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Who is fooling who? Threat of Dadaab refugees repatriation back to Somalia is in violation of Kenya’s supreme law

COMMENTARY
By Lawrence W. Mwagwabi | May 22nd 2016

As a consequence of 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, the Government of Kenya announced that it wants the Dadaab refugee complex closed immediately and its residents, who are all Somalis, moved to Somalia. Indeed, 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.” The repatriation exercise will only affect refugees residing at Dadaab camps and not the 190,000 refugees at Kakuma camp.

This week, the Cabinet Secretary in charge of Internal Security, Joseph Nkaisserry indicated that the decision to close the camp was arrived at in November 2013, when Kenya, Somalia and UNHCR signed tripartite Agreement setting grounds for repatriation of Somali refugees. He noted that there has been very slow progress on the implementation of the agreement and decried lack of commitment by the international community to the repatriation bid.

The government has argued that that the camps have become hosting grounds for Al-Shabaab as well as centres of smuggling and contraband trade besides being enablers of illicit weapons proliferation.

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.” Other agencies that have also expressed concern include Amnesty International which called threats for imminent closure of refugee camps reckless, while the United Nations termed it unfortunate. The Kenya National Commission on Human Rights and Doctors without Borders (MSF) said the move would be a violation of international law.

It is worth noting that Kenya is a signatory to both the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Article 32 of the Convention is informative on ‘expulsion’ of refugees. It states that Contracting States shall not expel a refugee lawfully in their territories save on grounds of national security or public order. It further states that the expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. In addition, Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

 Article 33 which essentially focuses on prohibition of expulsion or return (“refoulement”). It states that no Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever 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. It further states that the benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

 In addition, Kenya is obligated under Article 2(5) which states that, “the general rules of international law shall form part of the law of Kenya”. Article 2 (6), states that “any treaty or convention ratified by Kenya shall form part of the law of “. These two articles are very important given the public pronounce of intention to forcibly repatriate refugees because it is a violation of the Convention/Protocol on the Status of Refugees and the Constitution of Kenya. Further, the Convention is indeed part of Kenya’s laws.

In addition, Refugee issues in Kenya are governed by the 2006 Refugees Act, which incorporates international instruments that the country has signed. 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.

 The Dadaab camp (Established in 1991) in northern Kenya is home to some 335,000 Somali refugees, making it the second largest city of Somalis after Mogadishu. It has increasingly become a place that a growing number of Kenyans want to get rid of, blaming Somali refugees for harbouring Somali al Shabaab extremist militants who have carried out a series of terrorist attacks on Kenyan soil. When Al Shabaab attacked Westgate shopping mall in Nairobi last year, killing 67 people, a senior Kenyan MP urged the government to close Dadaab, which costs the international community between $100 million and $200 million a year to run, calling it a “nursery for terrorists”. (See article by Alex Whiting entitled, “Dadaab refugee camp: A hotbed of extremism?” in Thompson Reuters Foundation http://www.trust.org/item/20140513162358-94p8r/).

 Avery Burns notes that Al-Shabaab has been infiltrating the Somali population in Kenya to recruit more fighters and gain additional support. Burns further contends that Kenya is retaliating by infiltrating the Somali community itself to recruit refugees to return to Somalia to fight alongside the opponents of Al-Shabaab, the Transitional Federal Government (TFG). According to Burns, these refugees are vulnerable and disaffected and therefore susceptible to both alleged recruitment processes. The alleged use of refugees by Kenya to counter the threat of Al-Shabaab may demonstrate a new perception of outside threats and suggests that Kenya is now willing to sacrifice ideals of humanitarianism to secure its border with Somalia. The border remains officially closed but thousands of refugees fleeing the violence in Somalia continue to pour into Kenya. These refugees are desperate for security, but Kenya is quite aware that where refugees manage to cross the border, Al-Shabaab fighters may follow. Read Avery Burns, “Feeling the Pinch: Kenya, Al-Shabaab and East Africa’s Refugee Crisis”, in Refuge, Volume 27 Number 1 (2010), pp. 5 – 15.  It is against this backdrop that government officials have made public pronouncements that have generated public debate on this issue.

In conclusion, it is clear that despite the public debate on this matter, what is fundamental is the need to respect the Constitution of Kenya which obligates the government to protect the rights of the refugees through the ratification on the Convention on the Status of Refugees (1951) and the Refugee Act (2006). Indeed, this Convention provides mechanisms to deal with suspected individuals who threaten the security of the country without necessarily subjecting refugees to repatriation and attendant threats.

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