Refugees’ Rights Vs. Responsibilities: an Analysis of Kenya’s Refugee Encampment Policy

Abstract

In the past, refugee rights issues have not been given much attention in comparison to other issues of regular citizens. Currently, global refugee trends point towards increasingly vital world refugee situation of which majority are found in Africa. Refugee situation and efforts to manage and resolve those situations are directly linked to refugee rights and responsibilities. Kenya’s refugee policies have had to adjust in order to meet the shifting nature of regional forced migration patterns. Since Kenya attained its independence in 1963 to date, it has been a host to refugees fleeing from its neighbouring countries such as Sudan, Uganda, Somalia, Ethiopia, Zaire, Rwanda, Eritrea and Burundi mostly due to political crises, civil wars and upheavals. The period 1991-1992, as well as 2011-2012, witnessed massive forced migrations of population of which Kenya is the host thus, making it the largest refugee host in East and Central Africa. Kenya was until 2010 governed by the 1962 Constitution which relied heavily on English common law with no specific references to refugees until the Miscellaneous Amendment Act No. 6 of 1972 which consequently, amended the Immigration Act and introduced refugee protection and refugees as a category of permits an alien could obtain. In the absence of specific law dealing with refugees, the immigration laws as contained in the Immigration Act, Chapter 179 of the Laws of Kenya, were applied to refugees even though they were intended to regulate entry into Kenya of persons who voluntarily come from other countries for some specific purpose. The Government of Kenya enacted the Refugee Act in 2006; however, since early 1990s the country has been employing a de facto encampment policy which requires all refugees to reside in camps located in the semi-arid northern part of the country. Dadaab refugee camp located in North Eastern Kenya is one of the largest, oldest and most overcrowded refugee camps in the world. Based on the conceptual framework of the United Nations 1951 Convention Relating to the Status of Refugees (The Refugee Convention), the 1967 Protocol to the Convention, and the Organisation of African Unity Convention Governing the Aspects of Refugee Problems in Africa, Kenya’s encampment policy breaches basic human rights of refugees. The Study established that Kenya’s encampment policy advances refoulement and denies refugees’ freedom of movement, socio-economic rights among other rights, enshrined in the Refugee Convention and under International Law. The Study noted that refugees in Kenya have become consumers and entirely dependent on humanitarian aid. The study also identified possible ways on how to improve the livelihoods of refugees through application of durable viable solutions and proposed that international collective responsibility was vital in refugee protection. In conclusion, a number of recommendations were made to the Government of Kenya, to the refugees and to United Nations High Commissioner for Refugees that sought to promote refugee protection in Kenya. Data for this study was collected by using content analysis, scientific analysis and interview methodologies.