BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

UNAIDED INSIDE BORDERS: THE CASE OF IDPS IN KENYA. 1.0 INTRODUCTION.

Internally Displaced Persons (IDPs) have been defined as, persons or groups of persons who have been forced or obliged to flee or leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violation of human rights or natural or humanmade disaster, and who have not crossed an internationally recognized state border1 While we are mindful of the fact that there is no specific coherent international or regional legal regime and institution mandated to provide protection and assistance to internally displaced persons, we however delve to interrogate and critically analyze the Protocol on the Protection and Assistance to Internally Displaced Persons (2006/2008-Kampala Convention), the Guiding Principles on Internal Displacement of 1998,2 and some other main features of Kenyas New Constitution. It is argued that IDPs rights are constitutional rights and the passing of protective legislation both nationally and

internationally will enhance that position. Accordingly, (at the risk of promoting judicial activism) the Constitution and other laws must be

*1st year Law Student at Catholic University of E.A; Dip in Law (IU), Cert. in IP (WIPO); Legal researcher to Rtd.Hon Justice K.J Mulwa.
1

**4th year Law Student at Catholic University of Eastern Africa. Francis Deng, The Guiding Principles on Internal Displacements; E/CN.4/1998/53/ADD. 1, February 11. New York, NY; United Nations, New York, United Nations. See also Resolution adopted by the Human Rights Council* 14/6 Mandate of the Special Rapporteur 23rd June 2010
2

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

construed in tune with the enduring values and aspirations of the populace.3 Further International IDP Instruments are fully applicable in the Kenyan Courts and they incrementally derive constitutional force.4

2.0 BACKGROUND.
The Post Election Violence has been the most recent threat to the nation as it resulted to the death of close to 1000 people in less than two months and displaced about 400,000 others.5 The International Crisis Group described the post 2007 general elections conflict candidly thus:6 In the slums of Nairobi, Kisumu, Eldoret and Mombasa, protests and confrontations with the police rapidly turned into revenge killings targeting representatives of the political opponents ethnic base. Kikuyu, Embu and Meru were violently evicted from Luo and Luhya dominated areas, while Luo, Luhya and Kalenjin were chased from Kikuyu dominated settlements or sought refuge at police stations. Simultaneously, Kikuyu settlements, the largest migrant communities in the Rift Valley, were the primary victims of Kalenjin vigilante attacks that were reminiscent of the state-supported ethnic clashes of the mid-1990s. We are sentient to the fact that internal displacement has been an undeviating aspect of Kenya history from colonial times onwards.
See case of Rev.Timmothy Njoya & 6 Others vs. Attorney General & 3 others. Misc. Civil Application No.82 of 2004.
3 4

See Articles 2 (5 & 6); Article 21 (4) ; Article 132 (1 c iii) ; Article 132 (5). International Crisis Group, Africa Report No.137.21 February 2008 As above

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

Starting with the eviction of natives from their ancestral land to make way for settlers in colonial Kenya to recent violent evictions accompanying the 1992, 1997 and 2002 election, IDPs have been a constant feature of the countrys political landscape. The Commission of Inquiry into the Post-Election Violence, noted in its report that they were made aware that even before the 2007 General Elections there was already a problem of population displacement as a result of the following factors amongst others:
a. b.

Pre-election violence in Molo district.7 Border and land disputes in places like the Sondu which is the

confluence of three districts; Nyamira, Nyando and Kericho occupied by the Kisii, Luo and Kipsigis respectively.8
c.

Cattle

rustling

and

banditry

in

the

Pokot/Transnzoia,

Transnzoia/ Marakwet District border.

d.

Natural disasters such as drought in large parts of Northern

Kenya that often lead to conflicts over natural resources like water leading to displacement.9 On 4th February 2008, the Kenya National Dialogue and

Reconciliation mediated by H. E Kofi Annan with the Panel of Eminent African Personalities issued a statement which set out, amongst others, immediate measures to deal with the humanitarian crisis

Evidence of Rift Valley PC, Mohammed Noor. There were skirmished reported in Kuresoi Division of Molo District in August 2007 to CIPEV.
7 8

Testimony of Wilson Njega, DC Kericho to CIPEV. Testimony of Mohammed Noor. (The then was)PC of Rift Valley to CIPEV.

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

gripping the country. The statement set out the framework for dealing with displaced persons in the following terms;10 The final goal of the National Dialogue and Reconciliation is to achieve sustainable peace, stability and justice in Kenya through the rule of law and respect for human rights. 2.1 Immediate Measures to Address the Humanitarian Crisis:
a.

Assist and encourage displaced persons to go back to their

homes or other areas and to have safe passage and security throughout
b.

Provide adequate security and protection, particularly for

vulnerable groups, including women and children in the camps. c.

d.

Provision of basic services for people in displaced camps: Ensure that there is adequate food, water, sanitation and

shelter within the affected communities both those in displaced camps and those remaining in their communities.
e.

Provide medical assistance with a special focus for women,

children, and people living with HIV and AIDS and the disabled, currently in displaced camps.
f.

Ensure all children have access to education. This will involve

reconstruction of schools; encouraging return of teaching staff and provision of teaching materials, and assistance for children to return to their learning institutions.
g.

Provide information centres where the affected can get easy

access to information regarding the assistance that is available to

10

See page 282 of the CIPEV

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

them and how to access it, for example, support for reconstruction of livelihoods, or tracing of family members.
h.

Operationalise the Humanitarian Fund for Mitigation of Effects

and Resettlement of Victims of Post 2007 Election Violence expeditiously by establishing a bipartisan, multi-sectoral Board with streamlined procedures to disburse funds rapidly.
i.

The Fund is open to public contributions and all citizens and

friendly countries, governments and international institutions to donate generously.

j.

Ensure

close

linkages

with

the

ongoing

national

and

international assistance to enhance the effectiveness of delivery.

k.

Ensure that victims of violence in urban areas are not

neglected in the implementation of the above.

l.

In order to promote food security, displaced farmers should be

assisted to return to their farms. All farmers affected by the crisis should be assisted and encouraged to safely resume their farming activities.

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

3.0

THE KAMPALA CONVENTION11.

3.1 Overture. On 23rd of October 2009, the Heads of State and Government of the Members States of the African Union adopted the African Union Convention for the Protection and Assistance of Internally

Displaced Persons in Africa. The African States through the Preamble of the Convention were determined to adopt measures aimed at preventing and putting an end to the phenomenon of internal displacement by eradicating the root causes, especially persistent and recurrent conflicts which have a devastating impact on human life, peace , stability, security and development. Secondly they obligated themselves by recognizing that the inherent rights of internally displaced persons as provided for and protected in international human rights and humanitarian law as set out in the 1998 United Nations Guiding Principles on Internal Displacement, which are recognized as an important international framework for the protection of internally displaced persons. 3.2 Objectives of the Kampala Declaration. First and foremost, the Convention is supposed to promote and strengthen regional and national measures to prevent or mitigate, prohibit and eliminate root causes of internal displacement as well as provide durable solutions; secondly establish a legal framework for preventing internal displacement, and protecting and assisting
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.(Adopted by a Special Summit of the African Union held in Kampala, Uganda, on 23rd October 2009)
11

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

internally displaced persons in Africa; thirdly, establish a legal framework for solidarity, cooperation, promotion of durable solutions and mutual support between the states parties in order to combat displacement and address its consequences; fourth objective is to provide for the obligations and responsibilities of state parties, with respect to the prevention of internal

displacement and protection of and assistance, to internally displaced persons; last obligation in respect to Article 2 is to provide for the respective obligations, responsibilities and roles of armed groups, non-state actors and other relevant actors, including civil society organizations, with respect to the prevention of internal displacement and protection of, and assistance to, internally displaced persons. I opine that Kenya failed to adhere to some of these objectives by falling shot of Article 2 (b). As a state party, Kenya failed up until now to establish a legal framework for preventing internal displacement, and protecting and assisting internally displaced persons in Africa. Kenya also failed to prevent political, social, cultural and economic exclusion and marginalization factors that are likely to have caused displaced of populations by virtue of their social identity and political opinion.12

3.3 Diverse Obligations Arising from the Convention.

12

See Article 3 (1b) of the Kampala Declaration

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

There are various categories of obligations that arise in respect to the Kampala Convention. Article 3 General Obligations Relating to States Parties: asserts

state parties undertaking to respect and ensure respect for the Convention. Article 4 Obligations of State Parties relating to Protection from Internal Displacement: principally emphasizes protection from arbitrary displacement and from cruel treatment. Article 5 Obligations of States Parties relating to Protection and Assistance: primary responsibility of states to provide protection and facilitate assistance to IDPs within their territory or jurisdiction. Article 6 Obligations Relating to International Organizations and Humanitarian emphasis on Agencies/ Humanitarian Assistance; and

international

organizations

humanitarian agencies carrying out there obligations under the Convention in conformity with international law and the laws of the country in which they operate. Article 7 Protection and Assistance to IDPs in Situations of Armed Conflict; prohibitions against armed groups. Article 8 Obligations Relating to the African Union : intervene by the African Union. Article 9 Obligations Relating to Protection and Assistance during Internal Displacement: accentuate that universal rights Right to

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

(e.g., to life, liberty, security and livelihood) apply equally to the displaced persons. Article 10 Displacement by Induced Projects: put the accent on prevention of displacement by projects and

consultations of persons likely to be displaced. Article 11 Obligations relating to return, reintegration and

reinsertion IDPs making a free and informed choice. Article 12 Compensation: Help in recovering or reparation to damage incurred as a result of displacement. Article 22 Settlement between of states Disputes: will be Disputes settled and differences direct

through

consultations and in the event of failure either state may refer the matter to the African Court of Justice and Human Rights. 3.4 Conclusion on the Convention. The Kampala Declaration has provided a basic legal framework within which member states have to protect and assist internally displaced persons. The African Union has made a colossal stride in providing a basis for which African States have to come up with domestic legislation to protect their own citizens during and after displacement. Article 3 (2a) of the Convention calls on members states to incorporate their obligations under this Convention into domestic law by enacting or amending relevant legislation on the protection of and assistance to, internally displaced persons in conformity with their obligations under international law.

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

4.0 THE

GUIDING

PRINCIPLES

ON

INTERNAL

DISPLACEMENT (1998)13
4.1 Overture. Whilst adopting the Kampala Convention, the Heads of States and Governments of the Member States of the African Union recognized in the preamble of the Convention that the 1998 United Nations Guiding Principles on Internal Displacement provides an important

international framework for the protection of internally displaced persons. I concur with Judy El-Bushra and Kelly Fish in their commentary on Refugees and Internally Displaced Persons, who opine that the Guiding Principles are not binding but are based on, and consistent with, existing international legal instruments. 4.2 Overview of the Principles. There are 30 principles in the Guiding Principles and they are dived into 5 sections. Section I General Principles: affirm that the national governments and other authorities must guarantee that displaced persons have the benefit of the same rights as other citizens of the same country. Section II Principles Relating to Protection from Displacement: principally urge protection from capricious displacement and from cruel treatment.
Guiding Principles on Internal Displacement ; versions of the Guiding Principles can be found in other languages at http://www.brookings.org/fp/projects/idp/gp_page.htm.
13

10

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

Section III

Principles Relating to Protection During Displacement: accentuate that universal rights (e.g., to family life, livelihood and free association) apply equally to the displaced.

Section IV

Principles Relating to Humanitarian Assistance: provides a general idea of the tasks of national governments working in collaboration with humanitarian agencies and statutory protection bodies.

Section V

Principles

Relating

to

Return,

Resettlement

and

Reintegration: provides a general idea of the rights of IDPs to return willingly and in safety, not be

discriminated against and be helped to convalesce or be compensated for property left behind. 4.3 Conclusion on the Guiding Principles. IDPs in Kenya have been leaving in makeshift camps and some organized settlements. Conditions in these places have been

detrimental to their physical, psychological and social health. These camps have been congested, leading to public health problems and a lack of privacy. Living in such conditions for prolonged period can prevent people from maintaining associations with family members and may lead to attrition of cultural practices. The 1998 UN Guiding Principles provides for the inherent rights of internally displaced persons and acts as an important international framework for the protection of internally displaced persons.

11

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

5.0

OVERVIEW

OF

THE

KENYA

CONSTITUTION

IN

RELATION TO IDPs.14
I am persuaded by the force and logic in the case of Njoya & 6 Others vs. Attorney General & 3 others15, where the court held that the Constitution is not an Act of Parliament but the supreme law of the land. It is not to be interpreted in the same manner as an Act of Parliament. It is to be construed liberally to give effect to the values it embodies and the purpose for which its makers framed it. Similarly, I am of the opinion that Chapter Four of the New Constitution of Kenya embodies these values and principles, which must be construed broadly and teologically. Article 27 of the Constitution provides for equality and freedom from discrimination. That regardless of your status, everyone is entitled to equal treatment. Although the constitution does not expressly mention rights of internally displaced persons, (as of the cognizance that being internally displaced is not permanent situation), nonetheless, IDPs in Kenya will enjoy the same rights under the Bill of Rights as any other citizen of Kenya. To these extend, I propose that the Government of Kenya to not only put permanent policies in place under the Ministry of Special Programmes, but also to come up with a special piece of legislative

14

See www.kenyalaw.org/constitution2010. Misc. Civil Application No.82 of 2004.

15

12

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

framework that will complement and provide regulation while handling IDPs allied matters.

6.0 CONCLUSION.
The challenges facing IDPs in Kenya have led us to conclude that they are unaided citizens, within their own boarders. We are now led to ask the question; what steps can now be taken by both the
13

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

government as well as the citizens to ensure that this long overdue menace of displacement is curbed? The answers are simple but require a lot of strategy as well as cooperation. The first step that can be taken is constant monitoring involving the displaced; this can be fed into the warning systems for future conflict. Also, the government, donors and civil society should support local institutions to better do their work towards the displaced, and violence torn communities. The KNHCR should set up an IDP unit for complaints and the government should monitor those complaints and act upon them Going on, the Ministry of Justice and Constitutional Affairs should explore how to bolster legal aid and mediation mechanisms for the displaced. Proper implementation of the National task force on police reforms. Human rights and conflict prevention and resolution skills should be taught in police training colleges. So as to keep a dialogue on these issues with the police. Proper implementation of the National Land Policy will create transparency over land allocating thus turning off further grievances. Existing and past peace building programs should also be reviewed to ensure they are effectively. Finally, this mission is one that should include all people and institutions whether universities, government departments or independent donor firms all should work to eliminate the IDP situation in Kenya. This will lead to the building of a great

14

BY MUGAMBI MUHAVI P* & TEKO CHEROP S**.

nation and this unity will prevent such an occurrence from taking place again.

15