By Noah Kiplagat
In common parlance Asylum is a place of refuge, a sanctuary, normally a place free from violence, though contrary to this, it’s a globally known fact that asylum seekers or rather asylees face numerous injustices.
Well, to begin with, who is an asylum-seeker? In answering this question the United Nations High Commissioner for Refugee espoused the same stating that “an asylum-seeker is someone who says he or she is a refugee, but whose claim has not been definitively evaluated”. Clearly, from this definition, asylum-seekers are persons on the process to be refugees and as one Dutch statesman remarkably said: “Asylum seekers are not looking for ‘an asylum’ but a good place to live”. As we shall see in this article, it happens that very easily asylees end up being categorized as illegal migrants when denied the refugee status and who must leave the country or risk being forcefully deported.
As an ancient juridical concept, asylum rights recognize the social need to protect persons persecuted by their own country under the sovereign authority of another country. This concept has since attracted the force of law in the modern legal systems. Formally Article 14 of the 1948 Universal declaration of Human Rights lays the foundation of the right of persons to seek asylum from persecution in other countries, it’s this provision that the 1951 Convention on Refugee is built on and to which Kenya is a signatory. Domestically Kenya enacted the Refugee Act No. 13 of 2006 which provides extensively on the refugee and asylum seekers issues. Above all the Kenyan Constitution makes pronouncements on fundamental human rights and freedoms encompassing asylum rights, but, despite adequate legislation, asylum seekers still face injustices and enormous legal challenges in Kenya which we now move to discuss.
At the echelon of violations of the rights of asylum-seekers, is the Kenyan Authorities, specifically the Enforcement Authorities, Border Control and at times for lack of a better explanation ‘mean’ executive policies and directives. According to Lucy Kiama and Dennis Likule of the Refugee Consortium of Kenya in an article published in 2013 titled Detention in Kenya: risks for refugees and asylum seekers, there has been failure by law enforcement officers and other actors do draw distinction between asylum seekers, illegal immigrants and criminals resulting to asylum-seekers being treated as criminals something that goes contrary to the very essence of asylum-seeking concept or norm which is in nature a civil process. This has seen asylum-seekers being confined in the same confinements with illegal immigrants and general criminals specifically in prisons where in most cases they end up being exposed to torture, sexual assault or abuse, ill-health, lack of counseling support, poor diet and limited legal assistance contrary to the required constitutional standards.
Asylum-seekers also face a constant and imminent danger of wrongful prosecution for unlawful entry into the country and this is majorly attributed to the fact that enforcement officers routinely ignore the due process of law due to their inadequate understanding of asylum and refugee laws. Important to note is section 11 of the Refugees Act 2006 which requires that upon a person’s entry into the country whether legally or otherwise, such a person must appear before the Commissioner for Refugees in person within thirty (30) for purposes of making clear his intention to stay in the country as a refugee. However this has not been the case, in most cases aliens are arrested and charges preferred against them by the authorities without regard to the above-highlighted provision and most asylum seekers have ended up being prosecuted in ways that contravene the rights to fair hearing enshrined in the constitution and in effect contrary to the principles of natural justice.
Integral to access to justice for asylum-seekers is the rights to legal assistance and representation and as already mentioned above, asylum seeker rarely access this avenue of assistance and when they do, then it is at the very minimum incapable of guaranteeing them any meaningful assistance or fairness with the respective authorities. In addition to this, there is also the language barrier which further inhibits access to legal services considering the expense of a translator and short interaction periods when they get chances for legal aid services. Clearly, from the foregoing, asylum-seekers have always been left at the mercy of pro-bono lawyers appointed by various organizations such as the Refugee Consortium already mention hereinabove wherein the event lack of such assistance their fate remains unknown and at a high risk of prejudice.
The Kenyan Approach
Technical prejudices aside, the Kenyan Government in the recent past has not been friendly to refugees and asylum-seekers, complaining of insecurity and minimum support from the international community, the executive has from time to time issued directives directly affecting asylees and refugees as a whole. This has seen Uganda take the center stage as being the country with the most progressive refugee and asylum program in the region a reputation Kenya had enjoyed for a very long time. One such directive was the one issued on the 18th day of December 2012 through the department of Refugee Affairs stopping the registration of all refugees and asylum seekers in urban areas, the directive also required all agencies including UNHCR to discontinue offering direct services to refugees in Kenya.
In 2015 the Kenyan Government was at it again, this time in a more radical fashion issued another retrogressive directive requiring repatriation of all refugees in Kenya, Closure of two main refugee camps (Kakuma and Dadaab) and disbarment of the Department of the Refugee Affairs. Despite these directives having been overturned by the High Court of Kenya declaring them unconstitutional and contrary to Kenya’s obligations under international instruments that came as a huge relief to asylees, short-term damages had already been occasioned to asylum-seekers and refugees as serious protection gaps had been opened seeing deportations, police harassments and illegal detentions of these people.
Critically the long and short of this exposition is that the challenges facing asylum seekers in Kenya are not one to be solved by legislation only. Indeed there is adequate legislation in Kenya providing for this issue, the challenge, however, rests on the goodwill of the Kenyan government to put in administrative mechanisms for proper enforcement of the laws concerning asylum-seekers and refugees, protection of their rights provided in the various international instruments which Kenya is a signatory and majorly the general protection of fundamental rights and freedoms.
In seeing this through there is the need by the Kenyan government to strongly embrace the idea that Kenya is a port of refuge and it being the economic powerhouse in the region it has the greatest responsibility towards guaranteeing peaceful existence and co-existence among and with its neighbors respectively, both in times of peace and during unrests being the major triggers of the emergence of asylum seekers and refugees. While appreciating the fact that most asylum seekers are normally people from the neighboring countries, it goes without saying that regional peace and stability is a critical aspect in reducing the number of asylum-seekers and refugees and which will enable Kenya to continue embracing its economic prowess in the region. It is for this reason that Kenya should lead in the forefront through advocacy, aid support, vocational training, education and other ways that can foster peace and stability in the country among citizens and noncitizens such as asylum seekers and refugees.
It is important to appreciate that at times due to unavoidable circumstances the Kenyan Authorities may decline asylum applications and in effect fail to recognize the refugee status of an asylum-seekers in this regard such persons are considered as illegal immigrants or ‘illegal aliens’. Although such applicants still have the appellate avenue to the High Court for reconsideration, in the event that they are unsuccessful upon exhaustion of the avenue of appeal, section 12 of the Refugee Act No. 13 of 2006 requires that they are given reasonable time not exceeding ninety (90) days upon which they can seek asylum from another country and leave Kenya Voluntarily where if they fail they are ordinarily forcibly deported.
The writer is a lawyer at Arusei & Company; Legal Researcher for Savic Consultants and Founder of the Mukami Kiplagat Foundation