Balancing the Protection of Refugees with National Security: a Critical Analysis of the Kenya Refugee Act

ABSTRACT.

It has become a reality that most refugee situations are found in the worlds' most hostile environs. This is due to the continuing violence and persecution of refugees and thus they cannot return to their countries.

For over twenty years Kenya has been receiving a large refugee population. The perception of refugee issues has taken a different stance from being a humanitarian issue to a security threat in return this has made the government of Kenya to take the wrong course in seeking to deal with security issues. The analysis of the relationship between the refugee influx in Kenya and insecurity brings out a different perception. The research seek to analyse the role of the government in handling refugee issues versus security concerns, this translates to the aspect of human rights when handling refugee issues. This research used concepts from these theories such as societal security to contribute to knowledge and understanding of the nexus of refugee issues and insecurity. Secondary data was obtained from published scholarly materials, government reports, journals, newsletters and newspapers.

It is established that criminal groups from the neighbouring countries are responsible for the increase of insecurity in Kenya. They use the large refugee influxes to their advantage, to engage in illegal activities such as trafficking illegal firearms through the porous borders particularly the North of Kenya, which then, are used to commit crime in the country. Refugees, being a vulnerable group, and most of them from Somali, a country that has had conflicts for many years, are blamed for the insecurity. In consideration of all circumstances notwithstanding, Kenya has a mandate: to respect and improve the international refugee instruments of protection while at the same time ensuring security for its citizens. The Government of Kenya has been accused of breaching the human rights of the refugees through its various responses such as the encampment policy, Operation Linda Nchi, forced repatriations, police operations and harassments on the urban refugees, and also the reaction on the closure of Dadaab camp following a terrorist attack on Garissa University. The Kenyan Government has cited protection of its citizens in the pursuit of its national interests as the basis for its actions and responses.

There is therefore the need to strike a balance between obeying international obligations and that of protecting national interests.

LIST OF ABBREVIATIONS

IRIN Integrated Information Regional Networks

UNHCR United Nations High Commissioner for Refugee

OAU Organization of African Unity

UN United Nations

GoK Government of Kenya

CHAPTER ONE

INTRODUCTION TO THE STUDY

The first thing that comes into one's mind when national security is mentioned is the safety of the state's citizens if they are not secure then definitely that's an insecure country. On the background I will discuss the status of refugees in Kenya. Describe who a refugee is and the security issues related to refugees' in Kenya.

Buzan finds human security concept a problematic concept in international security, because to him, human race levels are difficult to construct as referent objects for security. On the other hand, his argument is centred in international state-centric perspective and therefore logically cannot endorse another view of security.

Sean Kay defines security as the absence of a threat to the stability of the international system, to countries or to individuals.

According to the 1951 Convention Relating to the Status of Refugees under Article 1 (2), refugees are defined as individuals who,

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Towards the end of 1980s, Kenya was reported to be among the leading host of East African origin refugees as a result of an influx of Somali refugees. Since then, Kenya has hosted thousands of refugees from East and Horn of Africa including Southern Sudan, Uganda (during the autocratic rule of Iddi Amin) and Somalia refugees fleeing clashes and subsequent civil wars after the ousting of Said Barre in January 1991 among others.

Due to the political instability experienced in her neighboring countries such as Djibouti, Somalia and Eritrea, Kenya has become a destination to most of the refugees fleeing their nations. With insurgency of the militant group, Al-Shabaab, in Somalia, Kenya has been hosting refugees of both genders and age in the camps as they escape unrelenting war in their country. Although the aim of welcoming them was to offer them humanitarian services, security issues have been raised as the authorities think that the camps may harbor those insurgents. Kenya has experienced a spate of attacks believed to have been planned by the terrorist who reside in these camps.

Section 14 of the Refugees Act enacted in the year 2006 spelled out the rights of the refugees staying in Kenya. They were needed to enjoy the rights to education, settle anywhere within the borders of Kenya, and the right to seek and work in Kenya. In the 90s many countries experienced political instability, Somalia being a hotbed of terror.This led to migration of refugees, most of them from Somalia into Kenya through the borders. With the large numbers of Somali refugees arriving daily, the Government of Kenya (GoK) could barely provide Water, sanitation, food, and healthcare, which contributed to infants death and increased malnutrition rates. As a result, the Gok could no longer provide humanitarian assistance to the refugees. The early 90s also marked the migration of refugees who came to seek refugee from neighbouring countries such as Sudan . Dadaab is the world's largest refugee camp and is located in Garissa County, it houses 355,709 registered refugees, 95% of whom are Somalis who fled the country due to conflicts and drought. The number of refugees is, however, thought to be around 500,000.

The refugees had to be settled in camps so as to make humanitarian assistance simpler in administering and monitoring them and also likely to lower their chances of threats. Some of them were able to settle in Mombasa, those who had capital started businesses whilst others dealt in black markets that led to sale of counterfeit and illegal goods. There was a policy that exempted the Barawan refugee camps from any form of taxation. Any form of business established and run by these Somalia refugees in these camps thrived as they managed to sell their items at lower prices attracting more buyers. However, most of the locals who had their business and were paying taxes developed resentment toward these Somali refugees'

The pressure from the local business people was so much that the Gok had to listen to their concerns. A policy was implemented in 1997 that saw the closure of the camps and all the refugees relocated to Dadaab and Kakuma. Some refugees felt it was unfair and they opted to go back to their country regardless of the tension and uncertainty.

Until recently a majority of Kenyans had no knowledge that a refugee camp like Dadaab existed. More than 600 refugees originating from Somalia, all residents of East Leigh, were arrested in connection with various attacks. Another search for terrorists happened in 2002 and following that, more than one thousand migrants without permit got arrested . Despite paying a heavy price for standing by the people of Somali, the returns for Kenya have always been bitter. Every time Kenya has toyed with closing the refugee camps in its North Eastern region, the strongest opposition has come from international agencies.

There has been a distrust among Kenyans to the Somali refugee as a result of the repetitive attacks, which continues to blossom up to today. Countless number of persons over the years have continued to emigrate against their will because of persecutions by governments and Islamic groups. The government of Kenya has implemented a number of policies including closer the border between Kenya and Somalia in 2001 and the recent intent close of the dadaab camp.

Amnesty International has joined the UN and others in urging Kenya to halt its plans to close the world's largest refugee complex, arguing that forcing the 350,000 Somalis in Dadaab to return home would put their lives at risk and breach international law. Kenya ordered the closure of the camp after members of the Somali Islamist group al-Shabaab attacked Garissa University College on 2 April, killing 148 people.

Many of us believe that refugees from Somalia are to blame for the current insecurity in Kenya. As such, the government of Kenya is in a dilemma whether to continue hosting the refugees at the expense of the security of the residents or to withdraw their support. Besides, Kenya has to choose between playing the important humanitarian role of hosting those who flee their countries as result insecurity required internationally and ensuring there are no security threats.

However, the main concern is whether the refugees are a threat to the Kenyan national security. This document aims to establish the effect of the Kenya's policy to relax the laws that requires close scrutiny of the migrants to Kenya especially those that come from Somalia on the national security. Also, the aim is to explore the impact of the implementation of stringent domestic and international laws on the Kenyan national security.

STATEMENT PROBEM.

Terrorist attacks are one of the major problems facing Kenya today. A series of terrorist incidents have occurred in Kenya since august 1998 resulting to a number of deaths. The most recent being that on Garissa university where at least 147 people died following an attack by al-Shabaab militants.

When Kenya closed her Somali border in December 2006 as a security concern following the Islamic insurgency and Al - Shabaab threats, the then U.S.A Ambassador to Kenya, Michael Rannerberger had this to say: -

"The United States appreciates Kenya's efforts to care for the refugees in Dadaab. The U.S. government also understands that Kenya needs to ensure the security of citizens of North Eastern Province (now County) and control its borders. As a contracting party to the 1969 OAU convention on Refugees however, Kenya is obliged to allow Somalis to cross the border to seek asylum. "

The 1951 Convention on the Status of Refugees sets no specific requirements for national refugee status determination procedures . Therefore, it is left to each contracting State to establish the procedure that it considers most appropriate and in conformity with its particular constitutional and administrative structure.'' It is therefore clear that government officials in Africa are caught between their genuine concern for the refugees and their wish to honor international agreements to provide asylum, and the increasingly hostile grassroots response from their own impoverished people in refugee affected areas. It is on this basis that Kenya has set out its national status determination procedures in the Refugee Act 2006. However, the international scope of the 1951 Convention calls for certain common basic requirements which should be met by the determination procedure in each Contracting State. Most camps are located in hostile areas such as the northern part of Kenya. Refugees are not able to enjoy most of their fundamental rights such as freedom of movement. Kenyan immigration laws prevent them from moving out of their camps and thus they end up being susceptible to police harassment, detention and being charged with unlawful entry if found outside the camps.

The refugee situation threatens their self-sufficiency as a result of having left behind most of their assets as they ran away from home. The change of location makes it difficult for them to regain their economic security. However, international humanitarian agencies have over the years been active in providing assistance to refugees.

Kenya has experienced a high magnitude of refugees into Kenya as they escape crashes from the countries from her neighbors mostly Somalia after the fall of the government of Somalia in 1991. Various organizations and bodies offer their assistance to the refugees from these camps although they are faced with various challenges in their effort to offer support. Kenya has to agree to host refugees as required by the Refugee convention of 1951 and the OAU convention of 1969 on refugees. Despite the efforts to accord the refugees their right as required by the law, the government has enacted other internal measures to ensure that the migrants do not enjoy right not stipulated in the signed agreement. A perfect example is the policy demanding all refuges to settle in certain designated areas set aside for that purpose. These camps are expected to meet the international refugee camp standards. Most of these refugee camps are located in semi-arid areas with a hot dry climate, without surface water and attractive natural resources to enhance UNHCR's efforts of building self-sufficiency. This situation makes refugees, permanent dependants on UNHCR relief and a constant drain to host country's resources. Although the government of Kenya recognizes the need to host refugees by signing laws meant to protect them, managing the refugee remains a head ache. In April 2001, thousands of refugees fled to Kenya. The Somalis, the Sudanese and Ethiopian refugees have stayed in Kenya long, due to prolonged conflicts in their home countries. Insecurity in Kenya has been rising since refugees started streaming in, in large numbers. This situation has heightened the refugee burden and caused a lot of concerns in the government institutions mandated with handling security in Kenya. The borders have become extremely insecure.

Weiner, observes that, refugees can be a threat to the regime of their home country, to host country, can also pose cultural, social or economic threat and can be used as an instrument to threaten the host or country of origin. Perceived threats have a more significant impact on a state's actions than the real threats.The relationship between international refugee flows and national security can be understood as a social construct whereby discourses and practices have shifted refugee flows from a humanitarian idea to a security-oriented idea. The current rise in terrorist activities has been associated with the increasing number of refugees in Kenya. Kenyan anti-terrorist operations have targeted aliens including refugees especially from Somalia Kenya, seen as the source of terrorists it faces.

The Government's concerns are that terrorists can camouflage as refugees to enter the country and cover their activities including recruiting from the refugee population. Some groups such as the al-Haramain Islamic Foundation, al-Itihaad which have links with al-Qaeda, were carrying out humanitarian work in Somali refugee camps where they have established close links. Besides AI-Shabaab threats, the other security threat troubling Kenya and linked to Somalia is the piracy threat." This new tactic of hijacking ships and other sea vessels is threatening business and general voyage particularly in the Indian Ocean.

Kenya has continued to have a shift in its security policies based on its core national interest being national security and this has been greatly influenced by the influx of refugees and mainly Somali refugees and the insecurity in the country. This study seeks to analyze Kenya's response to the refugee influx and insecurity in the face of its national interests and international legal obligations relating to the protection of refugees.

OBJECTIVES.

The overall aim of this study is to analyze Kenya's response to the Somali refugee influx based on its national interests and international obligations on the refugees. The specific objectives include:

1. Critically analyse the role of the Government of Kenya in handling refugee issues vs. security concerns.

- This part is an introduction of how refugees are being perceived by the Kenyan government. In this matter, due to historical and political context, the Somali community plays a significant

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