1 October 2013: Updates on the West Gate Mall Attack
30 September 2013: Updates on the West Gate Mall Attack
GoK Directive quashed in historic court ruling - 26 July 2013
(a) I declare the Government Directive, contained in the Press Release and correspondence dated the 18th December 2012 and 16th January 2013 respectively, threatens the rights and fundamental freedoms of the petitioners and other refugees residing in urban areas and is a violation of the freedom of movement under Article 39, right to dignity under Article 28 and the right to fair and administrative action under Article 47(1) and violates the State’s responsibility towards persons in vulnerable situations contrary to Article 21(3).
(b) I declare that proposed implementation of the Government Directive, contained in the Press Release and correspondence dated the 18th December 201 and 16th January 2013 respectively, is a threat to the non-refoulment principle contained in section 18 of the Refugee Act, 2006.
(c) The Government Directive, contained in the Press Releases and correspondence dated the 18th December 2012 and 16th January 2013 respectively, be and is hereby quashed.
(d) There shall be no order as to costs.
DATED and DELIVERED at NAIROBI this 26th day of July 2013
Some snapshots from the judgement. You can also read it in full here
The proposed implementation of the Government Directive is that it is a threat to the rights of refugees. First, the policy is unreasonable and contrary to Article 47(1). Second, it violates the freedom of movement of refugees. Third, it exposes refugees to a level of vulnerability that is inconsistent with the States duty to take care of persons in vulnerable circumstances. Fourth, the right to dignity of refugees is violated. Fifth, the implementation of the Government Directive threatens to violate the fundamental principle of non-refoulement.
Freedom of movement and the relocation and encampment
The Constitution does not prohibit refugees from residing anywhere in Kenya. Such a right is readily available to refugees by reason of application of the 1951 Convention and application of Article 19(3)(b) of the Constitution which states that, ―The rights and fundamental freedoms in the Bill of Rights – (b) do not exclude other rights and fundamental freedom not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter. It follows therefore that any limitations to these rights cannot be arbitrary and must comply with the standards set out in Article 24. . . . I find and hold that Government Directive which targets refugees and asylum seekers in urban centres is a threat to their right to movement enshrined in Article 26 of the 1951 Convention as read with section 16 of the Act.
Right to fair administrative action
The Government Directive in this respect, being a blanket directive, is inconsistent with the provisions of the Act and international law. It amounts to taking away accrued or acquired rights without due process of the law. Some of the individual petitioners have demonstrated that they hold valid refugee identity cards and or had applied for renewal of the same. The policy of relocation and encampment adopted by respondent also fails to take into account families with children, those on medical treatment like the 2nd petitioner who is in Nairobi in order to access medical treatment and the specific fact situation of the individual refugee. In order to considered a refugee, each applicant is assessed individually and therefore a process that seeks to deny such a person the rights accrued to him or her by failing to take into account the individual circumstances cannot be reasonable or fair. I find and hold that a blanket government directive which has no regard for individual circumstances of the urban refugee is arbitrary and discriminative.
Right to dignity
The petitioners and other refugees have established roots in the country and are productive residents and if the policy is implemented they will be uprooted from their homes and neighbourhoods in what is intended to be a security operation. Mr Masitsa, learned counsel for the petitioners, asked the court to consider the case and put weight on the fact that human dignity has to be understood against the backdrop of appreciating the vulnerability of refugees and the suffering they have endured, the trauma and insecurity associated with persecution and flight, the need and struggle to be independent and the need to provide for themselves and their families and the struggle to establish normalcy in a foreign county. I agree with this submission. Weighed against exposure to arbitrary administrative action and abuse of their person in the host country, refugees who have established some normalcy and residence in urban areas will have their dignity violated in the event the directives are to be effected. Family, work, neighbours, and school all contribute to the dignity of the individual. The manner in which the Government Directive is to be carried out undermines human dignity. I therefore find and hold that the Government Directive threatens to violate the right to human dignity under Article 28.
Earlier in this judgment I have stated that due to their position, refugees are considered vulnerable. That the State can direct organisations and other bodies not to provide assistance to urban refugees is directly inconsistent with its special responsibility towards vulnerable persons under Article 21(3) quite apart from undermining the right to dignity and I so find.
Whether the Government Directive can be justified under Article 24
The State has not demonstrated that the proliferation of the refugees in urban areas is the main source of insecurity. Furthermore, confining some of the persons of independent means, those who are employed or carry on their business to refugee camps does not serve to solve the insecurity problem. While national security is important and should not be compromised, the measures taken to safeguard the same must bear a relationship with the policy to be implemented. Security concerns must now be viewed from the constitutional lens and in this regard there is nothing to justify the use security operation to violate the rights of urban based refugees.
New Website on Urban Refugee Programs and Best Practices
Starting this month, you'll have a new place to look for resources and insights on effective programming for urban refugees: urbangoodpractices.org
This collaborative project is meant to serve as a compilation of positive examples of urban refugee services. These best practices will be categorized by sector, organization, and geographic location so users can easily search for the information most relevant to them.
Check it out, and help the site grow by submitting your own success stories!
HRW Report on Police Abuse of Nairobi Refugees
Human Rights Watch has released a new report on police abuse of Nairobi refugees since November 2012. The report cites testimony from refugees who have been raped, beaten, illegally detained, and extorted by various branches of the Kenyan police forces. HRW characterizes these abuses as torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
For more information, see HRW's press release or download the full report.
RI Report on Effects of Government Directive
A new Refugees International report, Kenya: Government Directive Leads to Severe Abuses and Forced Returns, covers the increased harassment and discrimination refugees have suffered since the directive, the worsening of conditions in Dadaab, and implications the GoK's actions have for global refugee policy. View the report here or download it here.
UNHCR Releases Official Position on the Directive: 25 January 2013
On 25 January 2013, UNHCR spokesperson Melissa Fleming held a press conference in Geneva regarding the Kenyan government's relocation directive. Read a summary of her remarks below or view it on the UNHCR website here.
UNHCR position on the directive by the Kenyan Government on the relocation of refugees from the urban centres to the refugee camps
Briefing Notes, 25 January 2013
This is a summary of what was said by UNHCR spokesperson Melissa Fleming – to whom quoted text may be attributed – at the press briefing, on 25 January 2013, at the Palais des Nations in Geneva.
UNHCR has been in urgent consultations with the Government since December, when the Government of Kenya announced a directive immediately discontinuing the reception and registration of asylum-seekers in Nairobi and other urban areas and for them to all be relocated to the refugee camps.
UNHCR expressed its serious concerns about the impact of the policy from the protection, human rights and humanitarian point of view. In particular, the lives, education and livelihood of thousands of refugees who have settled and lived lawfully in the urban centres for years would be severely disrupted. UNHCR called on the Government not to implement the new directive.
The Government however made clear its determination to go ahead with the enforcement of the policy. UNHCR has since been working to ensure that any such implementation would be properly managed, consistent with essential refugee protection and humanitarian principles and would avoid human suffering. The Government subsequently established an Inter-Ministerial Committee establish how these principals would be assured in implementing the new policy.
When news broke last weekend that a security operation to round up refugees in Nairobi and relocate them to the camps was imminent, UNHCR expressed its concerns to the Government and urged against such an operation being launched.
The Government has since provided assurances that a round-up would not take place and reiterated its readiness to work with UNHCR to ensure that refugee protection principles would be respected. Meanwhile, on 22 January, in an application brought by two refugee rights NGOs, the High Court of Kenya issued an injunction temporarily halting any action to implement the relocation direction pending a full hearing on the matter.
UNHCR is sustaining its efforts with the Government to ensure that in any implementation of the new directive, refugees and asylum-seekers would not be put in harm's way or their vital protection and human rights transgressed as unfortunately often happens in operations of this nature and scale.
UNHCR also hopes that the Organization's urban refugee policy that has been supported by the Kenyan Government as the best way forward for refugees who are able to fend for themselves and participate in the development of their host communities will remain in effect. This policy underlines that cities are legitimate and critical places for refugees to reside and exercise the rights to which they are entitled.
There are currently 56,000 asylum seekers and refugees registered with UNHCR in Nairobi and other urban centres in Kenya. The largest segment of this group is made up of Somalis (33,844) followed by Ethiopians (10,568) and nationals from the Democratic Republic of the Congo (7,046). A minority comes from Eritrea, South Sudan and the Great Lakes.
For further information on this topic, please contact:
Call to Apply: DAFI Scholarship Fund
Windle Trust is accepting applications for DAFI scholarships, which provide funding to refugees for continuing education at the tertiary level. Windle is targeting beneficiaries in Dadaab, Kakuma, and urban areas. Download the application form here. For more information about DAFI scholarships, see here.
KCSE Registration Brochure
RCK has a new informative brochure which explains the process of registering for the Kenya Certificate of Secondary Education exams. Download it here.
Legal Assistance for Refugees and Asylum Seekers
Refugees and asylum seekers requiring legal help can call Kituo Cha Sheria at 0722452365 or 0723122250.
Interagency Online Referral Form
Make interagency referrals online and assist clients to access critical services.
The URPN referral form is online and available for members to use. Contact your WG lead for the password.
UNHCR Detention Guidelines
These are the UNHCR's Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention
Right to Work Brochures
These materials educate refugees on their right to access employment. Available in French, Somali, and Oromo.