The Kenyan government has come under sharp criticism following its decision to return refugees in Dadaab Camp back to Somalia. While Kenya as a sovereign State has the right to control the entry, residence and expulsion of aliens, this right is subject to treaty obligations as was stated in Abdulaziz, Cabales and Balkandali v The United Kingdom. The 1951 Refugee Convention and its 1967 Protocol are applicable to Kenya in their entirety as Kenya acceded to them without any reservations. This also applies to the 1969 OAU Convention on refugee problems in Africa. All these conventions form part of the laws of Kenya pursuant to Articles 2 (5) and (6) of the 2010 Constitution which make international covenants ratified by Kenya and customary international law part of Kenyan law.
Both Article 5 of the OAU Convention and Article 1C(5) and (6) of the 1951 Refugee Convention stipulate that the repatriation of refugees to their countries of origin can only be carried out either voluntarily, or pursuant to the cessation of refugee status respectively. As regards to the former, the OAU Convention prescribes safeguards meant to guarantee refugees’ safe return to their homeland while cessation under the 1951 Refugee Convention is only applicable once it has been judged that the circumstances in the country of origin have fundamentally and durably changed so as to permit the cessation.
Having this in mind, the directive to return refugees to Somalia without their consent is thus a breach of the non-refoulement principle prohibiting the forceful return of refugees to persecution or danger recognised both under International Humanitarian and Human Rights Law. Although an expelling State is not generally under an obligation to guarantee the rights of persons in another jurisdiction, its responsibility is engaged when it makes a decision relating to a person within its jurisdiction, and the inevitable and foreseeable consequence is that the expelled person’s fundamental human rights will be violated in another jurisdiction.
Of particular importance is the fact that the principle of non-refoulment is acknowledged by Kenya in Section 18 of its Refugee Act. This therefore means the directive can also be said to be a direct breach of the State’s own statutory provisions. Moreover, Kenya has a tripartite agreement that only allows voluntary repatriation and places an obligation on the government to ensure the safety and security of those being repatriated as well as respect for the preservation of family unity. The directive issued would therefore fly in the face of this agreement. It also undermines the family institution as many of the refugees may well be separated from their families having intermarried with members of the indigenous communities in Kenya. Additionally, given that the country is presently at war with the Alshabaab in Somalia, many of the refugees may be the subject of attacks having fled and “not shown loyalty to their State” (Somalia).
A further important point to be noted is that, while Article 33 (2) of the 1951 Refugee Convention allows for lawful refoulement, the provision must be applied only on an individual and exceptional basis. The directive issued by the government however seeks to expel hundreds of thousands of refugees for the ostensible reason that terrorists were using Dadaab Camp as a hideout. Despite the threat posed by terrorism being beyond dispute, this cannot be used as an excuse for weakening fundamental human rights enshrined in both international and domestic laws binding to Kenya. Not only would this be a violation of an absolute and peremptory rule of international law, it may also amount to a crime against humanity.
States, in attempting to combat terrorism, are required to adopt measures in accordance with their obligations to protect human rights under international law. Additionally, where expulsion is on grounds of public order or national security, Article 32 of the 1951 Refugee Convention contains a number of procedural safeguards. It requires that the expulsion ‘of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law’.
Based on the overview just presented, the directive to return Somali refugees could amount to a violation of both national and international laws. The ramifications of these are that the directive may attract infamy and lead to sanctions against Kenya by the international community.