KENYATTA UNIVERSITY

SCHOOL OF LAW

PUTTING NON-REFOULEMENT AND NATIONAL SECURITY

INTO PERSPECTIVE: AN ANALYSIS OF KENYA’S INTENTION TO

SHUT DOWN DAADAB AND KAKUMA REFUGEE CAMPS.

BACKGROUND

This study addresses the consistent problem of balancing refugee interests with the

national security interests of the Kenyan Government. A starting point is at the definition of a

refugee under Kenyan law. The Constitution of Kenya 2010 (herein the Constitution), does

not define who a refugee is. However, Parliament established the Refugee Act in 2006

(herein the Refugee Act), which is the primary legislation that governs refugee matters in

Kenya. It embodies Kenya’s international humanitarian obligations towards refugees in

Kenya. This includes a responsibility in the refugee status determination process. 1 Section 3

of the Act provides guidance on who qualifies as a refugee under Kenyan law. It categorizes

refugees into two: statutory refugees and prima facie refugees.

1
[2017] eKLR
 A statutory refugee is one who meets the conditions regarding refugee status as set by

a state’s legislative body. The Kenyan refugee law defines a statutory refugee as such person

who:

a) Leaves their country and is unable to seek protection from their country of

nationality owing to a well-founded fear of being persecuted for reasons of race,

religion, sex, nationality, membership of a particular social group or political

opinion

b) b) has no nationality and leaves and cannot return to the country that was formerly

their habitual residence because of well-founded fear of being persecuted for

reasons of race, religion, sex, nationality, membership of a particular social group

or political opinion.2

On the other hand, a person is considered a prima facie refugee if they are forced to

leave their country of habitual residence and seek shelter in another country that is not their

country of origin or nationality because of external aggression, occupation, foreign

domination or events seriously disturbing public order in any part or whole of their country

of origin or nationality.3 A prima facie refugee is automatically a refugee because their

condition fulfils the objective criteria related to the hostile circumstances on their country of

origin.

2
Refugees Act 2006, s3(1)
3
Refugees Act 2006, s3(2)
 Kenya hosts both categories of refugees. The bane of this study regards the refugees in

the Kakuma and Daadab camps in Turkana and Garissa County respectively. The refugees come

from different countries, including Somalia, the Democratic Republic of Congo, South Sudan,

and Ethiopia. Both camps accumulatively hold about 427,000 refugees and asylum seekers as of

31 January 2021.4

The Kenyan Government alleges that the Al-Shabaab terrorist group use them as

hideouts and to coordinate attacks against Kenyans.5 While evidence linking Somali refugees

in the camps to recent terrorist attacks in Kenya is disputed, 6 there is no doubt Al-Shabaab is

an ever-present threat to Kenya’s security. One gruesome terrorist attack attributed to the

group was the murder of about 150 students at Garissa University in Northern Kenya. 7 The

Kenyan Government consistently associates these terrorist activities with the Somali refugee

population. Growing tension between the Kenyan and Somali government, recently brought

out in the maritime dispute at the International Court of Justice. 8 This has culminated in the

Kenyan government issuing a directive to the United Nations High Commission for Refugees

(UNHCR) to repatriate refugees from the camps. On the 24 th of March, 2021 the Cabinet

4
“Kakuma, Dadaab and Urban Monthly Operational Updates” (UNHCR Kenya)
https://www.unhcr.org/ke/monthly-kenya-operation-updates (Accessed April 1, 2021)
5
KNCHR (n 1)
6
UNHCR Kenya (n 4)
7
Kitimbo A, “Is Closing Dadaab Going to Improve Kenya's Security? - GRI” (Global Risk InsightsJune 29,
2016) https://globalriskinsights.com/2016/06/closing-dadaab-solution-kenyas-security-problems/ (Accessed
April 1, 2021)
8
Al Jazeera, “Kenya Boycotts ICJ Hearing on Somalia Sea Boundary Row” (Border Disputes News | Al
JazeeraMarch 15, 2021) https://www.aljazeera.com/news/2021/3/15/kenya-boycotts-world-court-hearing-on-
somalia-sea-boundary-row (Accessed April 1, 2021)
Secretary for Interior and Co-ordination of National Government -Mr. Fred Matiang’i-

announced that the UNHCR was given two weeks from then to draft a plan for repatriating the

refugees in both camps within four months.9

PROBLEM STATEMENT

The principle of non-refoulment forms the underpinning of refugee law. It enhances the

security and protection of refugees all over the world. The principle prohibits nations from

repatriating refugees when such action will lead to their continued suffering or harm. This

principle applies in Kenya seeing as the Kenya government hosts about 427,000 refugees and

asylum seekers within her borders.

However, the safety of refugees in Kenya is under threat. The Kenyan government

recently issued a directive for Somali refugees in the Dadaab and Kakuma Camps to vacate the

premises and return to their countries.

While Kenya has shown dedication towards upholding its international obligation

towards refugees, including by hosting them in camps and settlements, there is the pressing

need to protect her people from terrorist attacks orchestrated by alleged manipulation of the

non-refoulment principle to allow terrorists access into Kenya. This paper seeks to address the

imbalance between the principle of non-refoulment of refugees and its implications, and the

role of the government to uphold national security in exercise of Kenya’s sovereignty

9
Ombati, Cyrus. “Matiang'i Issues 14-Day Ultimatum to UNHCR on Closure of Dadaab, Kakuma Refugee
Camps.” The Star, www.the-star.co.ke/news/2021-03-24-matiangi-issues-14-day-ultimatum-to-unhcr-on-
closure-of-dadaab-kakuma-refugee-camps/. (Accessed 31 March 2021)
 RESEARCH OBJECTIVES

1. To analyse the meaning and implications of the principle of non -refoulment and the

extent it plays out in Kenya

2. To examine the extent to which refugees in Kenya pose a threat to the national security of

Kenya

3. To examine the effectiveness of legal and institutional framework of refugees in Kenya

and

4. To examine the measures that may be put in place to ameliorate the plight of refugees in

Kenya.

RESEARCH QUESTIONS

1. What is the principle of non-refoulment and how does it apply in Kenya?

2. How do refugees in Kenya pose a threat to her national security?

3. What is the effectiveness of legal and institutional framework for refugees in

Kenya?

4. What are the measures that may be put in place to ameliorate the plight of

refugees?

HYPOTHESIS

1. The presence of refugees in Kenya is as a result of Kenya’s international obligation to

uphold the principle of non-refoulment

2. The presence of refugees in Kenya poses a risk to the national security of Kenya

3. The Government of Kenya can return refugees to their countries of origin if it is proven

that they are a risk to the national security of Kenya

4. The return of refugees to their countries of origin from Kenya depends on the laws and

institutions put in place to facilitate this process

5. There are safeguards that can be put in place to protect refugees while simultaneously

upholding the national security concerns of Kenya

JUSTIFICATION OF STUDY

This study is important for several reasons. First, it will identify whether or not the

Kenyan law relating to refugees complies with international standards for the treatment of

refugees. This is an opportunity to discuss the strengths, weaknesses and lacunas in the

Kenyan refugee jurisprudence. Secondly, the research will analyze the application of the

principle of non-refoulment in Kenya and discuss whether Kenyan jurisprudence on

application of the principle demonstrates a perfect pattern of adherence to it, or whether there

is still progress to be made in terms of compliance. The study will delve into the aspects of

non-refoulment including its origin and justification to draw into its essence, and will

transpose these findings into the Kenyan situation for better insight into the refugee

movement into Kenya. Also, the study is an opportunity to explore the means by which
Kenya can apply justifiable exemptions to its compliance with the principle of non-

refoulment of refugees without drawing sharp criticism from the international community.

RESEARCH METHODOLOGY

The study is based on qualitative research and majorly employs the use of secondary

data analysis to investigate the research questions raised. This method was chosen as the

most appropriate given the availability of data, time, and the precautionary measures in light

of the ongoing pandemic which restrict movement and interaction.

Data Collection

To support the assessment of national security and refugee protection, the data

collection tool employed was reporting. This was conducted through textual and visual

analysis of secondary data such as legislations, newspaper, website, and journal articles,

books, non-governmental organization reports, and case-laws.

A literature review and a desk study were conducted, which entailed analyzing

published books, journals, articles, internet publications, field research reports on refugee

issues, government policy papers such as the Kenya Foreign Policy Documents, Acts of

parliament, United Nations High Commissioner for Refugees affairs reports and publications

from state and non-state actors such as intergovernmental organizations.

Data Analysis
 Discourse Analysis was applied when analyzing information retrieved from the

Government’s publications and official statements regarding the status of Refugees in Kenya.

Interpretive Phenomenological Analysis was applied to gain better understanding into the

circumstances that lead to a people gaining refugee status. Qualitative Content Analysis was

applied predominantly to gain understanding of what information was contained in the secondary

sources and its relevance towards answering the research questions.

THEORITICAL FRAMEWORK

The relevant theories that underpin this study are the Natural Law Theory, humanitarianism

and the sovereignty theory.

Natural law theory

Natural law is a legal theory that recognizes law and morality as interconnected.

Natural law is derived from the belief that human morality comes from nature. Morality

relates to what is right and wrong: good and bad. It advocates for the role of the law in

ensuring justice. Therefore, according to natural law theorists, a law that doesn’t provide

justice is considered not a law at all. 10 According to John Finnis who ascribed the natural law

school of thought, natural law and rights are essential for human flourishing for their role in

10
“Take Online Courses. Earn College Credit. Research Schools, Degrees & Careers” (Study.com | Take
Online Courses. Earn College Credit. Research Schools, Degrees & Careers)
https://study.com/academy/lesson/natural-law-theory-definition-ethics-examples.html (Accessed April 1,
2021)
 enhancing access to life, health, knowledge, friendship, religion and aesthetic experience.

Any action that is inconsistent with the purpose of life which is happiness is unnatural.11

Refugee law inclines towards the principle of natural justice as derived from natural

law. It takes cognizance of the idea that every person should be respected and afforded a

universal standard of treatment by virtue of them being human. John Locke echoed natural

rights to include life, liberty and property. He advocated for the free will of the people to

design their constitution and in liberty, albeit with particular regard to their appointing a

sovereign. Regardless, Locke purports that even refugees and asylum seekers are human

beings whose natural rights must be respected by any sovereign state in the principle of jus

gentes. It is from the thoughts and postulations of John Locke that the English Bill of Rights

of 1625 was crafted.12

Humanitarianism

Humanitarianism is presented as an aspect of natural law theory because of the

inherent notions that support the value of human life. Humanitarianism can be described as a

moral imperative to intervene and save lives in times of an emergency and improve human

11
Robert P. George ,’Natural law’ the American Journal of Jurisprudence, Vol. 52, Issue 1, (2007) 31.
https://academic.oup.com/ajj/article-abstract/52/1/55/195635?redirectedFrom=fulltext (Accessed 1 April 2021)
12
“John Locke” (WikipediaMarch 23, 2021) https://en.wikipedia.org/wiki/John_Locke (Accessed April 1, 2021)
conditions deteriorated by suffering.13 It also appeals to the morality or goodness of a person,

a state in this case, to remedy a situation that is bad. One component of humanitarianism is in

the enactment of new relationships.14 The movement of refugees to a new country requires

that the country and her inhabitants be cordial and empathetic towards them. A country

practices humanitarianism by accepting the refugees into her borders and resultantly creating

a relationship of support and providence to the refugees. In turn, the refugees are obligated to

adhere with the laws and customs of the host country, to maintain this relationship.

State Sovereignty

State Sovereignty supports the notion that a country can run its affairs how it deems

fit, for the benefit of her people and all stakeholders within her jurisdiction, with minimal to

no external interference by other countries or the international community. 15 This means that

the Kenyan Government cannot be forced to comply with international obligations regardless

of the binding treaty obligations resulting from ratification of Refugee Convention.

The Kenyan Government faces domestic pressure to protect the country against

Terrorism. In 2007 the Government forcibly refouled about 400 refugees from Somalia. 16 In

2017 orders were issued by the government for the return of the Somali refugee population,

13
Ticktin, Miriam. "Transnational Humanitarianism." Annual Review of Anthropology 43 (2014): 273-89.
http://www.jstor.org/stable/43049575. (Accessed 1 April 2021)
14
Labbé, Jérémie. Rethinking Humanitarianism: Adapting to 21st Century Challenges. Report. International Peace
Institute, 2012. 1-2. http://www.jstor.org/stable/resrep09610.5. (Accessed 1 April 2021)
15
Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 2
16
(n 25)
alleging that within them were terrorists who constantly attacked and threatened the security

of the Kenyan people. State sovereignty is meted as a justification for such measures which

are otherwise deemed unacceptable by the international community because of their

discriminatory and non-humanitarian undertone.

Kenya has also engaged in indirect refoulment of refugees.17 This is occasioned

through the language of the policies enacted regarding the treatment of refugees. These

policies are limiting and problematic such as those regarding their ability to seek or create

employment. They violate the rights of refugees forcing them to remain aid dependent.

Additionally, the policies don’t address the security threats faced by the refugees.

Resultantly, the goals of UNHCR for self –reliance of refugees are undermined.18

LITERATURE REVIEW

The review contains sources of information which address the research objectives

mentioned above, which are based on: the meaning and implications of the principle of

non -refoulment and the extent it plays out in Kenya; the extent to which refugees in

Kenya pose a threat to the national security of Kenya; the effectiveness of legal and

institutional framework of refugees in Kenya and; the measures that may be put in place

17
(n 14)
18
United Nations High Commissioner for Refugees, “Promoting Livelihoods and Self-Reliance: Operational
Guidance on Refugee Protection and Solutions in Urban Areas” (UNHCR)
https://www.unhcr.org/publications/operations/4eeb19f49/promoting-livelihoods-self-reliance-operational-
guidance-refugee-protection.html (Accessed April 1, 2021)
 to ameliorate the plight of refugees in Kenya. For the urposes of the literature review, the

sources are grouped into two categories:

The Principle of Non-Refoulment, the national security exception, and the

effectiveness of the legal and institutional frameworks

This series of sources provide insight into the definition and scope of application

of the principle of non-refoulment. The sources are drawn from both the international arena and

from within Kenya, from local authors and statutes.

a) Legislation

i. International legislation

o Charter Relating to the Status of Refugees 1951 and the Protocol.

This is useful for its encapsulation of the principle of non-refoulment. Additional

information regarding its ratification and signing by countries such as Kenya

helps to determine the nature of obligations it imposes on the Kenyan government

regarding refugee protection.

o Vienna Convention on the Law of Treaties 1969.

This provides guidance regarding interpretation of the treaty provisions of the

Refugee Convention in Kenya.

ii. Domestic Legislation

o Constitution of Kenya 2010

 This is the starting point as it justifies the applicability of the Refugee Convention

in Kenya, by virtue of Article 2. It also embodies a Bill of Rights that applies to all

persons in Kenya and places obligations on both the public and private sectors to adhere

to these human rights obligations.

o The Refugee Act 2006 and the Refugees (Reception, Registration and

Adjudication) Regulations of 2009.

This is the embodiment of the Kenyan population’s undertaking to receive refugees as

well as to respect, protect, and uphold their human rights. It also stipulates exceptions that

have been made to non-refoulment of refugees, particularly regarding national security.

o The Prevention of Terrorism 2012

This legislation provides guidance as to what qualifies as a terrorist act and the

punishments that are given when a person is found guilty of being a terrorist. This applies in

reference to refugees who are charged or even found guilty of terrorism. It is juxtaposed

against the international refugee standards and the Refugee Act to determine any coherence

or inconsistencies.

b) Journals

o Duffy, Aoife. "Searching for Accountability: British-Controlled Detention

in Southeast Iraq, 2003–2008." International Journal of Transitional

Justice 10, no. 3 (2016)

 This article examines the status of non-refoulment in International Law in respect to

three key areas; refugee law, human rights law and international customary law. The findings

suggest that while a prohibition on non-refoulment is part of International customary law and

International human rights law the evidence that non-refoulment has acquired the status of

jus cogens norm is not a convincing argument. 19 It can support the notion that the principle is

not a non-derogable right, thereby justifying the exceptions.

o Jean-Jacques Rousseau, Rousseeau ‘The Social Contract ‘and other later

political writings (Cambridge University Press, 1997)

Jean Jacque Rousseau was a French sociologist who opened the question of social contract in

time of social inequality in his treatise on the social contract theory. 20 The issues raised here

including infelicity reflect closely the issues of refugee justice and non-refoulment in

customary international law.

o Alice Farmer, ‘Non-refoulment &Jus cogens: Limiting Anti-Terror

Measures that threaten Refugee Protection’ Georgetown Immigration Law

Journal,23(2008),

19
Duffy A, “Searching for Accountability: British-Controlled Detention in Southeast Iraq, 2003–2008” (2016) 10
International Journal of Transitional Justice 410
https://www.researchgate.net/publication/304716757_Searching_for_Accountability_British-
Controlled_Detention_in_Southeast_Iraq_2003-2008 (Accessed 1 April 2021)
20
Rousseau J-J, “Rousseau: The Social Contract and Other Later Political Writings” [2018] Cambridge University
Press, 39
 In this journal, Alice Farmer21 addresses non-refoulment norm as progressively becoming

part of Jus Cogens. She shows how the anti-terrorism measures threaten refugee

protection in states. 22
This is relevant in advancing the argument that links refugee

protection to terrorism efforts in states, and shows the resulting problem resulting from an

imbalance between the two factions.

c) Publication

o “Kakuma, Daadab and Urban Monthly Operational Updates.” UNHCR

Kenya, www.unhcr.org/ke/monthly-kenya-operation-updates

This is a rundown by the United Nations High Commission for Refugees, of the

population of refugees in Kakuma, Kalobeyei, and Daadab from 2020 to 31 January

2021. It also provides the expenditure of the UN that goes into maintaining the camp and

enhancing the lives and dignity of the refugees who stream into the camps for shelter.

This information is useful for giving up to date information concerning the logistics for

running the camp, and estimating the burden that the Kenyan government bears in

refugee protection.

d) Thesis

21
‘Biography of Alice Farmer’, American Civil Liberties Union <http; //www.org/aclu/other/biography-Alice
Farmer>
22
Alice Farmer, ‘Non-refoulment & Jus cogens: Limiting Anti-Terror Measures that threaten Refugee
Protection’ Georgetown Immigration Law Journal, 23(2008),1. https://www.semanticscholar.org/paper/Non-
Refoulement-and-Jus-Cogens%3A-Limiting-Measures-Farmer/5c391bc36799a7523f63c5a5fb62e9c21ce9fe33
(Accessed 1 April 2021)
 o Peter Onyango Onyoyo, ‘Human Rights and the genesis of counter-

terrorism practice in Kenya 2014’ <http://erespository uonbi

.ac.ke/handle/112973556>

Peter Onyango wrote on International terrorism and Counter terrorism measures in

Kenya.23 This is a rundown of his insights into the challenges facing counter terrorism

measures and violation of human rights24 thus creating a clear anecdote on the topic of

non-refoulment and its serious challenges in the age of transboundary terrorism.

Recommendations

a) Journals

Mogire, Edward. “Refugee Realities: Refugee Rights versus State Security in Kenya and

Tanzania.” Transformation, vol. 26, no. 1, 2009, pp. 15–29. JSTOR,

www.jstor.org/stable/43052753.

This paper argues that the protection of refugees and national security interests should not

be treated as mutually exclusive, as they currently are being treated. The key recommendation

points towards achieving harmony between these two interests with the help of the international

community.

Saul, J. (2013) Collective Trauma, Collective Healing: Promoting Community Resilience

in the Aftermath of Disaster New York: Routledge

23
Peter Onyango Onyoyo, ‘Human Rights and the genesis of counter- terrorism practice in Kenya 2014’
<http://erespository uonbi .ac.ke/handle/112973556> (Accessed 1 April 2021)
24
Satvinder S.Juss, The decline and decay of European Refugees policy,’ Oxford Journal of Legal
Studies,25.4(2005) http://doi.org/10/1093/ojls/gqio36 (Accessed 1 April 2021)
 The study provides community-based recommendations, which can be applied to the

present case. The refugee population should be allowed to continue to integrate with the Kenyan

population, rather than discriminating against them. This fair and equitable treatment may inspire

notions of patriotism among the refugee population, so that they are not compelled to conspire

and abet terrorist activities because they would have as much to lose as other Kenyan nationals.

Conclusion

Provided there is conflict in any part of the world, the movement of refugees across

states will remain a pressing reality for any government. The principle of non-refoulment

eases this reality by encouraging states to accept into their borders’ refugees in furtherance of

a humanitarian duty to mankind. However, with rising concerns such as terrorism, refugees

are not well received in many states, Kenya not being an exception to this trend. There is

need to find an alternative that harmonizes the humanitarian objective of alleviating the

distress and suffering of refugees; with the national security objectives that governments

claim to be top priority.

CHAPTER BREAKDOWN

Chapter One: Introduction and Orientation of The Study

This chapter presents a background to the study. It entails a statement of the

problem, research objectives and questions and the research design. Additionally, is the
theoretical framework and finally a literature review right before the chapter breakdown

for the study.

Chapter Two: The Principle of Non-Refoulment and its Application in

Kenya

This Chapter focuses on the principle of non-refoulment. It examines the instruments

that incorporate the principle of non-refoulment such as the 1951 Refugee Convention. It

then analyses the application of the principle in Kenya, including an appraisal of the

Refugee Act enacted in 2006.

Chapter Three: National Security Challenges Posed by Refugees

This Chapter shall focus on national security in Kenya. Particular reference will

be made to the relation between the influx of refugees in Kenya and how this

compromises national security. It then addresses the effect of national security concerns

by the Kenyan government on the refugee population, including repatriation to the

countries of origin.

Chapter Four: Effectiveness of Legal and Institutional Framework of

Refugees

This chapter focuses on the 1951 UN Convention, the 1969 O.A.U Refugee

Convention, the Kenya Refugee Act of 2006 among other sources of law on refugee

protection, both internationally and domestically.

 Chapter Five: Findings, Recommendations and Conclusion

This chapter addresses resettlement and local integration of refugees into the

Kenyan population as viable solutions to the problem of potential repatriation of refugees

due to national security concerns.