Kenya: Government Directive Leads to Severe Abuses and Forced Returns

Policy recommendations
  • The UN Refugee Agency (UNHCR) must defend its global urban refugee policy and protect the rights of refugees in Kenya to move freely and choose their place of residence.
  • UNHCR should allocate increased resources for protection work and increase its presence in affected urban areas.
  • None of the limited UNHCR funds intended to relieve overcrowding in Dadaab camps should be redirected to support the implementation of the Kenyan government’s directive for urban refugees to move to camps.
  • The U.S., UK, EU, and aid organizations must include the potential for violence against refugees in their election contingency planning.
  • The U.S., UK, and EU should press the Government of Kenya:
    • not to implement its December directive on urban refugees;
    • to resume registration of asylum-seekers in its cities and again permit services for urban refugees;
    • to investigate abuses allegedly committed by security services against refugees;
    • to ensure that living conditions for refugees are not causing de facto forced relocation and/or returns.

In December 2012, the Government of Kenya announced a directive that would force all refugees living in cities to relocate to camps, and shut down all registration and service provision to refugees and asylum-seekers in cities. This effectively empowered Kenyan security services to unleash a wave of abuse against refugees. That Kenya has not yet gone ahead with a forced relocation plan has led some to believe that the worst has been averted. Yet the directive caused severe harm even without being implemented. Many refugees felt forced to leave Nairobi following severe harassment. The directive has also been a set-back to Kenya’s notable advances in enabling urban refugees to support themselves, and it has put the UN Refugee Agency’s (UNHCR) global urban refugee policy at risk.

Government Directive Caused Severe Abuse of Refugees

Following the public announcement of Kenya’s directive in mid-December, refugees in Nairobi suffered serious abuse at the hands of security services. During a visit to Nairobi earlier this month, a Refugees International (RI) team heard numerous accounts of those abuses. Harassment and extortion of refugees by security services in Nairobi is not a new phenomenon, but the reports RI’s team received suggested that the prevalence and severity of this abuse increased significantly following the directive. Members of the security services treated refugees brutally during house-to-house searches and round-ups of individuals. Several refugees informed the RI team that they had been hit in the face by officers, and that large amounts of money and property were taken from them. There were many second-hand accounts of refugees being forced to pay bribes of up to 200,000 Kenyan shillings ($2,200) to secure the release of family members from police custody. Prior to the directive, such bribes were also commonplace, but usually only amounted to 500-2,000 shillings. There have been at least three allegations of rape made by refugees against members of the security services since the directive was issued. Refugees also stated that identity documents issued to them by UNHCR and by the Kenyan government are being disregarded, confiscated, or destroyed by the security services, stripping them of vital legal protections. In fact, several refugees told RI that they feel as though they have no international protection now, and are only protected by the bribes they pay to police.

Most observers believe that Kenya’s large Somali refugee community is the intended target of these new measures. However, they are having a negative impact on refugees of all nationalities in Kenya, who currently face rising xenophobia. RI heard stories of Congolese being forced off of minibuses by operators who said the refugees were “not supposed to be in Kenya” any more. Kenyan citizens of Somali descent also are reportedly facing increased ethnic discrimination.

Since the directive, the government has stopped registering new refugee arrivals in urban areas. This step actually undermines one of the directive’s stated goals: improved security. The government has cited security concerns over a recent series of attacks in Nairobi as a justification for the directive. And while it is wholly unjustified for the government to assign collective responsibility for the attacks to the entire refugee population, it should be noted that urban registration would give the government and UNHCR a means of identifying those refugees who pose a security risk.

The directive also prohibits the provision of assistance to urban refugees, and some agencies have scaled back services because of concerns that their staff (and the refugees they serve) might be harassed by the security services. RI was told by refugee community leaders that they had been
targeted by the security services for trying to stop the harassment of other refugees. One man who tried to intervene in such a situation told RI that he was arrested on a false charge.

This hostile and dangerous environment has forced many refugees with sufficient resources to leave Nairobi for other areas in Kenya, to flee to neighboring countries, or to return home. Those without means told RI that they had effectively been living in hiding since the directive. Many refugee children no longer attend school, and refugee community welfare groups are too frightened to hold meetings. Further, many refugees fear that their communities will be targeted if Kenya’s upcoming elections lead to violence. The international community and Kenyan institutions must include the potential for violence against refugees in their election contingency planning.

Global Urban Refugee Policy Under Threat

The Kenyan government argues that it has always retained the right to determine where refugees should live, and it maintains that encampment has been its policy since camps were established in the early 1990s. However, in practice, Kenya has applied this policy very flexibly and selectively. When UNHCR announced its new global urban refugee policy in 2009, Nairobi was selected as one of six pilot cities. In recent years, Kenya has made great progress in enabling urban refugees to achieve self-sufficiency. Among other accomplishments, over 55,000 refugees were officially registered in the nation’s cities, the government started its own urban refugee registration process, and the government issued official refugee documents to urban refugees. In 2011, Kenya’s Department of Refugee Affairs began opening registration offices in four cities (in addition to the office already in Nairobi). In cooperation with schools and hospitals, key services were extended to urban refugees. Small businesses run by refugees also received support. All of these things demonstrated a willingness on the part of Kenya to accept a central tenet of UNHCR’s 2009 global urban refugee policy, “that cities are recognized as legitimate places for refugees to reside and exercise the rights to which they are entitled.” Unfortunately, the directive has seriously
undermined the implementation of urban refugee programs in Kenya.

In response to the directive, UNHCR has focused on maintaining a good working relationship with the government in an attempt to stave off the “worst case scenario” of a militarized round-up of refugees. UNHCR has publicly stated that it will not support the forcible transfer of populations to the camps, but it has also said that it “is sustaining its efforts with the government to ensure that in any implementation of the new directive, refugees and asylum-seekers would not be put in harm’s way or their vital protection and human rights transgressed.” UNHCR is stating that it will support “voluntary” relocation in a “humane” manner. However, RI questions whether refugees’ decisions to relocate can be considered voluntary in the current context. During its visit to Nairobi, the RI team did not meet any refugees who were willing to relocate voluntarily.

While UNHCR must leverage its engagement with the Kenyan government, it must not compromise its defense of the international principles of refugee rights, including the right to freedom of movement and choice of residence. It must vigorously stand up for its urban refugee policy. By failing to publicly oppose the basic premise of the government’s directive, and instead focusing on how to carry out the directive in a humane way, UNHCR and donors to UNHCR’s work in Kenya have given the impression that they accept the legality of Kenya’s policy. Indeed, despite its “serious concerns” about the policy, UNHCR has joined a government-run task force to plan implementation of the directive.

Many refugees told RI they were disappointed that the UNHCR was not standing up for their rights. As a Kenyan lawyer pointed out to RI, “You can’t restrict a person’s freedom of movement or deny their livelihood in a humane way.”

On January 19, a letter from the Ministry of Provincial Administration and Internal Security was leaked to the media. It stated that the government intended to round up 18,000 refugees and hold them in Thika Municipal Stadium before moving them into camps. To date, it has yet to be implemented.

Kenya is a party to the 1951 Convention Relating to the Status of Refugees, which accords to refugees “the right to choose their place of residence and to move freely.” Further, Kenya’s own constitution states that “Every person has the right to freedom of movement.” The constitution also brings ratified international conventions into Kenyan law, as does Kenya’s 2006 Refugee Act. On this and several other constitutional grounds, Kituo Cha Sheria, a Kenyan NGO and implementing partner of UNHCR, obtained an injunction in the Kenyan High Court against the implementation of the government’s directive. On January 23, the High Court of Kenya issued its first interim court order against the directive.

Since the end of January, abuses by security services have reduced somewhat. However, a great deal of damage has already been done. Urban refugee registration has not re-opened, and the eventual outcome of the court case is still uncertain. It is  very positive that UNHCR has decided to lodge a brief in support of Kituo Cha Sheria’s petition, as this will provide an opportunity for UNHCR to clarify the principles of its mandate and to vigorously defend its urban refugee policy, which risks being undermined globally. If Kenya’s directive is implemented, with UNHCR’s assistance or acquiescence, then other host governments may well decide to replicate it.

Beyond the need to defend basic refugee rights principles, there is also an urgent need for UNHCR to protect those refugees already impacted by the directive. Protection monitoring, as well as legal and other assistance for refugees currently in place, are not stemming the daily harassment and extortion faced by urban refugees. Given the current context, UNHCR and its implementing partners should allocate greater resources for protection monitoring, and UNHCR’s presence in the affected urban areas should be enhanced. This would lead to increased reporting of abuses and enable interventions to assist victims of illegal arrest or extortion.

Deteriorating Conditions in Dadaab

The directive requires that all Somali refugees leave urban areas and report to the Dadaab camps, while those refugees of other nationalities must report to Kakuma camp. The RI team visited Dadaab in late January to assess existing conditions and the potential impact of the arrival of tens of thousands of urban refugees.

Dadaab has long been overcrowded and under-resourced. In June 2011, the European Court of Human Rights found the conditions in Dadaab to be in breach of Article 3 of the European Convention on Human Rights on cruel and inhuman treatment. Since that case, armed conflict in Somalia and the 2011 famine have driven an additional 150,000 Somalis into the camps, bringing the total refugee population to nearly half a million. For 2013, the UNHCR’s assessment of actual humanitarian needs for Dadaab stands at $143.9 million. However, because of a lack of resources, its current operating budget is only $36.5 million. International financing for the camp has been slashed by nearly half since last year, forcing a reduction in implementing partners (from 21 to 15) and cuts in services. Over the past year, insecurity in the camps increased in the form of targeted killings, looting, police abuse, kidnappings of aid staff, and improvised explosive devices.

UNHCR and aid agencies in Dadaab are unprepared to cope with a further influx of refugees. Adding tens of thousands of new refugees from urban areas could require tens of millions of additional dollars to establish additional services such as health facilities, schools, and food distribution points. Many of the refugees who would be targeted for relocation have been self-sufficient until now, and they have not required anything like this level of outside assistance. RI’s team met a Somali man who had “chosen” to move to Dadaab from Nairobi after suffering serious police violence, despite the fact that he had a job in the city. After arriving in Dadaab, he was given a plot, a tent, and a food ration card.

The Kenyan government specifically identified Dadaab’s Kambioos settlement as the location for new arrivals from the cities. Although Kambioos is not as insecure as other Dadaab settlements, services and living conditions there are unacceptable. Many of the 18,000 refugees there have been living for 18 months in tents that were designed to last six months. Educational services are inadequate, and no secondary education is available. Refugees currently living in Kambioos expressed concern about how urban refugees would adjust if relocated there. For example, some female residents wondered how women from the cities would cope with a new life that includes collecting firewood from the bush.

Prior to the announcement of the directive, the government did not recognize Kambioos as an “official” settlement. Therefore, it does not have a food distribution point, a police post, a hospital, or a formal market. At present, Kambioos residents must travel to the Hagadera settlement to receive food and go to market, and women have been raped en route. In order to accommodate refugees coming from cities, in January Kenya formally recognized the Kambioos camp, thereby authorizing desperately needed services. UNHCR and the government are now in the process of establishing a police post and setting up a food distribution point there.

UNHCR is currently in the process of relocating refugees living on the outskirts of the Hagadera settlement to Kambioos, where there is additional space. If urban refugees start to arrive at Kambioos, UNHCR must seek new resources rather than divert funds intended for the relocation of other refugees.

Forced Returns Are Illegal and Pose Risks to Returnees’ Lives

The right of a refugee not to be forced to return to the place from which they fled while danger persists (non-refoulement) is fundamental to refugee protection. However, Kenya’s leaked “Thika Stadium” letter of January indicates that the transfer of refugees from urban areas to camps is the first step towards repatriating all refugees. The international community – in particular UNHCR and key donors such as the United States, United Kingdom, and the European Union – must oppose any forced repatriation efforts by Kenya. Further, the international community must publicly declare that creating conditions so hostile to the well-being of refugees that they flee in fear back to their countries of origin is tantamount to refoulement, and is as unacceptable as rounding-up and transporting refugees across the border.

As stability continues to improve in parts of Somalia (such as Mogadishu), hundreds of refugees are returning to the country every day. However, Al Shabab militants continue to pose a threat to many parts of the country, particularly the south-central region. In interviews with urban refugees in Nairobi, RI was told of many recent instances of returnees facing serious danger in Somalia. For example, one woman told RI that her brother returned to Somalia in January because of police harassment in Nairobi. When he returned, he was beheaded by militants who suspected he was spying on behalf of Kenya. Refugees who work and volunteer for Nairobi-based civil society organizations said they fear returning to Somalia because Al Shabab would perceive them as traitors. Somali journalists also continue to face an alarming rate of targeted assassinations within Somalia. RI met two Somali journalists now living in Nairobi who rarely leave their cramped apartments for fear of being harassed by the police, or even tracked down by those they fled in Somalia.

Planned returns that are voluntary, safe, and preserve the dignity of every refugee remain an essential part of any solution to Kenya’s protracted refugee crisis. Coercing Somali refugees to return by creating hostile conditions in Kenya undermines the basic principles of refugee protection.

Melanie Teff and Mark Yarnell assessed the humanitarian situation for Somali refugees in Kenya in January 2013.