By Noah Kiplagat
It took commencement of Donald Trump presidency for the deeply ingrained immigration and refugee problems to come to a sharp global focus. Indeed this was a time bomb waiting to explode, with his executive orders to ban all Refugees and immigrants from seven Muslim countries having been overturned by a federal judge and thereafter a federal appeals court with all three judges in the panel unanimously upholding the decision against president Trump executive orders, clearly this is a conundrum not only for America but the world over. American crisis aside, Europe, on the other hand, has not been left behind, it has had its fair share of the problem to the extent of triggering the departure of the U.K from the European Union and this was majorly caused by the conflicts in Syria, Iraq, Afghanistan and Libya. In the year 2016 alone the continent witnessed more than 1 million refugees and immigrants most of them fleeing deteriorating insecurity and human right abuses in their respective countries.
Shifting the gears to what really is the focus of this exposition; immigration is a broad connotation which requires much scrutiny and from it stems the troublesome issue of asylum seekers and refugees globally. According to UNHCR report titled “Global Trends Forced Displacement in 2015”, more that 65 million people around the world have had to flee their homes due to war, persecution, violence and human rights violations. This being the highest number of refugees recorded in the history of UNHCR since its establishment in 1950, the African continent is the most affected with over 16 million people having been displaced or forced to flee to other countries. According to the report, this number has soared partly due to ongoing civil war in Somalia, crises in the Central African Republic (CAR), Boko Haram crisis in Nigeria, South Sudan and new conflict in Burundi. Of late Africa has seen refugees from Middle East Countries like Yemen.
The ongoing problem has seen the UNHCR establish more than 12 displaced people camps in Africa in 2015 alone, and an expansion of the existing ones and this was just but the beginning of another journey of problem-solving as the refugees require services such as education, health care, safe environment protection from other societal problems such sexual and gender-based violence (SGBV) amongst themselves where they are camped. However with all this developments countries have been reluctant to take in refugees citing, security concerns as the number 1 reason on the list, financial concerns and at times even economic challenges or rather labour competitions and population control. Turning focus to what seemingly is the problem one cannot fall short of blame or reason but the most important issue underlies in finding a solution to this problem and globally many have always opted to go to courts seeking relief for asylum and refugee status both internationally and domestically.
Case of Kenya
In 2016 the refugee crisis brought Kenya policy and diplomatic headaches, Kenya and Ethiopia being the main host countries for refugees in that year in the Eastern African region. This brought Kenya to the global attention almost breaking its diplomatic ties with its important international allies. For Kenya, the issue specifically revolved around the executive order to close down two refugee camps (Kakuma and Dadaab) and to disband the Department of Refugee Affairs (DRA). Citing the cessation of the circumstance giving rise to the refugee status, the justifiable emergent challenges that render Kenya incapable of continued hosting of refugees and the persecution for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion, external aggression, occupation, foreign domination or events disturbing public order as provided under section 3 of the Kenyan Refugee Act 2006, the executive decision would see forceful repatriation of all the refugees residing in the two camps and other 50,000 refugees residing in Kenya’s Capital Nairobi.
Reception to this decision was highly unwelcome both in the private sector and the civil society leading to a case brought against the government, petition No. 227 of 2016 Kenya National Commission on Human Rights & another v Attorney General & 3 others which saw the High Court overturn the executive decision to close down the two refugee camps (Kakuma and Dadaab) and disbanding the Department of refugee affairs. In reaching this conclusion the court laboured itself to determining whether or not the Government decision violated the principle of nonrefoulement and if there was a constitutional violation of refugees’ rights which the court held in the affirmative.
Before delving far it is vital to render a brief analysis into the principle of Non-refoulement as this principle is considered the fundamental principle in asylum and international refugee law. Various International instruments on the refugee issue define this principle but the widely accepted definition is encapsulated under article 13 of the 1951 Convention relating to the Status of Refugees, which states that:-
“No Contracting State shall expel or return (‘fouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
There are many other instruments defining this principle but vital to this discussion is what is captured under article 33(2) of the 1951 Convention as legitimate exceptions to Non-refoulement and the provision provides that this principle may not be claimed by a refugee ‘whom there are reasonable grounds for regarding as a danger to the security of the country … or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’. The import of this is that a refugee can exceptionally be returned in case he is a threat to the national security of the host country and in case their proven criminal nature and record constitute a danger to the community.
Precedent established by the European Court of Justice in 1997 gives life to the national security exception to Non-refoulment and explained that there must be a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society and with regard to ‘particularly serious crime’-exception the court was of the view that such a decision should involve a careful examination of the question of proportionality between the danger to the security of the community or the gravity of the crime, and the persecution feared. The application of this exception must be the ultima ratio (the last recourse) to deal with a case reasonably.
The court having considered the Human Rights Committee’s jurisprudence articulating on this negative obligation emphasising that placing individuals in another jurisdiction where there is a risk of torture are equivalent to a positive act of torture itself. In the end result the Courts’ final holding was that there was indeed breach of non-refoulment and in effect breach of international law, international conventions and the country’s obligations under various conventions to which Kenya is signatory and above all the Kenyan Constitution specifically violation of Article 39 guaranteeing the freedom of movement and the right to leave Kenya at will and also Article 42 providing for economic and social rights.
A close analysis of the above Kenyan Court decisions, one cannot fail to see that indeed the courts can guarantee the rights of the Refugees and asylum seekers but clearly the courts have not solved the root cause of the problem, the economic challenges presented by them, the issue that led them to flee their home countries, the ever increasing population in the host country, their security and many others.
True to contemporary view among jurists that courts are rarely, if ever, engines of social change at least we can trust the progressive 2010 Kenyan Constitution to protect the values already established and with Article 39 stating that every person has the right to freedom of movement and the right to leave Kenya at will, such persons include refugees and are equally entitled to economic and social rights guaranteed under article 42. In this case, therefore, it is safe to appreciate that Refugees rights are human rights and they must be protected. In Kenya, it is safe to say that refugees are welcomed, recognised and protected by law.
The Way Forward
Critically the African refugee crisis emanates from political instability coming from immature democracies, specifically for Africa, lack of impartiality when it comes to choice of leaders. From this issue, it digresses into Ethnic intolerance leading to violence, persecution and lastly violation of human rights. The societal science of association considered by Alexis de Tocqueville’s as the mother science of progress upon which the progress of all the other things is dependent on has always been disrupted by external factors leading to the problem being insolvable by the institution placed to resolve such animosity in respective states.
The upshot of the foregoing is that immigration is a global issue, it is therefore important to appreciate that immigration challenges cannot be fully contextualized within the context of municipal laws as it is greatly influenced by international law and as we endeavor to find solution to the global refugee crisis we ought to understand that solutions do not only lie in the domestic courts of a given country but in international community coming together as one. Even so, as we enact domestic legislation as well as international instruments on this trivial issue we ought to ensure that it combines both the compassion and responsibility aspects of humanity without injuring hard working citizens in any given nation. In this regard it is safe to say the argument that immigration is an African issue or a given countries’ problem does not hold true, Immigration is a global concern which requires global solutions.
The writer is a lawyer at Arusei & Company; Legal Researcher for Savic Consultants and Founder of the Mukami Kiplagat Foundation