The fate of thousands of refugees lies unknown following the government initiative to close down Kakuma and Dadaab refugee camps. A similar directive was issued in 2016 due to the government’s position that the camps were breeding grounds for terrorists. The government blamed the Mpeketoni, Lamu, Westgate, and Garissa University attacks on the camps. A letter addressing the the UNHCR strictly recognises that the directive is anchored on the government’s domestic responsibility to protect Kenyans. Furthermore, there ought to be a balance between Kenya’s international obligations and her domestic duties. The 2021 ultimatum issued by the interior security CS is a follow-up of the 2016 directive.
Some of the effects of the government’s directive are an increase in violence. The day after the announcement, an armed mob allegedly attacked a group of refugees while they were tending to their riverside gardens in Kakuma, resulting in four injuries. Most residents of the camp believe that the attack was incited by the government’s directive to have the camp closed.
While fulfilling its obligation towards its citizens, the government ought to consider the impact of this directive. For instance, its effect on the welfare of the refugees. Most of them have considered the camps as home for many years thus, the government should not act indifferent to this.
Does the situation in their countries allow them to go back? Is it possible for them to start afresh? Life in the camps is definitely not as good, as it is one of difficulty and poverty, as shown by UNHCR reports, but forcefully sending back refugees to a ‘home’ they have never known, is not a solution. The UNHCR handbook states that, as a general rule, positive pull factors should be the overriding elements in the refugee’s decision to return, as opposed to push factors”.
If the government sends them back to their countries forcefully, there would be violations of human rights. This occurred in Bangladesh in July 1997, when Bangladesh authorities entered Nayapara camp and requested that the refugees return to Myanmar. However, no one volunteered and this resulted to violence and altercations between the refugees and the authorities.Some refugees were detained overnight and others forced into boats to Myanmar the following day.
Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly states in that no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The same is echoed in Article 33(1) of The Convention Relating to the Status of Refugees. Kenya, being a party to both conventions is obligated adhere to the provisions.
The Court of Appeal upheld the High Court’s decision in Kituo cha Sheria & 8 others v Attorney General, which emphasized that the principle of non-refoulment of refugees forms a part of customary international law. In this case, the government of Kenya had issued a directive to relocate all refugees in urban areas to the refugee camps. The court declared that this directive was unlawful, as refugees are entitled to their rights as provided for by international law.
In the case of Chahal v United Kingdom, Chahal was an Indian citizen and leader of the Sikh separatist movement who lived in the UK and was alleged to be a threat to national security. Pursuant the risk of ill-treatment in India, the Court found that the UK would breach Article. 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by deporting him to India. Similarly, the court in Soering v United Kingdom, also echoed that the right under Article 3 of the Convention against Torture cannot be limited. It is therefore clear that states are obligated to protect refugees as well as persons seeking asylum in their countries.
Accordingly, any repatriation of refugees should be based on the principle that such people return to their places of origin voluntarily and without undue influence or pressure. The best way forward would therefore be to find a better solution to the security problem without forcefully repatriating the innocent refugees in the camps.
AUTHOR: Shikhule Eddah Ayuma
The United Nations Refugee Agency, “Handbook on Voluntary Repatriation: International Protection” (UNHCR2019) <https://www.unhcr.org/publications/legal/3bfe68d32/handbook-voluntary-repatriation-international-protection.html> accessed May 14, 2021.
United States Bureau of Citizenship and Immigration Services, Burma [Maymar]: Information on the situation of Rohingyas, 28 March 2001, MMR01001.ZCH <https://www.refworld.org/publisher,USCIS,,MMR,3deccd7a4,0.html > accessed May 14,2021
Kituo cha Sheria & 8 others v AG  eKLR
23 ECtHR (1996) 413
161 ECtHR (1989)