Changing the face of refugee protection? The Kenyan High Court affirms the right to dignity and freedom of movement of refugees
Published: 5 Aug 2013
By: Deirdre Clancy
Kenya’s High Court has just delivered a ground breaking judgement on the rights of refugees with implications for hundreds of thousands in Kenya. Affirming the right to freedom of movement and the prima facie right of refugees to live in urban areas, the Court put the right to dignity for refugees back at the heart of refugee protection. For an international refugee protection regime under threat, this inspiring judgement is also a timely reminder of what the priorities should be—and a call to arms for refugee advocates to think differently about what matters.
The case was led by Kituo Cha Sheria—an organisation dedicated to ensuring access to justice for marginalised communities—against the Government of Kenya. It pitted an executive branch of government intent on removing refugees from the city and ultimately to their home countries, against seven individual refugees who had the courage to put their lives and experiences in the public eye for the benefit of Kenya’s urban refugee community and the rule of law more generally.
Coming in the wake of a sustained 10 week violent security crackdown, which saw over 1000 of Kenya’s urban refugees brutally attacked, the petition itself was an act of courage amply rewarded by a judgement which is short on legal pyrotechnics but rich in principle and eloquent humanity.
Although I look forward to analysis by experts of the implications the judgement in terms of Kenyan administrative and (new) constitutional jurisprudence, my intention here is to offer some brief and immediate reflections from the perspective of an outsider.
The background to the case is stark. Just before last Christmas, Kenya’s Department of Refugee Affairs issued a shocking press release: the Government, it said, had decided to “stop [refugee] reception, registration and close down all registration centres in urban areas with immediate effect. All asylum seekers/refugees will be hosted at the refugee camps”. Subsequent letters described how “round-ups” would be conducted by “security officers” and “holding grounds” set up at a sports stadium. Once transferred to Dadaab and Kakuma camps, the refugees would be sent “ultimately to their home countries”.
Quick mobilisation before the courts resulted in the grant of an injunction and immediate relief to Kenya’s over 55,000 officially registered urban refugees. The matter then came for detailed deliberation before Justice David Majaja. Arguments in court centred on administrative and constitutional law and Kenya’s international obligations, particularly those under the UN Refugee Convention. (Interestingly there was no reference to putative rights, which some of the refugees might have been able to assert as “citizens” of the East African Community.)
In his final judgement quashing the directive, Justice Majaja found that the government’s decision constituted “a threat to the rights of refugees” in five major areas. First, the directives were “unreasonable”; second, they violated the right of freedom of movement; third, they exposed refugees “to a level of vulnerability that is inconsistent with the States duty to take care of persons in vulnerable circumstances”; fourth, they violated the right to dignity; and fifth, they threatened the fundamental principle of non-refoulement.
In addressing both the multiple realities of urban refugee lives and the very real concerns of government, Justice Majaja made a number of vital determinations which deserve reflection by all involved in the “management” of refugees everywhere.
First, he recognised that refugees cannot be treated en masse: “a blanket government directive which has no regard for individual circumstances of the urban refugee is arbitrary and discriminative”. He was adamant that the particular circumstances of each individual petitioner—whose experiences ranged from having all their children born in Kenya, to suffering serious medical conditions, to work as caretakers, law lecturers, business people and leadership in religious communities—“were essential for understanding the conditions of refugees in Kenya”.
The judge reflected on the elements of urban refugee life which would be exacerbated or diminished by the implementation of the challenged directive. He acknowledged the enhanced access to the right to work and medical care and the fear of harassment by security services and police. He spoke of the very real threat of persecution in official camps, where past experience had been one of violence. Examining the broader atmosphere he found also that the directive could indirectly cause serious violations of the prohibition on refoulement: “aggressive pursuit of such a policy may have the effect of constructively repatriating urban refugees back to the countries from which they had fled”.
Most critically, Judge Majaja acknowledged—and put at the heart of his judgement—the complex vulnerabilities and meaning of the right to dignity in situations of exile. Refugees, he said, are “a special category of persons who are, by virtue of their situation, considered vulnerable”. Protection of their human dignity must therefore be understood against the background of the suffering endured by refugees, “the trauma and insecurity associated with persecution and flight, the need and struggle to be independent […] to provide for themselves and their families, and the struggle to establish normalcy in a foreign country”.
Finally, the Judge turned to address the explicit and implicit motivations for, and objectives of, the directive. Government had argued in court that allowing refugees to remain in urban areas “pose administrative challenges to the Department of Refugee affairs thereby impacting on the well-being of the country as a whole”. But in one of it communications, a very different underlying impetus had been indicated: national security.
Judge Majaja made short shrift of the first contention. The State, he said, had “not provided any evidence to show that the overall welfare of refugees will promoted by implementation of the impugned directive.” With respect to national security the judge found that “tarring a group of person known as refugees with a broad brush of criminality as a basis of a policy is inconsistent with the values that underlie an open and democratic society based on human dignity, equality and freedom.” A “real connection” must be established between the affected persons and the danger to national security which is asserted. In this analysis proportionality was essential: “[t]he danger and suffering bound to be suffered by the individuals and the intended results ought to be squared”.
The judge was unapologetic and recognised that the work of real refugee protection was going to be difficult. He acknowledged the “schism” that existed in the Kenyan executive branch around how to respond to the “growing presence of exiled communities in Nairobi”. But, as he put it, “[w]e must guard against popularizing a lame acceptance that things do not work as they ought to, and that one should simply get used to it”. “[T[he cost and burdens association with deepening constitutional values” could not, he said, “lessen the obligations of the State”.
It is clear that enabling refugees to live in dignity and safety, partnering with them in building inclusive communities, is key to creating security for both refugees and hosts. Marginalised, scared and vulnerable populations are easy fodder for exploitation and radicalisation. Those who live in certain upmarket parts of Nairobi know well that it is not struggling refugees in Eastleigh who are enjoying the fruits of trafficking in people and arms, corrupt financial transactions, and the terrorism and piracy industry. Scapegoating refugees in the absence of smarter security strategies will only contribute to greater insecurity. As Judge Majaja so eloquently put it putting in place “responsible, careful and creative measures, born out of a consciousness of the values and requirements of our Constitution” is the only way forward.