Lessons and Recommendations for Implementing Kenya’s New Refugee Law

By Abdullahi Boru Halakhe , Samson Omondi | August 1, 2024

Executive Summary

The shift of Kenya’s refugee law and practice away from decades of encampment towards socio-economic integration of refugees through settlement is a positive step at a time when many countries are adopting restrictive postures toward refugees. However, for refugees to draw full benefit from the changed law, plans, and practices, the Kenyan government should develop a comprehensive refugee policy that will articulate what constitutes refugeehood, the practical application of the law, and the broader vision of sustainably addressing the decades-long encampment. The central plank of policy should be elevating the Department of Refugee Services (DRS) into an autonomous outfit with the requisite resources to fulfill its functions, including coordination across governments and external humanitarian actors. Fully implementing the refugee law requires significant, sustained funding and technical expertise. Donors should step into funding it and establish robust accountability and oversight mechanisms to ensure funds are used prudently and for the specific purposes assigned.

Before embracing the encampment policy following the outbreak of Somalia’s civil war in 1991, Kenya afforded refugees—albeit few to start with—freedom of movement and the right to work and own property. Subsequently, Kenya claimed that the security imperative dictated the switch to encampment policy. In conjunction with the UN Refugee Agency (UNHCR), the government temporarily established the Daadab and Kakuma Refugee Camps in 1991 and 1992, respectively. Over the last two decades, the number of camps has increased because of conflicts in neighboring countries. However, donor funding is declining, making it challenging to sustain the camps’ care and maintenance.

Safe and dignified return to the country of origin, integration in the host country, and resettlement in a third country are the primary durable solutions to refugee crises. Of the three, the protracted nature of conflicts often stymies safe return – displacement lasts 20 years on average for refugees and more than 10 years for most internally displaced people (IDPs). Less than one percent of refugees are resettled in third countries, mainly in the West, and nationalistic sentiments are curtailing this pathway for refugees, which leaves reintegration in the host country as the primary remaining policy option.

Kenya’s Refugee Act and plans pursue integration by granting refugees the right to work, freedom of movement in a designated area, and the right to own property. Additionally, refugees will be included in the subnational county government’s development plan to access education and other government services, including health. Should they choose, the law also allows refugees to take up East African Community (EAC) citizenship¹ upon giving up their refugee status. As East African citizens, refugees will enjoy all citizens’ rights in all member countries, including the right to work, freedom of movement, and the right to own property.

Pivoting away from encampment and embracing local integration gives refugees agency. Unlike in the camps, where they rely on aid, refugees contribute to their and host communities’ socioeconomic development through local integration. However, this is not the first time integration has been proposed as a package of policy solutions to displacement—and it has a mixed record.

Despite pursuing an integration approach away from encampment, Kenya’s new refugee posture has two principal gaps. The first is how the law has been crafted; it is vague in crucial areas like land which are directly linked to livelihood. Freedom of movement is circumscribed. Refugees have to endure significant bureaucratic barriers to owning property under the law. The second gap is governance structures. Chief among them, the Department of Refugee Affairs’ capacity to deliver on the law is, at best, minimal; the regulation to govern the transition does not even mention integration, and the Shirika Plan—a UNHCR project that would turn some refugee camps in Kenya into more integrated settlements— has been at work for some time now and has not yet been published. Further, plans in Kenya for the socio-economic integration of refugees fall short of full integration because they do not offer legal integration, which includes assimilation and naturalization.

Despite the gaps, Kenya’s new refugee law and regulations are a significant and welcome step towards a durable solution to the protracted refugee situation in Kenya. Some gaps, especially regarding coordination, can be resolved through a comprehensive refugee policy articulating Ministries, Departments, and Agencies (MDAs) powers, functions, and roles. Authorities should harmonize the laws and coordinate them across the two levels of government and external actors working on refugee affairs. Some aspects of implementing the law will require substantial and sustained funding due to decades of neglect and poor infrastructure in the refugee-hosting regions. Donors can help in funding these projects.

Recommendations

To the Cabinet Secretary for Interior and National Administration of Kenya:

Draft a comprehensive Refugee Management Policy that will provide institutional, legal, and administrative clarity, including coordination between/among the Ministries, Departments, and Agencies. The policy should clarify coordination and the roles of the national and county governments, donors, and outside humanitarian actors. The policy will address some gaps, some of which were because the law was passed before the policy.
Elevate the Department of Refugee Affairs into a semi-autonomous government agency (SAGA) through a Cabinet Memo with direct funding from the exchequer to match its functions under the Refugee Act 2021. This would allow the department to dispense its responsibilities and prevent it from depending on actors like UNHCR funding to run its core functions. Currently, UNHCR covers a significant amount of the Department of Refugee Services’ budget.
Audit all the laws, institutions, and subsidiary legislations affected by or affecting the Refugee Act 2021 to ensure they are streamlined and not in conflict. The law touches on over two dozen pieces of legislation, including land, registration, and Know Your Customer laws. Auditing and streamlining the regulations will help ensure a smooth transition.
Issue a single, harmonized refugee identification document rather than the current situation where refugees require multiple forms of documentation to seek travel and access services. Ensure the identity is consistent across government systems to ease refugees’ access to services and reduce the risk of identity fraud.
Develop a communications strategy to regularly update partners at all levels, including refugee and host communities and Nairobi-based stakeholders. An overall objective would be to broaden and sustain stakeholder engagement and mobilization of support. The Ministry should work directly with the refugee-hosting counties to own and directly support refugees, including sharing resources and including them in decision-making of refugee affairs at the county level.

To the Kenyan Department of Refugee Services:

Resume the refugee registration process suspended in 2016 and clear the backlog of 100,000 unregistered refugees so they can receive humanitarian aid while in the camps and enjoy the benefits of the new refugee law. As long as they remain unregistered, they cannot receive humanitarian aid and support.
Embark on an extensive public information campaign on refugee law nationwide, especially at the subnational governmental and country levels where the refugees are hosted, including the urban refugees already outside the Kakuma and Daadab Refugee Camps. The county government is a central pillar in implementing the law, but only a few county officials are sufficiently familiar with it, including the rights of the refugees.
Once elevated to a Semi-Autonomous Government Agency, undertake recruitment of personnel with requisite skills and competencies to manage the department’s affairs, including taking over some of the UNHCR’s role and implementing other aspects of the Refugee Act. However, UNHCR should retain critical refugee protection functions for specific classes of refugees who need them.

To International Donors:

Provide sustained, flexible funding to support Kenya’s implementation of the new refugee law, particularly considering that the places where the refugee camps are located need more investment because of their previous history of marginalization. Donors should increase the levels of refugee funding and send the largest share of the fund to government authorities, such as the Department of Refugee Affairs, county governments, and local humanitarian groups, with a smaller portion of the funding sent to the major international humanitarian groups.
The Department of Refugee Services and county governments in urban and rural refugee-hosting counties should be the primary funding recipients to enhance their technical and governance capacities and understand their international humanitarian obligation regarding refugees.
Ensure prudent funding management by streamlining and coordinating refugee funding to avoid wastage and duplication. Robust accountability mechanisms should follow the streamlining of the funding so that money is spent only on the activities and projects for which they are budgeted.

To the UN Refugee Agency (UNHCR):

Offer training to Department of Refugee Affairs officers and county authorities on refugee protections in line with the Refugee Act and international refugee and humanitarian standards as they transition into taking complete charge of all refugee issues.
Once the Shirika Plan is launched, limit their role to advisory, not operational, and let the Department of Refugee Affairs take the lead in all refugee matters, except in cases where their expertise is requested.
Support the Department of Refugee Affairs and the national and county governments in developing a refugee protection protocol, especially for political asylees who could face prosecution.
Help develop a protection framework for refugees who want to relinquish their refugee status to acquire Eastern African citizenship, as well as the potential dangers involved, including the lack of refugee protection.

Methodology

This report is based on the field interviews conducted in March 2024 by Refugees International and the Kenya National Human Rights Commission. The teams interviewed refugees, refugee leaders, the World Bank, UN and other humanitarian agencies, Kenyan authorities, refugee law, livelihood, and urbanization experts in Nairobi, Kakuma, and Daadab.

A mother and her child at Kakuma Refugee Camp in Turkana County during World Refugee Day, July 21, 2024. Photo by Harriet Ajimabo.

The Evolution of Kenya’s Refugee Policy

Kenya’s relative political stability in a region bedeviled by ongoing conflict has made the country a host for refugees for decades. During this period, Kenya’s refugee policy has evolved in three phases.

A focus on integration characterized the first phase, which began in the early post-independence stage, when the number of refugees was around 5,000 to 20,000, predominantly from Uganda and Ethiopia following civil wars in those countries. During this period, Kenya did not have a specific refugee law, policy, state institution, or agency overseeing refugees. Instead, it managed refugees under the Immigration Act of 1967 and the Aliens Restriction Act of 1973. During this period, refugees were given entry permits and had the right to work in Kenya because authorities primarily viewed them as individuals seeking economic opportunity.

The second phase marked a shift towards encampment as the central policy paradigm for managing refugee populations. This phase commenced in 1991 following the outbreak of the Somali and Ethiopian civil wars, which led to thousands of refugees crossing the border into Kenya. Due to the overwhelming number of refugees and the government’s lack of capacity and expertise, it entrusted refugee management to UNHCR, which led to the establishment of the Daadab refugee camp in 1991 and the Kakuma refugee camp in 1992. As of May 31, 2024, the population of registered refugees in the Dadaab refugee camps in Kenya was 382,658, and Kakuma hosted 288,206 during a similar period because Kenyan authorities stopped refugee registration, except on an ad-hoc basis, with at least 100,000 unregistered refugees.

Security was the overriding consideration that guided the Kenyan government’s approach towards refugees throughout this period. Kenya only accepted the establishment of the camps as long as they were at the Kenya-Somalia border; President Daniel Arap Moi “grudgingly allowed Somali refugees into Kenya on the condition that they reside in border camps.” Less than a week after President Moi won the Kenyan election in December 1992, he announced that refugees would be sent back to Somalia immediately. Moi’s threat of closure inaugurated the cycles of closure and the threat of closure of refugee camps by the Kenyan authorities in 1992, 2016, 2019, and 2021.

The standard principal claim during these periods was that the camps, especially Daadab, were a national security threat, which fits into the broader views authorities have towards the Somali population. The government’s stance was further bolstered by the emergence of Al Shabaab, a Somalia-based Islamist group in the mid-2000s, further reinforcing the government’s securitization of the refugee response. The closure was also designed to secure more funding. Occasionally, the courts stepped in to prevent the closure. In February 2017, the Kenyan High Court ruled that Kenya’s refugee camp closure order was “illegal, discriminatory and therefore unconstitutional.” The court also described the orders as “arbitrary, discriminatory and indignifying.”

This phase was finally codified by the passage of the Refugee Act in December 2006, which came into effect in May 2007. The Act also marked Kenya’s first substantive, unified refugee legislation. The law codified the encampment policy and created state institutions working on refugees. The Act established the Department of Refugee Affairs, the Refugee Affairs Board, and the Refugee Affairs Committee.

Hybrid camps or settlements characterize the third phase of Kenya’s refugee law and policy evolution. The genesis of Kenya’s new refugee posture was the shift in global dialogue following the 2015 European refugee “crisis” and leading to the New York Declaration for Refugees and Migrants, which was adopted on September 19, 2016. The Declaration outlines steps for developing a Comprehensive Refugee Response Framework and a Global Compact on Migration, adopted on December 10, 2018. These steps were heralded as a “milestone of global solidarity.” Under the Compact, signatory countries recognize the need to ‘ease the burden’ on host nations while acknowledging the potential economic benefits of hosting refugees. On December 17, 2018, the United Nations General Assembly affirmed the Global Compact on Refugeesaffirmed the Global Compact on Refugees, which offered a framework for more “predictable and equitable responsibility-sharing, recognizing that a sustainable solution to refugee situations.”

Kenya was one of the pilot countries for the new refugee and migration framework.In March 2017, Kenya hosted the Inter-Governmental Authority on Development (IGAD) Special Summit on Somali refugees to operationalize the New York Declaration. The Summit produced the Nairobi Declaration on Durable Solutions for Somali Refugees and Reintegration of Returnees in Somalia (The Nairobi Declaration).

The Nairobi Declaration proposed “accelerating solutions in Somalia by creating an environment conducive for voluntary and sustainable returns; delivering durable solutions while maintaining protection and asylum space, and promoting the self-reliance and inclusion of refugees in countries of asylum.” Kenya formally adopted the Comprehensive Refugee Response Framework (CRRF) in October 2017.

Self-reliance, Integration, and Durable Solutions

The United Nations High Commissioner for Refugees (UNHCR) defines self-reliance as “the social and economic ability of an individual, a household or a community to meet essential needs (including protection, food, water, shelter, personal safety, health, and education) in a sustainable manner and with dignity.”

The move towards self-reliance for refugees through reintegration is at the core of Kenya’s refugee law and policy shift. The refugee integration process includes the host communities, considering the refugee camps are located in marginalized areas of Kenya. As such, focusing on refugees at the exclusion of the local community could lead to tension between the community and refugees.

Voluntary return, local integration, or resettlement are the three primary standard durable solutions to displacement. However, returning to one’s country of origin is becoming difficult, as the average duration of protracted displacement is estimated to be between 10 and 20 years. For instance, Somalia has not had a stable government since the collapse of the Siad Barre regime in 1991. As a response to the Somali refugees coming into Kenya, the collapse of the Ethiopian government in 1991, and the fighting in South Sudan, with the help of the UNHCR, Kenya established the Daadab Refugee Camp in 1991. Since then, Kenya has retained a refugee encampment policy that requires significant resources in care and maintenance.As part of the refugee solution, integration through settlement has existed for some time. Early post-independence African countries had a relatively tolerant attitude towards refugees. In part, the assumption was that refugees were a product of the wars of independence. However, towards the end of the 1970s, it became clear that the internecine Cold War proxy civil wars were the primary driver of refugees, not, as initially assumed, the anti-colonial war. As part of the solution to the refugee crisis in Africa, two conferences, the International Conferences on Assistance to Refugees in Africa (ICARA I), were held in Geneva in April 1981, and ICARA II was held in July 1984. The conference recognized refugees’ self-sufficiency through resettlement as part of the durable solution package.

However, integration settlements as a pathway to self-sufficiency have a patchy record. According to refugee self-reliance expert Evan Easton-Calabria, “Out of the 117 settlements established in Africa, UNHCR declared only 30 self-sufficient between 1966 and 1982. Of these, 21 received renewed aid in this period, and eight enough aid to make their true self-sufficiency debatable.” Despite refugee resettlement’s poor delivery record, it is still a central plank of Kenya’s durable solutions. Furthermore, integration through establishing refugee settlements, as currently articulated in law and practice, has specific gaps that, unless addressed, prevent the law and policy from delivering for refugees.

The Kenyan authorities state that the policy shift was to ensure Kenya’s refugee law was in line with the international normative refugee standard arising from the Refugee and Migration Compact and other regional declarations and agreements. However, many interviewees said the anticipated donor funding drove Kenya’s changes. As of December 2022, Kenya is one of 15 African countries that have received funding from the World Bank’s Window for Host Communities and Refugees (WHR). The window was launched in 2016 as part of the International Development Association’s (IDA) 18th Replenishment.

Camps and Settlements

The enduring protracted encampment policy with limited pathways was unlikely to resolve the refugee crisis. With the help of donors and UNHCR, Kenya has turned to integration through socio-economic programs in Garissa, where the Daadab refugee complex is located, and Turkana, where the Kakuma refugee camps are located. The plan involves turning the camps into settlements.

The Kalobeyei Integrated Socio-economic Development Programme (KISEDEP), developed in 2018 for refugees in the Kakuma refugee camps, and the Garissa Integrated Socio-Economic Development Plan (GISEDEP), created in 2023 for refugees living in Daadab refugee camps, are the vehicles designed to deliver on settlement. GISEDEP and KISEDEP are premised on creating a settlement promoting the self-reliance of refugees and host communities by enhancing livelihood opportunities and inclusive national service delivery in addition to KISEDEP and GISEDEP.

Kenya passed the Refugee Act 2021 and published a regulation to implement it in 2024. Kenya and UNHCR are also developing a Shirika Plan to transform refugee camps into integrated settlements that support the socioeconomic inclusion of refugees and host communities in Garissa, Turkana, and urban areas. The end state of this phase is that the refugees will eventually stop relying on aid and become self-sufficient through the whole-of-society approach that includes refugees and host communities.

UNHCR is a central player in the development of KISEDEP, which is also aligned with the UNHCR Kenya office’s 2023-2026 strategic objectives, which include promoting an enabling environment for the socio-economic integration of refugees and asylum seekers.

To offer empirical heft to the shift, UNHCR, the World Bank, and the International Finance Corporation—a member of the World Bank Group and the largest global development institution focused exclusively on the private sector in developing countries—conducted studies to make the case for refugees’ social-economic integration. A 2016 World Bank study on Kakuma, among others, found refugees’ presence boosts Turkana’s “Gross Regional Product (GRP) by over 3 percent, income per “local” person increases by 0.5 percent, and total employment increases by about 3 percent.” Additionally, in a 2018 study, the International Finance Corporation (IFC) found that Kakuma has a market size of $56.2 million.

However, Kenya’s refugee reintegration has two outstanding gaps: one, the Kenyan government, UNHCR, and donors are pursuing a narrow definition of reintegration—just social and economic integration—and not a full integration that will include the refugees’ assimilation and naturalization. While social-economic integration is an improvement over the existing discredited Kenya’s encampment policy, a better option than the anti-refugee and migration settlement, especially in the West, it still falls short of full integration. According to the 1951 Refugee Convention, Article 34 full integration assimilation and naturalization.

One of the refugees interviewed by Refugee International and Kenya Human Rights Commission said, “I do not feel like I have fully integrated because we still experience various challenges that we should not have been experiencing, such as the lack of good roads in the camp, lack of electricity, and being subjected to paying taxes. I was partially involved in coming up with the program.”

A South Sudanese refugee interviewed by Refugees International and Kenya National Human Rights Commission offered a contrasting view:

“I was involved through public meetings in developing the first KISEDEP. I am also the leader at Kalobeyei Two, and the plan has helped us a lot since we can sell items to the Turkana Community and buy from them. We have also gotten water and firewood from the Turkana Community without conflict. Conflict among the communities living in Kalobeyei has also reduced. Some Sudanese have also been able to marry from the Turkana Community. We also share market stalls due to the KISEDEP project, which has constructed community markets. Youths from the host community and refugees in Kalobeyei can do sporting activities together.”

Furthermore, even the limited integration, which focuses on social-economic integration, faces headwinds. Northern Kenya, where Kakuma and Dadaab refugee camps are located, scores poorly on almost all the development indices. For instance, Turkana is Kenya’s poorest county. According to the National Statistics Office, 88 percent of the people in Turkana live below the poverty level, compared with 45 percent nationally. In Garissa, 68 percent of the population is classified as poor, and only 32 percent has access to safe water.

Therefore, the socioeconomic integration of refugees in regions where the population is already dealing with myriad deep-rooted historic socio-economic marginalization will be an uphill task unless the donors invest significantly in infrastructure, human capital, and technology. Additionally, the notion that the private sector is an engine for reversing the region’s profound economic marginalization, and thus the fate of the refugees with it, is far-fetched because of structural challenges. For instance, according to the Turkana County Electrification Status, “only two percent of its 142,864 households have access to electricity.” Having an industrial base huge enough to foster a massive economic boost requires electricity, but this level of connection is inadequate.

A joint UNHCR-Danish International Development Agency evaluation of KISEDEP stated, “Turkana is a particularly challenging environment for business and entrepreneurship given its remoteness, limited resources, poor communications, and weak internal market. Decades of development assistance have done little to transform the situation.” Additionally, some of KISEDEP’s donor financial commitment in phase one has not materialized. Without sustained, flexible funding, KISDEP’s objectives will remain unfulfilled.

Two, even the narrow social-economic integration approach faces multiple challenges, with the land tenure question as the principal one. The Kakuma and Daadab refugee camps are in Kenya’s Northwestern and Eastern parts, where land in both counties is managed through the Community Lands Act. County governments are the custodians of the community land. However, managing refugees is a national government’s function via the DRS. However, the national government manages different aspects of the land; therefore, there is a need to reconcile the two levels of government powers and authorities and, more importantly, separate land laws.

The lack of clarity regarding land tenure and land use is KISEDEP/GISEDEP’s blind spot, and its impact is already visible. One refugee financial inclusion expert interviewed by Refugees International and Kenya National Human Rights Commission said they pulled out of a prefab housing project for refugees purely because of the lack of clarity regarding refugee land tenure. An urban planning expert said, “From the camp to the settlement” is an empty rhetoric if not backed by a coherent legal policy or governance architecture on land.

KISEDEP’s challenges offer a cautionary tale for Garissa County, which inaugurated a similar plan in 2013, the Garissa Integrated Socio-Economic Development Plan (2013 GISEDP). As a refugee-hosting county with identical climatic and socioeconomic characteristics, it could learn and avoid some of KISEDEP’s challenges.

Registration is the first critical step in realizing refugees’ rights, including protection and access to social-economic benefits, which underpin many of Kenya’s new refugee policies. It is also the first point at which refugees interact with Kenyan authorities and non-state agencies, including the UNHCR.

A refugee shelter at the Kakuma Refugee camp in Turkana County. Photo by Harriet Ajimabo.

Registration and Identification

Unregistered refugees need to be registered to achieve the benefits of the new refugee legal environment. Those registered will also require new layers of identity. Registration is the first critical step in realizing refugees’ rights, including protection and access to social-economic benefits, which underpin many of Kenya’s new refugee policies. It is also the first point at which refugees interact with Kenyan authorities and non-state agencies, including the UNHCR.

However, registration and refugee status determination remains one of the enduring sore points for refugees in Daadab or Kakuma refugee camps and those urban areas. While on the surface, the two processes sound like mundane, bureaucratic exercises, they have a significant bearing on refugees’ lives, livelihoods, and well-being.

A lack of legal identity adds a new dimension to their challenges. A lack of identity documents significantly “increases the vulnerability of those who have been forcibly displaced, whether in their own country or across international borders.” In some instances, lack of identification may be “both a consequence and cause of forced displacement. Because documents are “lost or destroyed as a result of the conflict or disaster that force people to flee their homes, or during arduous journeys to a new country.”

Lack of registration for many refugees means they will not receive protection and aid to survive in the camp. As a result, many have resorted to sharing their little rations with fellow registered refugees. To receive specialized medical treatment outside the camp, refugees need a pass, and unregistered refugees will not receive a pass. The need for registration also impacts school enrolment. Some refugees hold both mandate certificates and alien cards, others have one, and some have neither.

While registration and Refugee Status Determination (RSD) can be conducted simultaneously, registration precedes the RSD, and refugees can obtain some form of recognition while waiting for the RSD. In Kenya, the UNHCR and the government work together on registration and conducting the RSD process.

The two principal documents for registration as a refugee are the UNHCR mandate refugee certificates (“mandate certificates”) and government “alien cards.” According to the NRC, a mandate certificate (usually on a family basis) “means that UNHCR has recognized them as refugees. If a refugee holds an alien card (issued individually), the Government of Kenya has recognized them as refugees.”

However, acquiring these documents is arduous for refugees due to diverse legal, bureaucratic, and practical obstacles. Some challenges include “unaffordable costs, lack of information about procedures, and discrimination based in law or social practices.” One Somali refugee Refugees International interviewed said the police view refugees, especially Somali ones, as an easy target for extortion, even when they have all their documents. A rich history of violations has characterized the interaction between the Somali refugees and the Kenyan police. Still, the emergence of Al Shabaab has heightened the security agencies’ suspicion of Somali refugees. Agencies view almost all Somalis as Al Shabaab, or at least treat them as such.

Kenya’s order to close the refugee camps in 2016 also stopped refugee registration except in an ad hoc stop-and-start fashion, leading to a backlog of 100,000 refugees. A refugee expert in Nairobi said the backlog number is higher than 100,000. The expert further added that if indeed Kenya views the refugees as a security threat, having more than 100,000 unregistered refugees whose identities have yet to be established poses a more massive security threat than registered refugees. Apart from urban refugee documentation, refugees may hold (or have held) other documents that relate to their legal status in some way, such as “waiting” documents that indicate the refugee is waiting for urban refugee documentation to be issued or renewed.

Registration and documentation, closely aligned with the lack of freedom of movement under the encampment, limit refugees’ access to various services, including the labor market. The Refugee Act 2021 states, “the Refugee Identity Card shall at a minimum have a similar status to the Foreign National Registration Certificate… for the purposes of accessing the rights and fulfilling obligations under this law.”

However, despite the Refugee Act, on September 19, 2023, the Cabinet Secretary of the Interior published a new gazette notice in which he announced six new documents. Such a move contradicts the spirit of the Refugee Act and makes the already arduous refugee documentation process even harder with additional paperwork, which involves more travel and expenses. Refugees require multiple documents to access services. Harmonizing refugee documentation so that a single form of identity allows refugees to register, access, and enjoy all the services the law confers on them will address this challenge. The Department of Refugee Services and the UNHCR should clear the backlog of unregistered refugees as a priority to safeguard refugees’ dignity and ensure they can access protection and other services, including food rations. Additionally, ensure that refugees only require one document to access the services they are entitled to under the Refugee Act 2021.

According to UNHCR Handbook for Registration: Procedures and Standards for Registration, Population Data Management and Documentation registration, refugee registration is “the recording, verifying, and updating of information on persons of concern to UNHCR to protect and document them and implement durable solutions.”Refugee Status Determination (RSD), according to UNHCR, “is the legal or administrative process by which governments or UNHCR determine whether a person seeking international protection is considered a refugee under international, regional or national law. RSD is often a vital process in helping refugees realize their rights under international law.”

The Refugee Act 2021

The President of Kenya assented to the Refugee Act on November 17, 2021. The law affords refugees a raft of rights not included in Kenya’s Refugee Act 2006. Under the 2021 Act, refugees have freedom of movement in the “designated area,” the right to work, rights, and property. Refugees are also integrated into its national systems, and refugee children can access free primary education. Refugees benefit from social and economic rights, including health, by registering with the National Hospital Insurance Fund, a national insurance program in the country.

As progressive as the law is, certain aspects of the act are purposely vague. For instance, the law also allows for socio-economic integration, but it is mute regarding how housing rights will be achieved. A refugee law expert who worked closely on developing the law with whom Refugees International and Kenya National Human Rights Commission spoke explained that remaining vague and silent about land and housing rights was the only way to pass because of a deep vested interest in the land question.

After economic integration, freedom of movement is the center of the Refugee Act of 2021. However, there is no clarity on how that freedom is achieved because of how the law is drafted, with the operative word being “designated area.” The law defines a Designated Area as “any reception area, transit point or settlement area as may be declared by the Cabinet Secretary.” This definition is vague, and the refugee regulation has not clarified it. A refugee livelihood expert interviewed by Refugees International and Kenya National Human Rights said that the designated area left undefined could be the camp or the county where the camp is located; in effect, this means the law is not a transition from a camp to a settlement, but rather, the expansion of the refugee camp to include the Designated Area, in effect, just another giant refugee camp.

An innovative aspect of the Refugee Act is that refugees who voluntarily give up on their refugee status to join the East African Community (EAC) are entitled to the benefits and rights of a citizen of EAC. Somalia joined the EAC in 2023, and with over half of the refugees in Kenya from Somalia, if they choose, they can be citizens of EAC, with the rights and freedom of movement, right to work, etc. However, the process of giving up on their refugee status has yet to be established. For a particular class of refugees, especially those running away from prosecution, giving up refugee status, with all the protection that comes with being a refugee, must be specified. Besides, refugees must fully understand what protection they will lose when taking up EAC citizenship. Those who, despite the limited prospect of being resettled in a third country, still would like to retain their refugee status also need to understand the consequences. Like many aspects of the new refugee regime, the nuances of the Refugee Act 2021 will benefit from a public information campaign primarily targeting the refugees and the public.

Shirika Plan

The Shirika Plan, initially called the Marshall Plan, is a granular plan to implement the Refugee Act 2021. The plan is still in development, but the draft report envisages three phases. Phase one is the transition, which is expected to take four years. Phase two is stabilization, which is also expected to take another four years. The final phase is resilience, scheduled to take at least eight years.

The plan places the DRS as the focal institution coordinating and overseeing “refugee policy and management, including developing and implementing national policies and regulations; conducting research and data for evidence-based programming; and monitoring and evaluation.” However, currently, the DRS depends on the UNHCR and donors for most of the budget. DRS’s lack of autonomy hobbled its capacity to deliver on its mandate, which hurt refugees.

During a research trip in Kenya, a refugee lawyer told Refugees International and the Kenya National Human Rights Commissions that refugee policy in Kenya has been “captured.” Donors and UNHCR have disproportionate leverage over the policy’s development and direction since they have the money and technical expertise on the matter, but this is at the expense of the government and refugees, who will be affected directly by the policy. For instance, the DRS is the primary agency in refugee affairs, per the Refugee Act. However, DRS still needs to be funded. “How can DRS, supported, even for something as minimal as a policy documentation validation workshop by UNHCR, resist any attempt by UNHCR to influence that policy’s outcomes?” asked another interviewee. The process of developing the Shirika Plan was said to be consultative. However, a refugee leader in Nairobi who spoke to Refugees International and Kenya National Human Rights Commission said that the level of refugee consultation was inadequate and superficial.

Because the plan’s development has been uncertain, start-and-stop, and expected to be launched multiple times already—including during World Refugee Day 2024—one humanitarian agency officer in Nairobi said that their organization’s 2024 Strategic Plan has yet to include any element related to the Shirika Plan engagement. Fundamentally, according to this humanitarian worker, the Shirika Plan is a “beautiful flower, but it will die soon because it is a shiny, good plan with a short life span.” Many actors, refugees, humanitarian agencies, and experts the team spoke to expressed that the process needs to be more inclusive and consultative, and the lack of that has induced detachment from people working on the refugee issues in Kenya.

Besides some humanitarian agencies working on refugees feeling left out, the other gap with the Shirika Plan is it is not anchored in the law. At this stage, the best function it could serve is to be folded as a chapter into the refugee policy.

Comprehensive Refugee Management Policy

Some gaps and incoherencies regarding the Refugee Legal, Policy, and Administration of Refugees are because the process was not correctly sequenced; the process started with the law, followed by the regulations and the Shirika Plan. Currently, Kenya still needs a comprehensive refugee management policy. Starting with the policy would have cleared some of the gaps and ambiguity in the law and the coordination across various Ministries, Departments, and Agencies (MDAs), between national and county governments, and between non-state actors. Besides, the policy will be debated and agreed upon at the cabinet level, avoiding some of the ambiguity around roles, responsibilities, and powers. However, because Kenya started with a refugee law instead of a policy, the law has some gaps. Thus, the subsequent regulations and the Shirika Plan attempt to fix those gaps, which can be fixed via comprehensive policy.

The policy’s success is principally dependent on DRS, the fulcrum around which all refugee issues revolve. The DRS needs more financial and human resources to perform its function in its current iteration. Therefore, to streamline the refugee law and policy, the Cabinet Secretary for Interior should elevate the Department of Refugee Service (DRS) through a cabinet memo or legal notice into a Semi-Autonomous Government Agency (SAGA) commensurate with the roles, functions, the refugee law assigned to the agency as the central organization overseeing refugee affairs. As part of the elevation to a SAGA, the national treasure fund should directly fund DRS. Currently, UNHCR covers a significant part of DRS’s budget, which does not bode well for its independence.

Alongside elevating the DRS to a SAGA, the policy should audit all the laws touching on or affected by the Refugee Act of 2021 to streamline the division of labor, powers, responsibilities, and coordination rather than competition between government agencies and agencies serving refugees. The law touches on over two dozen laws, from education, land, and insurance to cybersecurity and anti-terrorism laws.

Conclusion

Kenya’s new refugee law is a positive step after decades of encampment. However, how the law is crafted and how specific aspects are implemented will prevent refugees from enjoying the full benefits. The principal gap is the lack of a coordinating agency, and having a comprehensive refugee policy could address that. Implementing the law requires new institutions and working methods requiring significant investment. Donors should help fund these institutions and programs. However, they should tie that funding to robust accountability mechanisms to ensure the money is spent for its allocated purpose.

Endnotes

[1] Comprising Burundi, Kenya, Rwanda, South Sudan, Tanzania, Somalia, and Uganda.

Featured Image: A father and his daughters at Kakuma Refugee camps in Turkana during World Refugee Day, July 21, 2024. Photo by Harriet Ojiambo.