By Nyaga Dominic*
The world refugee problem is conspicuously one of the most complicated issues facing the bigger portion of the international community today. According to studies, more than a half of the world’s refugees reside in urban areas. It is due to the incapability of living in the formal settlement areas that many refugees end up inhabiting the peripherals of the urban areas.
The necessity of accommodating refugees is as old as humanity itself, with its roots being found in the medieval times. Principles in favor of receipt and protection of refugees fleeing their own lands for safety to other countries can be found in both Islam and Judaism. Since the idea of nationalism was not so much developed then, no persons would be returned back to their countries, with the rebels as the only exception. With regard to this, governments entered into formal agreements for the exchange of dissidents.
Owing to the political turmoil in Europe during the mid-19th century, a practice for the protection of political offenders was developed. This practice progressively led to the strengthening of nationalism, which resulted in restricting refugees from coming into one’s borders.
In Britain for instance, there was a need to regulate immigration. This was propelled by the increasing number of immigrants who were seeking asylum in the country. This trend was seen as a serious political issue and came to be referred to as an ‘alien invasion’ by some campaigners. Consequently, the Royal Commission on Alien Immigration was set up to investigate this issue. Its report led to the enactment of the Aliens Act of 1905. This Act prohibited the entry into Britain of persons who had committed crimes in their countries of origin. However, persons who had fear of persecution on political or religious grounds were exempted and would not be returned at all.
In 1939 a MV St. Louis ship carrying nine hundred and seven Jewish passengers seeking asylum from Nazi persecution was denied entry into Latin American countries and the United States of America (USA). They were forced to go back to Europe where nearly half of them eventually perished in Nazi gas chambers during the World War II.
As over time, human rights issues continued to gain strength in international discussions. It is in this vein that the principle of non refoulement was birthed in 1951, guaranteeing that individuals have the right not to be forcibly returned to countries where they face persecution. To date, the 1951 convention relating to the status of refugees remains the preeminent instrument of citation with regard to international refugee protection. It provides 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.’
Subsequently, numerous legal instruments such as International Covenant on Civil and Political Rights (ICCPR)13 and the 1967 Protocol14 continued to campaign against the refoulement of refugees. Regional instruments such as European Convention on Human Rights (ECHR) and the 1969 American Convention on Human Rights16 have also incorporated the principle of non refoulement in their structures. As human rights issues continued to gain strength with time in international discussions, these instruments became increasingly important. It is of relevance to note that the principle of non refoulement was extended to the laws of war. This is seen in the 1949 Fourth Geneva Convention which is to the effect that protected persons cannot in any circumstance be transferred to a territory where they have a reason to fear persecution.
Witnessing the predicament of the refugees, the post-independence Africa embraced this trend. The 1969 Organisation of the African Union (OAU) Convention governs the specific aspects of refugee issues in Africa. Under its Article 2, it requires States to receive and settle refugees who are unable or unwilling to return due to compelling reasons. From the outset, many states ratified treaties which incorporated the non refoulement principle as a matter of international humanitarian law and human rights law. The same was incorporated into domestic legislations. Kenya was not immune to this trend. Section 16 of the Kenya Refugee Act is to the effect that every person recognised as a refugee and every member of his family living in Kenya shall be entitled to the rights and be subject to the obligations contained in the international conventions to which Kenya is party. However, owing to issues such as terrorism attacks that Kenya has suffered of late, the non refoulement principle, which is the guardian of refugee’s rights, has faced a sea of struggles.
Beginning with hurling grenades at social gatherings to attacks in malls and schools, the country has of late been plagued with rampant terror attacks. The Garissa University College attack of 2015 claimed one hundred forty eight lives, a large number being promising Kenyan students. Such an attack had been preceded by the Westgate Mall attack of 2013 in Nairobi where sixty seven people lost their lives. The heinous attacks were greatly linked to the incoming refugees especially the ones from Somalia, being home to the deadly militant group; Al Shabaab.
In response to this, the Kenyan government was heard calling for closure of refugee camps, and expatriation as the attacks intensified each new dawn. This paper would agree with Gerry Simpson, who at the time said that Kenya’s deportation of Somalis to their conflict ridden country without allowing them to seek asylum would be a flagrant breach of its international legal obligations. Scapegoating and abusing refugees in general was not going, in any way, to secure anyone from the attacks.
Owing to these terror attacks, refugees were and are seen as a danger to national security. The government used the attacks to justify the closure of the refugee camps and to revoke their stay in Kenya. The government deems that the best way to reduce this risk is to expatriate refugees back to their respective countries. That, however, would be in contravention of refugee law, which proscribes the refoulement of people to countries undergoing crises.
In light of the above, this paper, with the help of literature review, legal instruments and case law; is an attempt to address the dilemma that Kenya has faced.
The current investigation will be completed in five sections. The current section has served as an introduction. Section II will examine the status and origin of urban refugees in Kenya in a bid to understand the relationship between national security and the principle of non refoulement. It is in this vein that Section III will go ahead to address the need to strike a right balance between the two, in order to finally provide the country with a solution to this dilemma in Section IV. Finally, this discussion ends in part V in an attempt to analyse the effectiveness of striking the right balance between the two.
If in any event the urban refugees are responsible for threatening the Kenyan security, the unappreciative nature would be equated to the sword that has forgotten the smith who forged it. Being geographically located within the vicinity of unstable countries, Kenya receives on record a large number of refugees. The origin of migration of refugees into Kenya can be dated back to the colonial period. As early as 1937, over 6,000 refugees emanating from Ethiopia flocked into the country. In the 1980s, refugee presence in Kenya became quite substantial. The number rose each new dawn following the internal strife in Uganda. By 1988, there were 12,000 Ugandans inhabiting Nairobi area.
These refugees had broad rights including the right to work, move freely and settle in any place within Kenya. On top of that, they had the right to apply for local legal integration. By 1991, the refugee figures skyrocketed from the previous 15,000 to 130,000 followed by rapid increase of 400,000 the following year. The Kenyan government was forced to withdraw the status determination process after it became quite expensive to maintain. This led United Nations High Commissioner for Refugees (UNHCR) to intervene for the purposes of filling the lacuna. UNHCR gave ‘protection letters’ to asylum seekers who were successful. However, the government put this to an end after the then Minister of Home Affairs and National Heritage ordered all the refugees with protection letters to surrender them to the immigration department. This must have resulted from the 1998 United States embassy bombing which had occurred two weeks before this date killing nearly 300 people. The ‘obedient’ refugees who had already surrendered the letters were issued with a notice to be a prohibited immigrant on the basis of the Immigration Act. This order was issued pursuant to the powers conferred upon the Minister.
In 1997, Kenya carried out the ‘operation Alien’, after the Rwandan government demanded Kenya to surrender Rwandans who were allegedly involved in the genocide to the International Criminal Court. As a result, refugees were subjected to arbitrary arrests and detention. Rwandan and Burundi’s Hutus were specifically targeted. This target came to fruition after seven Rwandans were sent to Arusha to face charges before international Criminal Tribunal for Rwanda. Linked to such insecurity cases from their own country, the Kenyan government continues to doubt their credibility and why it should continue to offer asylum.
Chapter 14 of the Kenyan constitution provides for the principles governing national security, and the organs tasked with the duty of ensuring national security. National security protects against internal and external threat to Kenya’s territorial integrity, sovereignty, people’s rights, freedoms, property, peace, stability, prosperity, and other interests. It is the freedom from threats to the core values of a state. As opposed to the Cold War times when national security was looked at within the context of military terms, the nation is secure if it protects the territorial integrity of the state, its sovereignty, its culture, economic prosperity and its population from destruction.
While the right to security is fundamentally available to everyone, there are particular cases where this right is limited. One among the justifications of limiting rights is when the national security is threatened. National security is stipulated under Section 3(9) of Prevention of Terrorism Act as an exception to enjoying freedoms. The Kenyan National Intelligence Act also provides for it. This justifies the seriousness attached to national security. In R v Secretary of State for Affairs, Lord Denning held that in cases where national security is involved, and the state is itself endangered, our freedoms may have to take a second life. In such cases, say emergency, certain rights and freedoms are limited to promote national security.
National security has proven over history to be one of the key ingredients in preservation of life and protection of people’s rights from both internal and external threats. This is clearly evidenced in the social contract theory, where society was in a condition of war of everyone against everyone, because everyone was guided by their own selfish interests. This sad state of affairs necessitated the civil society to enter into an organised and coercive government. Man readily gave up some of his rights to a form of government and in return, the government was expected to safeguard people’s rights such as mutual security. The government was highly tasked with upholding national security. This is the same situation now; the government is obliged to protect its citizens from any insecurity.
In many cases protracted refugee situations lead to security problems in the host countries. These include small arms infiltration, incursion of militias among other security breaches. The country as illustrated in section I has recently been a victim of several bombings believed to have been engineered by the Al Shabab militias in connection with the large number of refugees in the country. This led to much concern by the Kenyan public and the grilling of the Minister of Internal Security in parliament. The refugee regulations require the Commissioner of Refugee to establish screening mechanisms to separate combatants from genuine asylum seekers. Unfortunately as things stand currently, asylum seekers are only assessed when they reach the camps meaning that criminals are not detected before they enter the camps. This can be one of the reasons as to why refugees face allegations as impulse to terrorism in Kenya.
As a result, there has been growing xenophobia towards the refugees for threatening the national security even before the Kenyan invasion into Somalia for terrorists back in 2011. In the year 2009, an official in the Kenyan Ministry of State for Immigration and Registration of Persons stated that the influx of Somali refugees into Kenya is creating major terrorism threat and putting tremendous pressure on social services and amenities. Extremist groups and Islamic radicals may use refugee flow to smuggle weapons and people into Kenya to engage in terrorist attacks. This threat and fear has reached all-time high since Kenyan forces went into Somalia and revenge attacks became rampant. The more the attacks, the higher the fear and insecurity upon the citizens. The government could easily expatriate the refugees out of the country if they are the source of the insecurity. However, this might not transpire with so much ease since the refugees are protected by the principle of non refoulement under international law.
In her poem ‘Home’, Warsan Shire says, ‘no one leaves home unless home is the mouth of a shark. You only run for the border when you see the whole city running as well.’ It has become an accepted part of human rights law that a person may not be sent to another country, whether for purposes of extradition, deportation or for any other reason, if that person faces a real risk of torture, inhuman or degrading treatment or punishment in their own country. Upon arrival, the refugees should have their rights protected by the host countries in respect to the legal instruments and authorities.
The principle of non refoulement is provided for under the Convention against Torture, and other Cruel Inhuman or Degrading Treatment, which stipulates that ‘no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. For torture to have been committed, or tolerated by a state official, there must be an expulsion of a refugee to a place where the threat of torture emanates. In HLR v France, the European Court of Human Rights held that it should be shown that the risk is real and the authorities of the receiving state are not able to prevent the risk by providing the appropriate protection. The risk of torture must go beyond mere suspicion but the test does not have to necessarily be highly probable when establishing matters as to whether refugees are exposed to torture as a result of being repatriated. Evidence of serious human rights violations or any other activity likely to result in a risk of being tortured must be illustrated.
The principle establishes the right to seek and enjoy asylum under international law, acting as the cornerstone in the protection of refugees stay in the visiting countries. Kenya has recognized the 1951 Convention, the protocol of 1967 Protocol, and other important international human rights treaties regarding protection of refugees. However, the country is yet to ratify any one since the promulgation of the 2010 Kenyan Constitution, but general rules of international law form part of the law of Kenya.
All countries that have ratified the principle are committed not to return refugees across the frontiers in their country of origin unless dictated so by certain exceptions. First, when national security or public order is disrupted. Second, the principle does not apply to a person who, having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of that country, and thirdly the benefit of the convention is to be denied to any person suspected of committing a crime against peace, a war crime, or a crime against humanity, a serious non-political crime outside the country of refuge, or acts contrary to the purposes and principles of the United Nations.
The scope of principle of non refoulement remain vague even after application for such a long period of time. In fact in many situations of breach or alleged breach, the bone of contention is whether the person seeking to benefit falls under the purview of principle of non refoulement. This results from lack of common ground on issues such as geographical extent of application, the beneficiaries and mass influx situations. The guarantee under Article 33 of the Refugee Convention is enjoyed only by specific persons. This definition lays much weight on persecution on the basis of race, religion or political affiliation. However there are situations where there is no such persecution but persons simply flee from violence resulting from occupation or public disorder.
The protection granted to refugees also is naturally available to asylum seekers. This results from the logic that every refugee is initially an asylum seeker. The UNCHR states that, ‘to protect refugees, asylum-seekers must be treated on the assumption that they may be refugees until their status has been determined. Otherwise, the principle of non-refoulement would not provide effective protection for refugee.
At times states cannot allow in refugees simply because of their numbers. An instance of such a scenario was unveiled in the 1995 exodus of Rwandan refugees to Tanzania. Tanzania which was by then hosting half a million refugees closed its borders. It is fair to say that, to prevent such situations from transpiring again, burden sharing has to be resorted to. The 1967 United Nations Declaration on Territorial Asylum makes an exception on the obligation of non refoulement on the basis of overriding reasons of national security in situations of mass influx. However even in such circumstances the state concerned is obliged to explore the possibility of granting provisional asylum to such persons in order to avail them an opportunity to seek asylum elsewhere. The status determination has to be done properly in order for the state to be in respect of the principle of non refoulement. With respect to the question of the scope of non refoulement, the parameters of operation shows how limited its application is. The limitation is to the detriment of national security and protection of the refugees.
With the nature of porous and largely wide boarders, the refugees are usually linked with national insecurity upon arrival into the country, due to their high probability of smuggling into the country illegal firearms and weapons. For this reason, refugees are mistaken with the terrorists who threaten national security, thus their right to nonrefoulement face a great challenge. The dilemma of national security and principle of non refoulement signals a need for a balance that will be effective in identifying where the scales between the two tilt.
THE WAY FORWARD: STRIKING THE RIGHT BALANCE BETWEEN NATIONAL SECURITY AND PRINCIPLE OF NON REFOULEMENT
The governments’ concerns related to national insecurity are legitimate as stipulated in the 1951 Refugee Convention as to the states’ right in protection of its citizens. Nevertheless, the fight against terrorism and mass influx of refugees must take place within the framework of international law. This requires states to maintain national security while complying with their international obligations to the protection of refugees. However, as evident as it is in the preceding sections, the principle of non refoulement is caught in between the desires for any state to maintain security of its citizens, and uphold the obligation to ensure that refugee rights are protected.
The principle of non refoulement is provided for under international law and national security under national law so it is not clear as to which to apply since the country is neither a monist for the principle of non refoulement to apply directly in the country, nor dualist for it to apply by ratification. As such the position is that the judge choose which way to go as he deems fit, which is the application of the harmonisation theory. For this reason, the principle of non refoulement is not a guaranteed right in the country but the refugee enjoys it by coincidence when the judge goes by the international law over national law. The judges in Kenya while delivering their judgment can be guided by the most specific law between international and municipal law where there is no inconsistency with the written law.
The court of law has applied national law and international before in deciding cases that are brought before it. In the matter of Kenya Section of the International Commission of Jurists v Attorney General & Another Justice Ombija made an extensive use of the international legal instruments, affirming the decision made earlier by Justice Koome in the Re Matter of Zipporah Wambui Mathara providing for direct application of international law. The Courts of law have ruled many other cases using the national laws.
The case of Kenya National Commission on Human Rights & another v Attorney General & 3 others, illustrated the grounds of refouling refugees, when there is enough and substantial evidence beyond reasonable doubt. In this case, the government officials issued a gazette notice to the effect that refugee camps of Kakuma and Daadab be closed. The respondents argued that justifiable challenges such as insecurity, terrorism and proliferation of arms had emerged making Kenya unable to continue hosting refugees. The Court stated that the universal declaration of human rights provides each human being with the right to asylum and Kenya has international obligations. This fact alone empowers the Court with the duty to enforce the rights of these refugees.
This is also because the principle of non-refoulement is of universal acceptance, and states have an obligation to uphold it. Furthermore, the court relied on one of the two exceptions to this principle. Justice John Mativo ruled in favor of the petitioners as the state failed to bring factual evidence, to show that the petitioners constituted a threat to national security. The respondents failed to provide evidence of a crime committed by the petitioners, hence ruled out as a mere allegation. The court also declared the decision to collectively repatriate refugees back to their countries a complex violation of the principle of non refoulement which effectively put a stop to the government’s plans. From this ruling, it can be concluded that mere allegations against the refugees to threaten national security, will and shall not warrant expatriation of refugees from the country.
Kenya continues to receive a mass influx of refugees from protracted conflict situations hence the unending refugee presence. The filing of law suits signifies a dwindling patience by the Kenyan government, and therefore something should be done if refoulement is to be avoided. From the analysis made in this investigation, the menace can be alleviated if the following steps were taken in an interest to balance principle of non refoulement and national security:
The government of Kenya can and should improve its screening function at the borders to ensure that terrorists do not acquire access to the country as refugees.
The government of Kenya could still explore the possibility of repatriating the refugees on a voluntary basis in a comprehensive plan that will take into account the prevailing circumstances in their home country.
The government needs to create a working relationship with the refugee community so that they can contribute towards the security of the nation through community policing.
This paper has addressed the dilemma of principle of non refoulement and national security in a bid to understand where the scales tilt, and provide steps that can be put into place to solve the predicament.
Kenya has a long history with the refugees who flow into the country in search of asylum. Coming from countries with a lot of insecurity, refugees are alleged to plot and facilitate the terrorist attacks that Kenya has suffered of late. Following this, the governments’ benevolence to offer asylum is dwindling, as the state has a duty to protect the interests of its citizens, besides the obligations to protect refugees. There have been attempts to repatriate the refugees from the camps back to their countries, but the courts of law have intervened providing that mere allegations should not guarantee ‘refoulement’ of refugees. So far the obstacle that the government of Kenya is facing from proceeding with return of refugees to their country, or any other country, is the principle of non-refoulment which is enshrined in international law. It is a norm that has gained customary international law status thereby making it impossible for Kenya to avoid the obligations towards refugees.
National security and protection of refugees are both pertinent areas in the interest of humanity. Kenya could still explore its options to repatriate but within its obligation under international law. This means that refugees can only be returned to their country of origin if the circumstances that contributed to their plight have ceased. With responsibilities of both areas falling on the state, there comes a need to strike a balance between principle of non refoulement and national security.
However contradictory and problematic this area may seem to be, it is the high time the government halts living in denial and face the refugee situation head on. Such a gallant step will allow the government to address national interests as well as the needs of the refugees. Additionally, this will ease the planning and operations of aid organizations as they will know what to expect from the government in any given situation. Moreover, the government of Kenya should stop generalizing all terrorists as refugees, but deal with the terrorists personally.
Yet, the blame cannot be solely laid on the government. The refugee community should take a responsibility to aid the government in curbing the insecurity issue which if overlooked, affects all aspects of safety in humanity interests and actions. With steps such as these, the dilemma of non refoulement and national security will be solved with hope to protect all interests. As to when this action comes into play, only time will tell.
The author is a LL.B student at the Strathmore University Law School in Nairobi, Kenya. In its writing, the author benefited immensely from the advice of many, but especially one Mr. Cecil Yongo, for whom, gratitude cannot be possibly conveyed in words.