Implementation of Tripartite Agreement on Hold

Brid Ni Ghrainne - 1st June 2014

As host to the largest Somali refugee population in the world, it is little wonder that Kenya’s shoulders have grown weary of carrying a burden which, in terms of numbers, falls just short of the half million mark.

Little wonder too is the desire of many Somali refugees to return to their country of origin. Many have spent over 20 years in Kenyan refugee camps after the collapse of the Somali government in 1991. Indeed, amidst reports circulating that between 30,000-80,000 refugees had returned voluntarily to Somalia in 2013, the time was ripe in November of last year to conclude an agreement to facilitate further returns. However, the implementation of this agreement reached a sudden halt in the last few days following the 27 May boycotting by the Somali Government of tripartite talks with Kenya and the United Nations High Commissioner for Refugees (UNHCR).

The Tripartite Agreement between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia, and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees Living in Kenya, 2013 was signed in 10 November 2013 and was welcomed by NGOs, UNHCR, and various stakeholders as representing an important step in the development of durable solutions for Somali refugees. The Tripartite Agreement has been carefully drafted so that the option of returning refugees to Somalia is not treated as an alternative to asylum. Return can only be carried out in specific circumstances, as it does not entail the cessation of refugee status and therefore there still exists insufficient protection from persecution in the country of origin.  Thus the principle of voluntary return and the right to return in safety and dignity form the backbone of the Tripartite Agreement. The Preamble of the Agreement also reaffirms the prohibition of refoulement, which protects refugees from being sent to places where their lives or freedoms are in danger. Kenya and Somalia are bound by this principle as States Parties to the 1951 Convention Relating to the Status of Refugees and Kenya is a State Party to the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which also prohibits refoulement.

Voluntary repatriation has not, however, been the practice of Kenya in the aftermath of the conclusion of the Tripartite Agreement. In April 2014, Kenya launched a massive security crackdown on Somali refugees following terrorist attacks in several areas, culminating in the forced deportation of 359 refugees. As various NGOs have informed us, the current situation in Somalia is not conducive to the mass return of refugees and only a few parts of Somalia are safe for return. Unsurprisingly, therefore, both Amnesty International and the UNHCR have condemned these acts as a breach of international law.

The Somali government has responded by refusing to attend a meeting concerning the Tripartite Agreement, which was due to take place on 27 May. According to the Somali government:

“As we are concerned about the plight of Somali refugees and the unlawful activities committed by the Kenyan security forces against the refugees of Somalia in Kenya, we cannot attend such meeting.”

The launch of a 12-member Tripartite Commission to oversee the gradual and voluntary repatriation process has now been suspended. It remains to be seen how the acts of the Kenyan and Somali authorities will impact the future of the Tripartite Agreement before its implementation has even begun. It is also worrying that the Tripartite Agreement can be terminated by either party at six months’ notice, and that at the time of writing, the parties to the Agreement have not engaged in dialogue to overcome this first but highly significant obstacle to implementation.

Author profile

Bríd Ní Ghráinne is completing a DPhil at the Law Faculty, University of Oxford. She holds an LLM in Public International Law from Universiteit Leiden, the Netherlands, and a BCL (International) from the National University of Ireland, Galway.

Citations

Bríd Ní Ghráinne, “Implementation of Tripartite Agreement on Hold,” (OxHRH Blog, 1 June 2014) <http://humanrights.dev3.oneltd.eu/?p=8443> [date of access].

Comments

  1. Maluha Jumba says:

    Kenya as a country has no obligation to engage in dialogues which are obviously going to be fruitless. The UNHCR is such a hypocritical UN entity which always try to intimidate what are perceived to be poor states. I am yet to hear UNHCR come out strongly concerning what is happening in Europe and the migrants drowning in the ocean due to denial of entry into Europe. The international community should thanking kenya for being patient with Somali refugees this far and instead of bashing it and saying how kenya is not observing international law and hiding behind the issue of non-refoulment. Were international laws meant for Africa or also for Europe? It so unfortunate we have some people in this age and time who still think that Somalis should continue living out of their country, life without identity and dignity, in the name of refugees. Kenya has succeeded where even world powers failed – has brought relative peace in Somali and the Somali nationals who are living in Kenya, having gotten Kenyan education and learnt the culture of peace and tolerance, goes home to build their country. Somali government, if at all is a government, is behaving badly. A government which fears its people is such a moribund and ineffective government and has not right to remain in power. It has to work out ways to receive its people not to shudder with fear and amazement at the mention of its people going home. It should style up and take control of matters and processes within its boundaries and stop being a cry – baby seeking international sympathy. Kenya’s resolve to have Dadaab camp closed is the best decision ever to have been taken by the government and after that, Kakuma Refugee Camp should also be closed because we cannot allow irresponsible behavior from our neighbors who later abuse our land. Kenya has no obligation to observe any international law or pact which threatens its sovereignty and the security of its people – the core mandate of any sensible government is to ensure the well-being of its citizenry.

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