The political discourse after April 2, 2015 (when terrorists stormed Garissa University College and killed 148 people and injured over 70 others) has been likened to the narrative in the US after 9/11 terrorist’s attack and is set to fundamentally change rights and freedoms of refugees in Kenya. The Deputy President (DP) of Kenya, His Excellency William Ruto announced an executive order indicating that Dadaab camp be closed within three months, citing that terrorists are harbored and trained there.
As was expected, human rights institutions and activists have condemned this order by the DP asserting that it violates human rights of refugees and grossly undermines Kenya’s international obligations. Others have lauded the order to close the said camp, insisting that Kenya has a primary obligation to protect its citizens. Does this pronouncement by the DP infringe on the rights and freedoms of the refugees? Does this pronouncement by the DP violate Kenya’s obligation under international law? Before we look into this, let us briefly outline Kenya’s obligation under International Refugee law.
Kenya’s obligation under International Refugee law (cf. Articles 33 (1), 33 (2) of 1951 Convention on Refugees).
Kenya signed and ratified the UN’s 1951 Refugee Convention and its 1967 Protocol, effectively making Kenya a State Party to these international human rights instruments. Two Articles are key to the situation Kenya finds herself in:
No contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom will be threatened on account of race, religion, nationality, membership of a particular social group or political opinion (Art.33 (1)).
The benefit of the present provision [33(1)] 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 judgment of a particular serious crime constitutes a danger to the community of that country (Art.33 (2)).
The ratification and subsequent domestication of this convention by Kenya binds the State under international law not to forcefully expel or return refugees in Dadaab or elsewhere as enshrined in Article 33(1) of the Convention to Somalia or any other place where their lives are at a risk. To stress the humanitarian purpose of this Convention, Article 33 was not ‘reserveable’; in other words, any contracting party cannot place a reservation on this substantive Article.
The convention contemplates in Article 33 (2) possible exceptions to the principle of non-refoulement and actually provides for possible case scenarios in which a State Party can forcefully return refugees. In light of this, then, the fundamental question is whether the ‘order to close’ is within the law.
What this means to Kenya
The Government has the crucial duty, under the constitution, to protect the lives and property of the Kenyan people. This duty is irreplaceable and cannot be delegated or subordinated. However, the constitution of Kenya (2010) indicates that the obligation to National Security shall be “pursued in accordance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms” (Art 283(2c)). By Kenya signing and ratifying the Refugee Convention and its Protocol, the substantive provisions, including the non-refoulement principle binds Kenya ipso facto.
Article 33 (2) allows Kenya to actually expel or return a refugee (s) but only when certain fundamental elements are met. These are:
a. Particular serious crime;
- The critical factor here is not so much the nature of the crime but rather the commission of and subsequent conviction for the said crime (s) constitutes the threshold for expulsion. The mere rhetoric that refugees are a danger to national security, as is the case now, is insufficient to appeal to this provision.
b. That he/she be convicted by a final judgment
- The mere suspicion that refugees are a threat to national security does not suffice to call for the closure of camps. This article requires that only a conviction that is a product of due process meet the threshold. This ‘final judgment’ must be understood to mean serious authority constituted under principles of justice, that accord the refugee legal redress.
c. That he/she constitutes a danger to the community of the country of refugee.
- There is a double consideration here: One; that the said refugee constitutes danger and two, this danger is to the country of refugee.
In light of the above, several things can be said. One, Kenya can lawfully appeal to Article 33 (2) to direct the expulsion of refugees in the country. Two, the said crime is committed by either individual refugee or in collaboration of several others. Three, the refugees suspected of such crimes must be convicted for such crimes by a ‘final judgment’. The problem with the statement of the DP is that the executive order did not meet any of the three thresholds contemplated by article 33(2) of the Refugee conviction. He did not demonstrate that in light of ‘intelligence that the government had’, the suspect refugees were convicted of terrorist activities by a final judgment. Terrorist activities are executed by persons who are actually terrorists according to the principle, agere sequitur esse (action flows from being). Only due process establishes this, not mere suspicion and consequent public announcement and or pronouncements.
In conclusion, the directive to close refugee camp in Dadaab constitutes an en masse condemnation of refugees in Dadaab camp, contrary to the principles of natural justice and to the provisions of International Refugee Law to which Kenya is a state party to. While national security is a fundamental responsibility and raison d’tre (reason for being) for the government, it cannot appeal to this to flout and disregard her legal obligations. The call to close Dadaab therefore constitutes disregard to law in the absence of convictions for such alleged crimes.
By Marcus Antonie Ageng’a , Electoral Processes Program