The lives of intersex, trans gender and gender non-conforming refugees residing in the country has been one that has been characterized by many life-threatening challenges. Whether in the camps or in the urban areas, these persons live in constant fear and distress.
The 2006 Refugee Act read together with its regulations requires refugees and asylum seekers to reside at the refugee camps where they are accommodated and provided with livelihood support by the UNHCR and other non-governmental organizations. This policy has been mainly promoted by the ideology that the presence of refugees and asylum seekers in the country has resulted into an increase in the terrorist attacks in the country and thus they are considered a threat to national security. The government therefore thought it wise to restrict such persons to camps in a bid to strengthen national security.
This policy has resulted to the camps, namely Daadab and Kakuma, being overly populated with them holding 64% of the 490,000 refugees and asylum seekers residing in Kenya based on a research study conducted in 2016. This population exceeds the minimum number that the camps were meant to hold. Consequently, the camps are overly populated therefore exerting a strain on the already limited resources available. Education, medical and food resources are limited and there is a high reliance on donor funding which is also not always enough.
For Intersex, Trans gender and Gender Non-Conforming refugees and asylum seekers at the camps, life there is not always conducive. They constantly face security threats and violence attacks from other refugees and the neighbouring communities. A 2021 report by the Organization for Refugee, Asylum & Migration (ORAM) found that 100% of transgender persons at Kakuma have experienced physical assault. To help solve this, the UNHCR resorts to moving victims of such violence to protection zones in the camp. Such zones are no better as they are made up of a small field filled with plastic tents with no basic facilities like kitchens. Moreover, ITGNC refugees and asylum seekers are harassed and condemned by the other vulnerable refugees held at such zones. The violence cycle is therefore an unending one resulting to psychological, emotional and physical torment. This coupled up with ineffective protection measures leads to most ITGNC refugees applying for exemption and where it fails, they often flee without permission.
Section 35A of the (Reception, Registration and Adjudication) Regulations provides that a refugee or an asylum seeker who wish to reside outside a designated refugee camp shall apply to the Commissioner for Refugee Affairs for an Exemption. In practice, the exemption process is manned by a combined effort of RAS and UNHCR. The person desiring relocation approaches the protection officer at the camp and states their case. If the officer deems the case merited, for relocation, they forward the file to the commissioner to have the change of residence effected on that person’s documents. The refugee or asylum seeker is given an exemption letter valid for 3 months pending the change. An application for exemption is determined on a case-to-case basis and there is no policy that guides this process. Sometimes the officer refers a case to the UNHCR which may recommend an exemption taking into account whether one requires specialized medical care, or access to higher education or they are facing serious protection threats at the camp.
However, it is not always that applications of ITGNC refugees are successful and most times, they may end up frustrated. In many such cases, these persons usually flee from the camps without such exemption to avoid the constant threats to their lives. Moreover, those whose applications are approved are given a temporary pass and have to wait long periods to have the residential areas in their documents changed. In essence, both are forced to navigate urban areas with documentation that place them at the camp which puts them at high risk and experience many challenges.
Without urban documentation, these refugees and asylum seekers struggle with restricted access to services and activities that require official identity documents, like banking services. Lack of documentation also exacerbates refugees’ encounters with police, including harassment and demands for bribes. In some cases, they face documentation-related criminal charges. This makes them restrict their movement and confine themselves to specific places. Undoubtedly, “If you don’t have a document, you don’t have freedom of movement.”
The lack of urban documentation also renders such refugees and asylum seekers ineligible for assistance provided by civil society organizations. Some charitable and humanitarian organisations that work with urban refugees require refugees to hold an alien card or mandate certificate to be eligible for the services or assistance they offer. One NGO that has provided scholarships for refugees to enter tertiary education, for example, has required that applicants have either an alien card or mandate certificate.
Life in the urban areas is therefore not any better from the one at the camps. There is therefore a need to set up measures and come up with regulations to ensure that ITGNC refugees are safe whether in the camps or urban areas and that they have proper documents at all times. Each of us is a book waiting to be written, and that book, if written, results in a person explained. ITGNC refugees and asylum seekers should therefore be treated with dignity and as normal human beings which they are.
JKUAT Legal Clinic