Repatriation of Somali refugees from Kenya and the principle of non-refoulement

On 10 November 2013, the governments of Kenya and Somalia, and the United Nations High Commission for Refugees (UNHCR), signed a tripartite agreement to repatriate Somali refugees from Kenya to ‘safe areas’ in southern Somalia. The exercise was expected to be voluntary. Instructively, the idea was conceptualized after the formation of the new Somali Federal Government and the agreement came amid reports that between 30,000 and 80,000 Somali refugees had freely returned to Somalia since January 2013. Coming on the backdrop of the 21 September 2013 terrorist attack on Westgate Mall in Nairobi, however, the renewed impetus by the Kenyan authority to repatriate Somali refugees was/is seen more as a move buttressed by Nairobi’s security concerns. This is particularly evident from allegations that some of the terrorist attackers on Westgate Mall were based or used the Daadab Refugee in North Eastern Kenya as their logistical base. The Kenya government has also maintained that it has been, disproportionately, shouldering the huge burden of the Somali refugees with limited support from the international community.

Of concern, however, is whether or not the current security environment inside Somalia is amenable to voluntary repatriation and if the Kenyan government will observe the human rights obligations relating to Somali refugees as per the 1951 Refugee Convention that emphasizes the principle of non-refoulement to which Kenya is a state party together with its 1967 Protocol and the 1967 OAU Convention governing specific aspects of refugee problems in Africa. The principle of non-refoulement is central to refugee law and provides for the protection of refugees from being returned to places where their lives or freedoms could be threatened.

Following the signing of the tripartite agreement, a number of non-overnmental organisations including the International Rescue Committee (IRC), the Norwegian Refugee Council (NRC), INTERSOS, Action Contra la Faim (ACF) and Tear Fund expressed willingness to work with the parties to the agreement to facilitate the voluntary repatriation process, but pertinently urged for continued consultation and engagement in the ‘processes and plans around solutions and the practical implications of the Tripartite Agreement’. Significantly, a tripartite commission was to be created following the agreement to ‘draft an operational plan and provide policy guidance to effect the provisions of the agreement and regularly evaluate its progress’ and so what constitutes safe areas is still under discussion with refugees. Kenya’s Cabinet Secretary for Interior and Coordination of National Government, Mr. Joseph Ole Lenku, however, insisted that that there was ‘no turning back’, and that it was ‘time to say good bye and wish Somali refugees the best as they go back home.’ Kenya has also argued that the repatriation of refugees will expedite their reintegration inside Somalia and form a basis for rebuilding the Horn of Africa nation.

Instructively, while there are two main refugee camps in Kenya, Kakuma Refugee Camp in northwestern Kenya and Daadab in northeastern Kenya, it is Daadab Refugee Complex, the largest in the country and most congested refugee site, that has been in the limelight over the repatriation process. Daadab has been hosting about a half a million refugees mostly from Somalia since the outbreak of civil war 1991 and in October 2011, witnessed kidnappings of aid workers, something that, in some measure, contributed to Kenya’s military intervention in Somalia. It is estimated that there are about 500,000 other undocumented Somali refugees in Kenya. The Daadab refugee camp has been the focus of discussion on terrorism in Kenya because of its linkages to the activities of the Al-Qaida linked Al-Shabab terror group.

While the Kenyan government has a right to pursue its security interests and protect its people from terrorist attacks and threats, it is important that it adheres to relevant international standards in the repatriation process. It is revealing that there are suggestions of differences between the Kenyan government and the UNHCR with the former implying the process was inevitable given that ‘it was in the best interest of refugees and their (Kenyan) hosts’, while the UNHCR representative in Kenya, Mr. Raouf Mazou maintains that the return of the refugees would only be carried out on a voluntary basis as per the tripartite agreement, and that the gradual process would take at least ten years to complete. Kenya has not alluded to the only possible exception to the rule of non-refoulement provided for by the United Nations Convention Art 33(2) that accepts refoulement on the basis that ‘the person to be expelled constitutes a danger to national security’. For voluntary repatriation to succeed, there is need to invest substantial resources in the areas of education and health facilities, among others, in the “safe areas” to make the repatriation appealing. This responsibility belongs not only to Kenya and the nascent regime in Somalia, but to other countries too in the international community.

For Kenya, its biggest security problem may, however, not be the Daadab Refugee Camp but the country’s inability to police its borders. In fact, some have argued that any move to repatriate Somali refugees against their will as implied by Kenya’s Cabinet Secretary for Interior may be counter-productive, as the refuges would still clandestinely find their way through the porous border into the country. It is also important to understand that a sizable population of Somali refugees were born in the camps in Kenya and have little affinity to their parents’ country of origin. It is therefore, crucial that the refugee repatriation process is truly voluntary and that Kenya’s national security concerns are not prioritized over the rights of refugees. Any forceful repatriation could easily play into the hands of Al-Shabaab by forming a fertile recruitment ground if not a complete lack of cooperation from the refugees.

* Hawa Noor is a researcher, Institute for Security Studies.

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