For the hundreds of thousands of people living in Kenya’s Dadaab Refugee Camp, the largest refugee camp in the world, life is in a never-ending state of flux. To the majority-Somali population at the camps, the Kenyan government has made very clear its intent to close the camp and force the refugees to return to Somalia, where they face devastating droughts and violence by Islamist extremists. Some reason to hope came in November 2016 when the government announced that the camp closures would be delayed for six months. Kenyan courts went even further, in February 2017, to say that closing the camps would be a violation of Kenya’s Constitution; however, there are fears that the Kenyan government will challenge or simply ignore this holding. Regardless of this potential constitutional violation, Kenya’s treatment of Somali refugees violates the African Charter on Human and People’s Rights (ACHPR), as well as the 1951 Refugee Convention.
Since opening in 1991, Dadaab has grown to an estimated 350,000 refugees, a “sprawling tent city,” comprised largely of people fleeing civil war and drought in neighboring Somalia. Violence within Dadaab has grown since Kenya sent troops to fight terrorism in Somalia in 2011, and the government is using this violence as an excuse to shut down the camp, which Nairobi deemed to be a “terrorist training ground” for al-Shabab fighters. A “voluntary” repatriation program was established with the assistance of the United Nations High Commissioner for Refugees (UNHCR), whereby $400 is offered as a “returns assistance” package. For reference, a small water bottle in Somalia costs roughly $0.40, while rent for a one bedroom apartment averages $60 per month. This program sparked a real dilemma for thousands of vulnerable residents of the camp: “Somali refugees are likely to believe they still have little choice but to return to Somalia armed with UN cash handouts, instead of risking deportation empty-handed.”
Human rights groups have been quick to point out that this practice is a clear violation of Kenya’s obligations both domestically and internationally. Kenya is a party to the 1951 Refugee Convention (and its 1967 Protocol), and Article 33 lays out the “prohibition of expulsion or return (refoulement).” It states: “No Contracting State shall expel or return (“refouler”) 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.” Kenya is clouding this prohibition through “voluntary” cash handouts to coerce Somali refugees to leave the camps, and the UNHCR must take a hard look at this practice and pressure Kenyan officials to keep Dadaab open. Within the African Union, Kenya’s closure of Dadaab and attempts to induce refugees to return to Somalia violates its obligations under the ACHPR, which the state ratified in 1992. As stated in Article 12, “every individual shall have the right, when persecuted, to seek and obtain asylum in other countries,” and “mass expulsion of non-nationals shall be prohibited.” Countless stories abound of refugees who took the UNHCR’s money and attempted to return to Somalia, only to face almost-instantaneous violence. One case involved teenage brothers who were repatriated back to Somalia; just five days after repatriation, their father was slaughtered by al-Shabab, forcing them back to Dadaab.
It was a major victory for those in Dadaab and for refugees in general when Kenya’s High Court deemed attempts by the Kenyan government to repatriate Somali refugees, close Dadaab, and disband the Department of Refugee Affairs unconstitutional. Judge Mativo declared that repatriations were “arbitrary, discriminatory and undignifying and hence a violation of Articles 27 and 28 of the [Kenyan] constitution and consequently the same is null and void.”
The unfortunate reality is that the Kenyan government has yet to commit to abide by this ruling. In fact, the government has already vowed to appeal the ruling, claiming that it has the “cardinal responsibility of providing security for all Kenyans.” It is left to regional and international bodies to remind the government that not only is Kenya prohibited from expelling refugees back to Somalia under the Refugee Convention, but that its own domestic judiciary deemed that practice unconstitutional. Putting hundreds and thousands of lives at risk by closing Dadaab would undoubtedly result in the dire consequences the Kenyan government seeks to prevent.