The Refugees Bill of 2019 is among the Bills signed by the president earlier this November. This law embodies a difficult but necessary journey in improving the lives of refugees in Kenya. It is the successful attempt at improving the current legal framework following a previous failed attempt in the year 2017. The importance of this bill cannot be gainsaid and comes at a very crucial time. This article looks into the development of refugee law in Kenya and discusses the relevance of the 2019 Bill. As early as 1963 to date, Kenya has been a safe haven for refugees seeking safety away from their hostile home countries. Over the years, Kenya has hosted refugees from Uganda, Congo, Sudan, Ethiopia and Somalia. The number of refugees residing in the country has steadily increased over years and currently, Kenya is home to about half a million refugees. The majority of these refugees have been residing within the Daadab and Kakuma encampments with a minority living in urban areas.
Despite Kenya being a hosting country since its independence, development of refugee protection laws was slow with the first law enacted for Refugees being the Refugee Act of 2006. Granted, before 2006 Kenya had been a signatory to International laws that protected refugees, however these international laws were not domesticated. Thus, the Refugee Act of 2006 was the first of its kind enacted for the protection, recognition and management of refugees. This law was step in the right direction. However, the influx of refugees to the country brought on a contending interest of National Security. Therefore, while on one hand there was the need to protect refugees, on the other hand the government was tasked with ensuring that wars from the neighbouring countries did not spill over to Kenya.
These efforts culminated in the enactment of the Security Laws (amendment) Act of 2014. Section 47 of this act is relevant in our discussion as it altered the Refugees Act to the effect that the movement of refugees was limited to Daadab and Kakuma camps. In order to move out of the camps, one was required to seek permission from a Refugee Camp Officer. While in theory the amendment still allowed movement of refugees though limited, in practice, the process was not as easy and straight forward. Refugees through various stakeholders expressed their dissatisfaction over the bureaucracy that required the refugee to have a refugee certificate that took years to process before applying for a work permit. The frustration borne from the established processes had the effect of limiting the opportunities for refugees to better themselves. The refugees were then stuck in a sort of limbo where they fled their country due to security risks but now are stuck in a foreign country with no means of improving their lives. Owing to this situation and a great deal of advocacy by stakeholders, a discussion on a new Act to replace the out-dated Refugees Act of 2006 was borne. The first attempt of enacting a new Refugee statute failed in 2017 on grounds of lack of public participation. Two years later, fresh attempts were made and the Refugee Bill of 2019 was introduced in Parliament by Honourable Adan Duale.
This Bill proved to be a success and is soon to be enacted as law. The aim of the Refugees Bill of 2019 is to provide for the recognition, protection and management of refugees as well as to give effect to both the United Nations Convention relating to the Status of Refugees of 1951 as well as the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969. Section 3(c) of the Bill an additional definition to the term refugee as a person compelled to leave his country of origin or habitual residence owing to external aggression or foreign domination in any part or whole of his country. The Bill makes modification on the Administrative institutions tasked with handling refugee matters. Under the Bill, there are three administrative bodies established; the Department of Refugee Services, the Refugee Advisory Committee and the Refugee Status Appeals Committee. The Department of Refugee Services is responsible for administrative matters concerning refugees and is headed by a Commissioner. The Commissioner in the new law has added responsibilities primarily concerned with maintenance of designated areas. Amongst a number of functions, the commissioner is tasked with receiving and processing applications for refugee status The Bill also introduces a Refugee Status Eligibility Panel tasked with reviewing the recommendations made on refugee status determination. The Refugees Advisory Committee consists of; the Commissioner, persons representing various ministries of the government, the Attorney General and the Inspector General amongst others. The Committee is tasked with advising the Cabinet Secretary on matters of national policy and matter relating to refugees. The Refugee Status Appeals Board is tasked with hearing and determining appeals against the decision of the Commissioner with regard to rejection of individual application for refugee status and cancellation and termination of refugee status. Part V of the Bill is on the rights and duties of refugees and asylum seekers. Section 28(4) recognizes the refugee’s social economic right and a duty is placed on both the National and County Governments to facilitate access to and issuance of the necessary documentation. When read together with the sections 34 and 35 of the Bill on integration of refugees, it is quite clear that the aim to mesh the lives of the refugees with the hosting communities to ensure comfort and overall improve the lives of the said refugees. Additionally, the availability of designated areas allows the refugees a freedom of movement as they are not contained within refugee camps. Section 29 of the Bill introduces the right to non-refoulement of refugees where a person shall not be refused entry into Kenya or expelled from Kenya if as a result of the refusal or expulsion the person will be compelled to return to a country where he may face persecution.
The Refugees Bill brings with it hope for a better life for refugees in Kenya. It is the early morning light marking a new dawn in the lives of refugees in Kenya.
JKUAT Legal Clinic