Fahamu Refugee Legal Aid Newsletter

The Fahamu Refugee Legal Aid Newsletter is a monthly publication that focuses on the provision of refugee legal aid. It is aimed primarily to be a resource for legal aid providers in the Global South where law journals and other resources are hard to access. It complements the information portal
The newsletter follows recent developments in the interpretation of refugee law; case law precedents from different constituencies; reports and helpful resources for refugee legal aid providers; and stories of struggle and success in refugee legal aid work.

Refugees in Kenya: A briefing on recent developments and implications for urban refugee policy

The following event briefing is distributed with permission.

On 4 February the Humanitarian Policy Group brought together senior representatives of international organisations, NGOs, and UK government ministries working in relation to Kenya and Somalia. The discussion covered the implications of the 13 December announcement by the Kenyan government that stated it would no longer be registering urban refugees, and any refugees currently living in urban areas should relocate to designated camps. The discussion was held under the Chatham House Rule and participation was by invitation. What follows is a summary of the conversation.

The situation before and after 18 December announcement

The government announcement of 18 December created a dilemma for many organisations. The government directive relating to the announcement has been classified and remains unseen, and information was revealed only through a government press release demanding an end to urban aid and registration and a relocation of all urban refugees. It noted that any Somali refugees living in Nairobi and other urban areas are to relocate to the Dadaab refugee camps, and refugees from other countries are to head to Kakuma.

The announcement came as a shock to refugees and those working with refugees, although the Kenyan government claimed that it was consistent with its policy since the 1990s, and that its 2006 Refugee Act gave the government the right to determine where refugees live. However, the government had previously been very flexible in its opening of urban spaces to refugees and had registered (or allowed UNHCR to register) over 50 thousand refugees in Nairobi. The Kenyan government has issued thousands of movement passes each month for refugees to leave the camps for Nairobi, and although it has always claimed to have an official encampment policy the camps have never been gazetted. The government has a history of vacillating between enforcement and indifference. There has never been any clarity or formality of policy in this area. Indeed, Nairobi had been selected as one of the six UNHCR urban refugee pilot programmes in the world and UNHCR, with the agreement of the Government of Kenya, had opened up increased opportunities for refugees in the city, including projects working with vulnerable groups in the city, and increased access to schools and health services, as well as assistance to open small businesses. The government took over registration for urban refugees, and opened up Department of Refugee Affairs offices in 4 other cities. Kenya had been a safe haven for many Ethiopian, Somali, and Rwandan refugees, and Nairobi had been a place of protection for urban refugees including survivors of sexual and gender based violence. The 18 December government announcement was a step back from all of that.

This is not to say that urban refugee life was without its problems; refugees had often experienced police harassment and extortion, and indeed, were referred to by some police as ‘ATMs.’ Since the 18 December announcement these abuses have been severely exacerbated. There have been accounts of escalating harassment and violence, and of police going house to house to threaten refugees and in some cases, physically and sexually assault them. Fear has spread amongst the refugees, and those who could afford it have departed for Uganda and Mogadishu, and even Tanzania, South Sudan, or South Africa. Those who cannot afford to leave have hidden inside their homes and businesses or in other towns and villages. Though these refugees have avoided going to the camps, their hiding means that their children are not going to school, refugee meetings are limited, and NGO services have been reduced. The new political and security situation has jeopardised refugee access to services and meant that additional registrations are not occurring outside of camps.

Kambioos camp in the Dadaab complex is the designated receptor of the newly displaced urban refugee population. It was only officially opened in January 2013. It has 18,000 refugees living there, many of whom have been there up to 18 months with minimal services because it was not officially open. It has capacity for 120,000 and UNHCR’s intention was that Kambioos should to take the overflow from Dadaab’s other camps which had received a further influx of 150 thousand refugees during the 2011 famine in Somalia. Donor fatigue has meant that after 2011 the Dadaab camps have faced high budgeting shortages. There have always been large numbers of cross border movements between Dadaab and Somalia but there are now increased reports of refugees departing for Somalia due to insecurity, abuse, and inhospitable conditions of Dadaab, as well as harassment by security services in Nairobi. The government hopes that tens of thousands of refugees will make the trek. Due to official camp status from the government it is hoped that Kambioos will soon have food distributions, police, and health posts. However, the government mandated influx from urban areas could divert funds and resources dedicated for refugees who ought to have been moving in from the overcrowded sister camps of Dadaab.

UNHCR has been put in an especially difficult situation with the announcement of 18 December and has not publicly criticised the basic premise of the government’s newly-stated policy out of fear of damaging its working relationship with the government and desire to avoid a worst case scenario military roundup of refugees being trucked to camps. The response from the outset gave the impression that UNHCR decided that Kenya is within its rights to implement the new policy as long as it is conducted in a ‘humane manner’ and that since UNHCR has accepted Kenya’s encampment policy in theory for decades and many similar situations in the region, particularly neighbouring Tanzania, it is now difficult to counter the policy. UNHCR seemed to take the view that its best strategy was to try to push for a humane implementation of the policy and to find as many exemptions to the government policy as possible.

Red line crossed, Kituo Cha Sheria takes action

However, the emergence of a leaked letter dated the 16th January from the Office of the President signalled a red line had been crossed. The letter announced the planned round-up of 18,000 urban refugees beginning 21 January, to be moved first to the municipal stadium and then to the camps before they could eventually be shifted back to their home countries. Local NGO Kituo Cha Sheria brought a court case against the government on the grounds that the new policy is illegal under the 2010 Constitution which guarantees a number of rights such as freedom of movement, dignity, and non discrimination. The government treatment of all refugees as collectively responsible for criminal acts is also a violation of their rights. On 23 January a judge issued an injunction against any forced relocations until 4 February, which has now been extended to the 19 February. However the injunction only signals the case is arguable; it may not be won.

The active civil society, increasing rule of law, and actions of the judiciary may be the saving grace for the refugee population, although advocacy has proved difficult. The 2010 constitution gives the judiciary a larger role to play, and the current actions are encouraging. It would be positive if the judiciary could also push the government into finally keeping opening the new camps it has agreed to whether or not urban refugees move there. Some agencies and NGOs have made efforts towards this, and more need to step up pressure on the government. Regional entities have made no public statements on the policy, although East African governments are reputed to be talking behind the scenes. Those actors who are unable to speak out for political reasons should funnel resources to those who can, to strengthen them for the fight ahead. An example would be the provision of international legal expertise to Kituo Cha Sheria; the knowledge is already there, but the standard of legal support could be raised to help with protection in the future. The Kenyan Ministry of Immigration reputedly intends to make a court application to have the case set aside, and in the rush to submit the application for the initial case, Kituo Cha Sheria omitted an application for urban registration to be reopened. The new police inspector should also be pursued to investigate human rights violations by authorities.

Since the Kituo Cha Sheria’s case and the judge’s actions, news has spread rapidly among refugees who are aware of the case. But the sense of relief that some donor governments and agencies have expressed that the worst has not happened is misplaced, since even without implementation of the directive serious damage has been done, and worries remain that it could yet be implemented. Police violence has decreased again, but not to the levels seen before the beginning of the crisis. A ‘normal’ extortion rate had gone from 500 or 1000 shillings to hundreds of thousands. They have now decreased again, although many simply have no money left to be extorted or have departed in the face of such abuse. Despite the injunction, the 18 December announcement has still caused thousands or tens of thousands of refugees to leave due to fear, and business activity has decreased as refugees have been forced out.

In the midst of all this, UNHCR has been discussing the policy privately with the Kenyan government, although refugees have been very worried by UNHCR’s lack of public defence for their plight. Meanwhile, the government has asserted that it is enacting its policy with the cooperation of UNHCR, and refugees have begun telling NGOs they would prefer to discuss issues with them than UNHCR because they are perceived as being more worthy of trust even if refugees recognise that they do not have the power. When the media reported joint government and UNHCR actions in relation to the new policy, UNHCR chose not to make a public statement to differentiate its position from the government. Since the leaked letter, UNHCR has publicly insisted it would not cooperate with any programmes of forced relocation, although it would help in voluntary movements to camps. However, the question must be asked whether voluntary relocation is really possible given such a situation. UNHCR asserts that a policy of encampment would be a policy of detention, which is not a policy the UNHCR would support. Though the UNHCR will not participate in forced relocation, it may still be required to receive forcibly relocated peoples into camps and assist them.

On 4 February UNHCR also joined the court case as amicus curiae in defence of its mandate to defend refugee rights, which may be the first time it has entered court proceedings as amicus on the continent. The judicial engagement depoliticises the government rhetoric focused on national security, and allows for a principled and pragmatic interaction that is based on the rule of law. However in the meantime NGOs are reducing services and UNHCR is unable to register refugees if the government does not do so, so though the court case offers hope, the problems are still there.

In need of protection

Given the abuse currently experienced by refugees, it is now necessary for UNHCR and its partners to increase resources dedicated to protection programmes so that they are capable of intervening if the situation deteriorates. Refugees currently feel that neither government nor UNHCR issued documents offer them protection; their only protection is money to pay off the police. The dynamics of the situation have also changed since the closure of the border in 2008/2009 and Kenyan military involvement in Somalia. However, it is difficult to take any action that will have immediate satisfactory effect to stop police abuses. Some believe that all that organisations can do is continue to work behind the scenes to improve the situation; it is imperative that diplomatic channels remain open.

Until recently there had been good protection space in Nairobi, but with the December directive this has changed. Actors in Kenya are meeting regularly and exploring legal recourses to protection, as was done with Kituo Cha Sheria’s case. Other actors have found advocacy to be a problem, and have spoken out more about practical than principled implications to the policy. All of the organisations have other programs, and additionally need to ensure the safety of staff, but some must be more critical and speak up for the refugees. Concerning returns, Somalia must be able to assist IDPs before dealing with refugees, but some INGOs and local NGOs don’t want to get in trouble with the Kenyan government, and some are reluctant to criticise the Somali government, especially given its international support, and donors don’t want to upset progress.

Some civil society groups have continued to take action, and the Urban Refugee Protection Network managed to see a positive uptake in its press release from the media. However, the media has generally taken the government’s side concerning the directive and an anti-refugee and anti-Somali position, and even before the crisis there was an acknowledgement in the humanitarian community that acceptance of refugees had fallen short. Public opinion wants the Somalis to leave. The question is now raised whether or not it is too late to make efforts to change this opinion, and if the resources and willpower exist to support NGOs to develop a media strategy.

The question of returns

Some refugees have now become refugees for a second time after previously returning to Somalia, only to have been given reason to flee once again. One man had gone from Mogadishu to Yemen as a refugee, returned to Mogadishu, before heading to Eastleigh in 2012 where he became a waiter and was supporting himself until a run-in with police when he was assaulted and had several teeth smashed out. The government’s 18 December policy announcement scared him enough to decide to take a bus to Dadaab where he was given a plot in the Kambioos settlement. At Kambioos, he has gone from being someone fairly self-reliant to dependent on external assistance. According to all indication, the government hopes to replicate this pattern and sees the journey from Eastleigh to Kambioos as step one on a journey back to Somalia. A programme to return IDPs from Mogadishu to south-central Somalia received an inordinate amount of attention from the Kenyan government, leading to worries they were planning to replicate the programme with refugees.

The Somali government position seems to be that it is ready to welcome back refugees and wants to position itself as a newly functioning state and bring UN agencies fully back to the country. However, the returnees mentioned in newspaper headlines are not the same ones in refugee camps. Development actors and donors are now seeing what they hope may be the start of a new era for Somalia, but for large-scale returns, stabilisation must be extended into other areas of the country where significant insecurity remains.  Somalia wants to welcome people back but it will be a problem if it is not able to offer access to services, which will continue to be a challenge in much of the South for quite a while. Just last week brought another slate of attacks and travel alerts. For refugees in Kenya to become IDPs in Somalia would not help the development of the country, and may indeed diminish some of the progress that donors are so eager to build on. Somalia has already pushed IDPs out of government buildings and is planning to place them into camps; to push others into the same situation would be highly irresponsible. As the UK government continues its support for development and the new government in Somalia, it is important to recognise the problems that continue to persist on the ground. However, it must also be noted that the current emphasis on stabilisation and resilience in Somalia impacts attention toward Dadaab and funding for programmes there.

Moreover, many refugees and IDPs are eager to go back to their places of origin. If the return were to be truly voluntary it is questionable how many would really return, and it is quite different for agencies to be supporting voluntary relocation when the only other option is for the government to begin forced relocation. A fundamental right of refugees is the right not to be forcibly returned (non-refoulement). Forced return is a major breach of international law. A large voluntary return to Somalia will require widespread increases in stability.

The planned second annual conference on Somalia in London on 7 May 2013 offers the Somali government an opportunity to set out its priorities and discuss its current goals. At the time of the round table, the president was currently in the UK to discuss stabilisation, security, and political issues. Out of six priorities listed at the conference in 2012, four were either directly or indirectly related to security. Many immediate goals include the strengthening of the armed forces, coast guard, police, judiciary, and an improvement in budgetary controls. The government is aware that the security situation remains its primary challenge, and that a large influx of returnees would be problematic.

Political implications

There also exists the question of whether the government of Kenya’s position is really related to a security or a political issue, or whether the IDP and refugee issue is a part of a political game before the elections. The process of devolution and proximity of the March elections raises the question of how the Somali issue and votes play into the government’s actions. Kenya is a large stakeholder in the regional defence area and has helped stabilise parts of Somalia, which in turn led to a backlash and attacks in Kenyan territory, which poses problems for the upcoming elections. Efforts to gain the support of the Somali community may also make a difference; refugees in Nairobi represent an economic force and constituency in their own right. Forced return or encouraged migrations to Somalia, Ethiopia, and Uganda would be worrying and elections could further inflame the situation.

The initiative is a 100-day one, which will continue after the elections, it raises the question of what post-election scenarios will arise? Will the government try to take action ahead of the elections or will it drag its feet? By the time the elections have taken place, significant damage will already have been done; immediate protection measures are necessary.

The historical perspective

There is also a historical perspective to take into account when considering the 18 December directive and leaked 16 January letter. This is not the first time the Kenyan government has threatened, nor would it be the first time, to carry out on a threat to dismantle refugee settlements or camps. It did so in Mombassa in the 1990s, claiming the presence of refugees was damaging the tourist industry and that Somalis weren’t paying tax and undercutting local business. The five camps between Mombasa and Kilifi managed by UNHCR at that time were emptied with the organisation’s forced cooperation after being told that if they did not aid in their closing, the military would do it. Between 1995 and 1996, UNHCR helped with the transfer of those refugees to Dadaab and facilitated resettlement in the USA and Canada to others. At this time large numbers of refugees also resettled in Nairobi, and others were repatriated to negotiated areas. Some who were resettled in Dadaab re-departed immediately and went straight to Eastleigh. The experience should offer a warning to those actors now who believe or hope that the Kenyan government is not capable of carrying out the actions threatened in the directive and leaked letter.

Donors, UNHCR and NGOs must develop coordinated contingency plans and determine possible responses to a forced encampment and repatriation policy. Such action may also prove disastrous for the region, and destabilise countries that are currently doing relatively well. Uganda, Tanzania, Sudan, and South Sudan must all prepare for a worst-case scenario as “security” is used and abused to justify things that are unjustifiable. It is important to take note that anything negotiated now may have negative impacts for years, and unlike in the 1990s, there is no current appetite for resettlement programs for Somalis.

The discussion closed with the reminder that there is no way to restrict free movement or the right to livelihoods in a humane way. All actors and stakeholders need to find a way to stand up for international principles as what happens in Kenya could be replicated in other countries tomorrow.

  1. frlan posted this
blog comments powered by Disqus