FORCEFUL RETURN OF ASYLUM SEEKERS IS A BREACH OF KENYAN AND INTERNATIONAL LAW

We write with concerns on refugees and asylum seekers rights abuses by law enforcement officers and by extension the Government of Kenya.

We take note of the huge presence of both military and police in the North Eastern Province and appreciate the need to strengthen the security of the country against possible intruders who may have bad intentions for Kenya.

However, our concerns stem from the worrying trends of law breaking – bribery, arbitrary arrests and detention of asylum seekers and refugees by law enforcement agents. The manner in which your officers have been handling asylum seekers and refugees in blatant disregard of the provisions of the Refugees Act 2006 and other International laws that Kenya is signatory to and therefore bound by leaves a lot to be desired.

We have witnessed on many occasions genuine asylum seekers and refugees including women and children being forcefully returned. Asylum seekers after entering the country are entitled to a due process for their status to be determined as provided for by Sec. 11(3) of the Refugees Act 2006. On Monday, 30 March 2009, asylum seekers in a bus from Liboi were captured at Dadaab town by officers of the Kenya army and Kenya police and returned to the frontiers of war in their country Somalia. This was done without regard to due process, even when the Department of Refugee Affairs and UNHCR were but a ‘stones throw’ away from the town. We opine that this is a breach of the same laws that officers are supposed to enforce.

The principle of NON-REFOULMENT (not to forcefully return a person to a place where their lives would be danger) is an overriding principle in refugee protection and it has clearly been stipulated under Section 18 of the Refugees Act 2006, Laws of Kenya and Article 33 of the 1951 Convention Relating to the Status of Refugees which Kenya is signatory to.

The Refugees Act clearly provides for the process of registering presence on entry into Kenya. The relevant offices charged with that responsibility for now are:

- The Department of Refugee Affairs headed by the commissioner (which is represented by the camp manager in Dadaab)
- UNHCR offices in Nairobi and the sub offices at the refugee camps.

It can be deduced that as the asylum seekers were arrested in Dadaab, they were seeking to have their claim to asylum assessed by a competent authority. In any case, Somali refugees are currently enjoying prima facie status as per section 3(2) of the Refugees Act of Kenya.

We argue that the continued border closure does not serve any ones interest and it is an opportunity lost by the government of Kenya. It would benefit the government more for the border to be re-opened so that it is aware and in control of who is coming in and going across.

For the reasons raised above, it is our assertion that the actions by the Kenyan Government and its officers are wrong and should cease hence forth. We recommend that:
- The law enforcement officers guilty of abuse of power and breaking the law should be investigated and disciplined
- The Government should immediately cease the return of people to places where their lives may be in grave danger
- In line with Kenya’s obligation under international and Kenyan law, the government should ensure that asylum seekers are able to access the Refugee Status Determination Process
- The closed refugee transit centre in Liboi should be re-opened to ensure orderly registration of all newly arrived and allow for vetting of those who may want to take advantage of the asylum process.

Judy Wakahiu
Refugee Consortium of Kenya