Kenya’s Security Act: Refugees

Image | Wambui Mwangi

According to the United Nations Convention and Protocol Relating to the Status of Refugees, a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

The African Union Convention Governing the Specific Aspects of Refugee Problems in Africa borrows from and expands the UN definition.

1. For the purposes of this Convention, the term “refugee” shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

2. The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

Background

Kenya is signatory to the UN and AU conventions on the refugee. In 2006, the Kenyan legislature passed the Refugees Act, 2006. The Act uses the AU definition of “refugee.” Article 16 of the Refugees Act, 2006, states,

(1) Subject to this Act, every recognized refugee and every member of his family in Kenya –

(a) shall be entitled to the rights and be subject to the obligations contained in the international conventions to which Kenya is party;

(b) shall be subject to all laws in force in Kenya.

Kenya’s disappeared Report of the Truth, Justice and Reconciliation Commission identifies refugees as vulnerable populations, subject to extortion and violence by state agents.

Key Changes

Clauses 45-48 of the Security Act amend the Refugees Act. They are fairly straightforward, so I’ll simply put them here.

Amendment of section 11 of No. 13 of 2006.

45. Section 11 of the Refugees Act is amended in subsection (1) by deleting the words ?or in any case within thirty days after his entry. [the original section permits a refugee who has entered Kenya up to 30 days to report to an appropriate official—the 30 day window is now reduced to “immediately”]

Amendment of section 12 of No.13 of 2006.

46. Section 12 of the Refugees Act is a amended by inserting the following new subsection immediately after subsection (2)—

(3) Every person who has applied for recognition of his status as a refugee and every member of his family shall remain in the designated refugee camp until the processing of their status is concluded.

 Amendment of section 14 of No.13 of 2006.

47. Section 14 of the Refugees Act is amended by inserting the following new paragraph immediately after paragraph (b) —

(c) not leave the designated refugee camp without the permission of the Refugee Camp Officer.

 Insertion of new section 16D in No. 13 of 2006.

48. The Refugees Act is amended by inserting the following new section immediately.

Permitted number of refugees and asylum seekers in Kenya.

16A. (1) The number of refugees and asylum seekers permitted to stay in Kenya shall not exceed one hundred and fifty thousand persons.

(2) The National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya.

(3) Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding six months only.

(4) The National Assembly may review the period of variation for a further six months.

Discussion

Multiple articles in the UN Convention specify that refugees should be accorded fair treatment:

Article 4 advocates for freedom to practice religion

Article 12 recognizes intimate rights: it recognizes marriage status

Article 14 recognizes artistic rights and industrial property rights

Article 15 recognizes the right to association

Article 16 bestows free access to the courts of law

Article 17.1 advocates for the right to engage in wage-earning employment

Article 21 advocates for fair treatment in housing

Article 26 advocates for freedom of movement

According to the UN Convention, the most important aspect governing refugee status is the principle of non-refoulement:

The principle of non- refoulement is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.

Article 34 of the UN Convention reads:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

According to UNHCR, Kenya will be host to over 600,000 refugees from Ethiopia, Somalia, South Sudan, and “various” other countries in January 2015.

Summary

The amendments in the Security Act increase refugee vulnerability. They ignore international legal measures designed to help refugees have livable existences. They are anti-refugee and anti-human rights.