettlement programme for months after the September 11,2001 bombing of the Twin Towers notwithstanding the United States being a party to the 1951 Refugee Convention.

European Union at the same period also elaborated a Common Position on the Application of Specific Measures to Combat Terrorism which evinced the intention of nullifying the non-derogability of article 3 of the European Convention on Human Rights including with respect to refugee rights.

Not to be left behind, the UN Security Council adopted Resolution 1373 which called upon States to ensure, inter alia, that refugee status is not abused by the perpetrators, organisers or facilitators of terrorist acts, and that claims of political motivation were not recognised as grounds for refusing requests for the extradition of alleged terrorists. In the same vein, Courts in these jurisdictions have actively sought to preserve executive discretion in determining the limits of the right to non-refoulment in circumstances that imperil national security.

For instance, the Canadian Supreme Court in Suresh vs Canada struck a balance between the rights of a refugee against deportation on the one hand and the security of Canada on the other by determining the need for courts to apply "a broad and flexible approach to national security and...a deferential standard of judicial review" with respect to national security considerations.

Quite apart from placing reliance on the exceptions to the non-refoulement rule in article 33(2) of the 1951 UN Convention, the Kenyan government's policy decision could be borne out by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969).

Enacted by the continental body to incorporate the particularities of the refugee problematique in Africa, the OAU Convention is explicit that the Convention shall cease to apply to any refugee if such refugee continues "to refuse to avail himself of the protection of the country of his nationality" even when "the circumstances in connection with which he was recognised as a refugee have ceased to exist" (article 4(e)).

Three decades after its establishment, Daadab is now host to some 10,000 third-generation refugees born in Dadaab to refugee parents who were also born there. Given the stabilisation of Somalia and the ongoing reconstruction of the state, it is no longer a given to merely claim Somalia's insecurity as a basis for hundreds of thousands of people to decline repatriation in their country of origin.

Mr Sing'oei is Legal Advisor, Office of the Deputy President