16:00 - 17:30
Room: Arts – Lecture Room 4
Stream: International Security in Africa in the 20th and 21st Centuries
Chair/s:
Nathaniel Powell
Alleged Terrorists and National Security Challenges: Judicial Interpretation of ‘Non-Refoulement’ Under the Refugee Convention in Kenya
Charles Alenga Khamala
Africa Nazarene University, Law School, Nairobi
Law Society of Kenya, Nairobi, Kenya

Somalia’s 20-year civil war has led refugees to flee into Kenya, resulting in poltical, legal, socio-economic and humanitarian problems. Having revoked the status of Somali refugees en mass in April 2016, the following month the Kenya government ordered the closure of both Dadaab and Kakuma refugee camps by November 2016. This was not only because ‘grounds giving rise to refugee status had ceased’, but also ‘owing to national security’ challenges. Non-refoulement, a universally acknowledged human right, refers to the obligation of States not to refoule, or return, a refugee 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’. Consequently, the case of Kenya National Commission on Human Rights v Attorney General (2017) reversed those directives, holding inter alia that blanket labelling as terrorists is discriminatory and violates the principle of ‘individual criminality’.

By defining refugees, the non-refoulement principle, and its exceptions, the paper shall not only construct working concepts, but also frame the relevant Kenyan statutory provisions domesticating the non-refoulement requirement. My purpose is to set out the test for exceptions to the rule of non-refoulenment under refugee law. The objective is to evaluate how the Kenyan High Court has applied this test in several recent cases culminating its recent KNHCR case declaration – which voided the government’s mass expulsion of Somali refugees directing closure of Dadaab, the world’s largest refugee camp, as inter alia – violating its 1951 United Nations Convention Relating to the Status of Refugees obligations. Article 32 of the Convention provides that: ‘The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order’. Moreover: ‘The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require’.

Then paper problematizes the extent to which the High Court has consistently and correctly interpreted the non-refoulement prohibition of the 1951 Refugee Convention, when reviewing administrative actions and legislative provisions affecting refugees. The KNCHR case considered two exceptions to the non-refoulement obligation under Article 33(2) of the Convention, among other laws. First, the ‘national security-exception’. Second, the ‘serious crimes-exception’. This paper shall critically evaluate the inapplicability of these exceptions to the non-refoulement principle culminating in that recent landmark case declaring the above directives unconstitutional, null and void.

I begin by contextualizing the dilemmas of regulating refugees, balanced against national security challenges emanating from the anti-terrorism war which precipitate draconian directives. In Kituo cha Sheria v Attorney General (2013) Judge David Majanja explained that the refugee question is inextricably linked to geopolitical factors within the Eastern Africa region dating back to the 1970’s. In December 2012, following deadly grenade attacks in Kenyan urban areas, the Department of Refugee Affairs threatened to stop registration of asylum seekers in urban areas with immediate effect and to transfer of urban refugees to border camps. In 2013, however, on account of the government’s failure, inter alia, to disclose the rationale for drastic measures against that category of refugees, Judge Majanja annulled those directives. Curiously, the following year, the same judge rendered an opposite opinion in Samow Mumin Mohamed v Interior Security Cabinet Secretary (2014) despite comprising clearly similar facts.

Apparently when faced with challenges against governmental directives refouling alleged terrorists, the Court has nonetheless rendered conflicting interpretations ranging from condemning, constraining or condoning governmental decisions to even compensating refouled refugees. The paper shall explain why by distinguishing various decisions. In the Refugee Consortium case (2015) Judge Isaac Lenaola issued mandamus orders compelling the Government to re-unite a Congolese refugee mother with 48 re-located children on whose behalf she petitioned and awarded ‘a sum of Kshs. 50,000/- to each of the 48 affected children’. In CORD v AG (2015) the Constitutional Court annulled a legislative provision capping refugee numbers, on grounds that that amendment indirectly threatened to refoule over 300,000 Somali refugees. Judge Joseph Mativo in the KNCHR case correctly held that mass refugee expulsion violates international non-refoulement obligations. He amplified the African Charter on Peoples’ and Human Rights’ non-refoulement jurisprudence as a benchmark to measure the Kenyan interpretations. Some responses, to suppress Al-Shabaab’s public disorder and direct mass relocation of Somali refugees, invariably impact adversely on their rights. While the government insists on preserving national security and preventing crime, humanitarian groups claim protection against refoulement . Substantively, refoulement may be exceptionally justifiable on national security and public order grounds, but has perquisite procedural due process been followed?


Reference:
Tu-A23 International Security 3-P-004
Presenter/s:
Charles Alenga Khamala
Presentation type:
Panel
Room:
Arts – Lecture Room 4
Chair/s:
Nathaniel Powell
Date:
Tuesday, 11 September
Time:
16:45 - 17:00
Session times:
16:00 - 17:30