Introduction
Development of refugee law in Kenya has been marked more by security concerns than protection considerations. Refugees have been and still are seen as a transient issue as well as a threat to national security. However, there was a period after independence when refugees were welcomed in Kenya with open arms. The development of the law therefore can be traced through three distinct periods: the golden age, the rise of encampment policy, and the balance of protection and national security. Currently the refugee law is seen as more of an instrument of security than protection. The Golden Age: 1963-1991 Kenya has been hosting refugees since the 1960s. At that time, the country hosted refugees from Uganda, Ethiopia, and Somalia, and the total population was no more than 5,000. The government of Kenya was fully in charge of refugee management in the country, and refugees could access work and move freely. This has led some observers to refer to this as the golden age for refugee management. There was no refugee law to speak of until 1967. Although Kenya ratified the United Nations Convention Relating to the Status of Refugees on May 16, 1966, the independence constitution required a domestic law to make it applicable in Kenyan courts. This was done through the inclusion of Class M entry permits under the Immigration Act of 1967. Despite the inclusion of the legal definition of a refugee, there was no information regarding rights. It appeared as though the law was only meant to regulate the entry and settlement of refugees, without providing the terms of their residence. There were also no legal provisions on the principle of non-refoulement, right to work, or freedom of movement. The law did not provide any durable solutions for dealing with refugees. This situation continued until the enactment of the Refugees Act of 2006. Be that as it may, refugees in Kenya at the time had de facto freedom of movement as well as access to work. A good example is that of the Ugandans that fled the autocratic and kleptocratic regime of Idi Amin. They were received well and most of them eventually integrated into Kenyan society.
Most Kenyans that went to school in the 1970s and 80s have memories of Ugandan teachers, further evidence that these refugees were allowed to work in formal sectors. Rise of Encampment Policy: 1991-2007 As civil wars erupted in Ethiopia, Sudan, and Somalia, the number of refugees coming to Kenya increased tenfold, from 20,000 to about 200,000. This massive influx had debilitating consequences that still haunt Kenya’s asylum system. The government of Kenya abandoned direct involvement with refugees and left this role to the UNHCR. It also set up the Dadaab and Kakuma camps, primarily for refugees from Somalia and Uganda, respectively. From the location of these camps–close to the borders of the countries from which the refugees were arriving–one can deduce that the government of Kenya thought the asylum situation was temporary. However, 24 years down the line, the camps as well as the refugees are still there. There was also a significant shift in Kenyans’ attitudes toward refugees. Rather than being seen as people that needed assistance, refugees were now viewed as burdens to the economy. Kenya was going through the Structural Adjustment Programs (SAPs) under the aegis of the Bretton Woods institutions. These were tough economic times as unemployment soared and inflation was high. A majority of Kenyans viewed refugees with suspicion, as they saw them as competitors for the few jobs available in the market. Refugees were also blamed for the rise in criminal activity. In the 1990s, there was a steep rise in small arms and light weapons circulating in the country, which was blamed on the increase of refugees and asylum-seekers accessing the country. This assumption, unsubstantiated by evidence, also contributed to the shift in Kenyans’ attitudes toward refugees and was the harbinger for the rise of xenophobia in the country. National Security versus Refugee Protection: 2007-2015 Until 2006, Kenya had no law exclusively addressing the status and rights of refugees. The Refugees Act of 2006, which became operational in 2007, defined refugee status, replete with exclusion and cessation clauses. It also outlined the rights and duties of refugees and asylum-seekers. Perhaps more importantly, it established institutions that would manage refugee affairs in the country. These include the Department of Refugee Affairs, the Refugee Affairs Committee, and the Refugee Affairs Board. The act also provided refugees with the right to move and earn a living. It incorporated the provisions of relevant international conventions into the domestic legislative framework. Refugees could by right access work permits, seek and gain employment, or start a business. However, the implementation of the act presented a problem for refugee access to this right.
Whereas the law provided the right to work and access work permits, the same law restricted the movement of refugees. Refugees were required to reside in refugee camps unless they had authorization to live elsewhere. Seeking a work permit was not a basis for applying for this authorization. Work permits were only granted in Nairobi, not in the camp, and thus refugees had limited access to this document. Those who decided to live and work in urban areas without authorization often did so under a constant threat of harassment and intimidation. At the same time, Al-Shabab attacks in Kenya increased. This led the Kenyan government to close the border between Kenya and Somalia in 2007. This didn’t mean that Somali asylum-seekers could not access the country, as a large number of them did at the height of the drought in 2011, but it did mean that government officers at the border were withdrawn. These attacks continued unabated, leading the government to enact stricter encampment measures. Hitherto, there had been no legal instrument that defined where refugees ought to reside. In 2014, the Dadaab and Kakuma refugee camps were legally recognized as refugee camps. Refugees were thus formally required to reside in the camps. The government also passed a law that capped the number of refugees allowed to be in the country at 150,000. This provision was eventually declared unconstitutional by the High Court of Kenya. Currently, refugees and asylum-seekers are still required by law to reside in refugee camps and cannot venture out without a movement pass (written authorization from the Kenyan government). Infringement of this right incurs a penalty of a six-month jail term, a fine of 20,000 Kenyan shillings (approximately $200), or both. Despite this rule being in effect, there are still many refugees residing illegally in urban areas, living in a precarious situation in which they can be and often are arrested. The Refugees Act of 2006 is currently undergoing review. Gaps in refugee reception, registration, residence, and durable solutions have been identified. A team of technical experts has been set up to draft a legislative proposal to present to parliament. There is still concern among many legislators that refugees cause insecurity. Therefore, a lot of advocacy needs to be done to educate these legislators on the rationale behind the refugee regulatory framework, as well as to offer them the opportunity to interact with the refugees themselves. Without this advocacy, Kenyan leaders’ attitudes toward refugees may not change and we may continue to witness the securitization of the Kenyan asylum space.
