ASSESSING THE CHALLENGES OF REFUGEE PROTECTION BY THE HOST

GOVERNMENTS. A CASE OF KENYA.

Introduction

Africa continent is pigeonholed by a series of internal displacements persons (IDPs),

refugee’s movement as well as mass repatriation in the past few decades. A significant

population has been displaced in nations like Angola, Democratic Republic of the Congo (DRC),

Liberia, Angola, Somalia, and Sierra Leone. People have been forced to leave their homes as a

result of ethnic wars and post-election violence (Article VIII (2). According to data collected by

UN High Commissioner for Refugees (UNHCR) and the US Committee for Refugees (USCR)

issue associated with human displacement is large and has kept on increasing. It has spread

geographically and very complex. Furthermore, there is qualitative evidence indicating that the

situation will become more precarious as those who seek refuge have failed ton find refuge in

other countries (Article 4 (k))).

The Legal and Policy Framework for Protecting Refugees

International and Regional Benchmarks for the Protection of Refugees

The 1951 United Nations Convention Relating to the Status of Refugees is the major

international legal charter for the protection of refugees as anchored in Article 14 of 1948

Universal Declaration of Human Rights. The document highlights refugees' protection, social

services, and supporting them in getting asylum. The other services offered by this organization

encouraging the host government to allow refugees exercise their rights and offering quality

education, health, and free movement.

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 Apart from January 1951, the 1951 Convention also presented in Article 1B for an

alternative geographical restriction to refugees “as a result of events occurring in Europe.” These

limitations to the refugees are no longer an issue of concern. The temporal restriction was

formally disregarded by the 1967 Protocol, while the geographical restriction was removed by

the vast majority of States, which were Party to the instrument hence giving the universal

dimension to the Convention’s provisions. For more than six decades, the 1951 Convention has

continued to be the cornerstone in protecting the refugees, despite being augmented by

international guidelines, for instance, the 1969 Organization of African Unity Convention

Relating to the Specific Aspects of the Refugee Problem in Africa.

This international charter embraced the definition of the 1951 UN Convention and

extended it to those who left their nation because “external aggression, occupation, foreign

domination or events seriously disturbing public order.” At this point, the main concern was on

the African country was based on refugees from territories that were under colonial rulers

(Okoth-Obbo, 2001). Contrasting the 1951 charter, the 1969 OAU Convention is transparent

when it comes to refugees' rights. However, a lack of a precise list of rights does not violate

rights stated by the 1951 Convention since the 1969 guidelines are unveiled as a ‘regional

complement’ and has to be read along with the 1951 mechanism. In this case, the OAU charter

focuses on individual refugees' features in Africa without withholding from the 1951

Convention. Therefore, all the rights given to the refugees by the 1951 Convention applies to the

refugee's host nation that is the OAU members Convention.

Apart from the two refugee charters, additional international and regional frameworks

also consist of provisions that have been adopted in protecting the refugees. Some of these

frameworks are suitable to specific features of refugee’s encounters; division of political

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dimensions like wars on the State's responsibility to protect, for example, mostly vulnerability of

some groups like children and women. Of the particular importance to Somali refugees in Kenya,

based on the current state of conflicts in their nation of origin and host nation, the 1949 Geneva

Convention comparative to the Protection of Civilian Persons in Times of War (Article VIII (2)).

According to Article 44 and 77, refugees should be regarded as “enemy aliens” because

of their justification of their nationality to enemy State. Similarly, Article 73 from 1977 Protocol

Supplementary to the Geneva Conventions of 12 August 1949, and associated to Protection of

Victims of International Armed Conflicts (Protocol 1) opines that “persons who, before the

beginning of hostilities, were considered as stateless persons or refugees ... shall be protected

persons...in all circumstances and without any adverse distinction.”

One of the mechanisms related to the rights of foreigners in the States is respecting

refugees' rights. The1966 International Covenant on Civil and Political Rights, core treaties in

regional human rights, states that the nation should make sure that both civil and political rights

of people within their region and subject to the jurisdiction (Article 2) (Kagan, 2006). The

Convenient also guarantees the free movement of people and bans forced expulsion in articles 12

and 13, respectively. Another significant treaty is associated with the potential risk of forced

displacement to an insecure and hostile environment like Somalia, in the 1984 Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 3

proscribe states parties from refueling an individual to another state where there is a significant

ground for thinking that they will be tortured, for instance, constant trends of violation of human

rights (Sharpe & Namusobya, 2012).

Generally, the right to look for asylum has been declared at a regional level, together with

the African Charter on Human and Peoples’ Rights. This is presented in Article 12(3) that each

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person shall have a right, if prosecuted, to look and obtain a refuge in another nation based on the

host nation’s law and international conventions. The Charter outlines that an individual has a

right to leave and enter any State, country of origin, and subject to the legal limit in protecting

the national security, public health, law and order, and morality (Buscher, 2010).

In the refugee population, like women and children, numerous traties are suitable for

protecting susceptible groups. This comprises the 1989 Convention on the Rights of the Child

(CRC), which highlights the awaited protection expansively and help that children should be

given and their right equivalence. Correspondingly, the 1993 Declaration on the Elimination of

Violence against Women (DEVAW) clarifies in its preamble the individual susceptibility of

women refugees (Olivier, 2009). While declarations are not obligatory, DEVAW has been

significant in describing and comprehending the challenges of violence against women.

At regional level, this has been enhanced by 2003 Protocol to the African Charter on

Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol): precisely, the

inclusion in its description of violence against vulnerable groups, arbitrary limitation on the

deprivation of fundamental freedoms, in both private and public life, in peaceful situation of

armed conflict or (Article 1(j)) (Lavenex, 2019). The refugees, in this case, the armed conflict is

essential since it brings in female protocol female asylum-seekers and immigrants in addition to

other categories of conflict-affected women (Refugee Consortium of Kenya, 2012).

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Kenya’s Obligations towards refugees: The National Legal Framework

Kenya is a member of the 1951 United Nations Framework and 1961 Protocol in

addition to the 1969 OAU mechanism (Refugee Consortium of Kenya, 2012). Most importantly,

Kenya did not join the hesitation by the Convention, hence considering all the legal obligations

to safeguard refugees under the term within (In particular, Article 4 (k)). What’s more, Kenya is

a national party to different complementary human rights accords application to the refugees and

bears the international legal responsibility in this convention, there is national law associating to

the refugees.

The Constitution of Kenya 2010

The Kenyan Constitution is regarded the Supreme law of the land that connects all

citizens and nation organs (Kenya ratified 1951). Importantly, Article 2 (5) of the Kenyan

Constitution 2010 indicates that overall, the international law should be a section of Kenyan

Law. Article 2 (6) highlights that any treaty or convention by Kenya forms a section of law (In

particular, Article 4 (k)). The fundamental interpretation of this section recommends that, by the

provision, treaties, and resolutions validated by Kenya do not have to be domesticated for them

to accomplish the force of law. Even though it is debatable if the conventions about basic

freedom and human rights are executed independently. Another constitutional provision needs to

the State to indorse international obligation in reverence of human rights and basic freedom

(Article 21(4).

Though there is refugees legislation put in place before the promulgation of the

Constitution, the interpretation of necessities may have an impact on refugees' rights that may

not be presented in the current law and recognized in the regional framework (In particular,

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Article 4 (k)). Significantly, about the 2011 Refugees Bill, Kenyan constitutional provisions on

local convention may be adopted in augmenting the current national law (Article 19(3)). If the

present law or reviewed law does not meet the standard put in place by the constitution, there is

some room for litigation that is caused by the governmental articles against the government.

Correspondingly, the Bill of Rights under the Constitution influences refugees' rights

protection. The Bill of Rights is comprehensive and consists of political, civil, cultural, and

economic aspects and people’s rights (Government of Kenya, 2012). It is worth noting that

refugees and asylum seekers have to benefit from the provision as much as they apply to all

persons (Kenya ratified 1951), for standards highlighted against the human rights enjoyment in

Kenya. Even though most rights and freedoms are limited, any constraint shall be a law and

degree that is sensible and justified in a transparent and democratic society in accordance with

human dignity and independence.

Consequently, for instance, for the refugee's policy encampment to be legitimate, beyond

the law description and has to meet the test developed by the restriction clause, or else it will be

null and void. Article 43 is based on economic and social rights are also important. The Article

outline six rights that should make accessible to all; the highest achievable health standard,

consisting of rights to access health care serves and reproductive health; quality and accessible

housing and reasonable framework for sanitation, free from hunger, access to food, clean water,

education, and social security.

Service, in accordance with those rights, has to stick to minimum core content in the

rights as established by the United Nations Committee on Economic and Social Rights. The

present refugee's situation at the camps has to meet these standards and degree that the Bill of

Rights that can be entreated in holding the GOK to the constitutional accountabilities towards

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refugees. Though the constitution plays an imperative role in describing individual rights and

responsibility, consisting of refugees, specific mechanisms for asylum seekers provide a more

comprehensive account that the refugee's freedom in the nation is in position to exercise and how

the government is sticking to the regional standards.

Assessing the Implementation of the Refugees Act 2006

The refugee Bill, 2011

From 2006 backward, Kenya lacked refugees' specific laws and affairs that were

implemented in the framework of the immigration-related laws, remarkably the immigration and

the Alien Restriction Acts (both now-repealed Cap 172 and 173 respectively). In 1992, the

government invitation, , UNHCR presumed general obligation in protecting the refugees. This

consisted of asylum application and their standard determination leading to granting refugees'

situation depending on the UNHCR’s mandate.

In this administration, UNHCR categorized two classes of refugees; directive and prima

facie. The status directive adopted to the refugees who have gone through some individual

refugee status determination (RSD), while the prima face condition adopted to citizens from

South Sudan and Somalia, these regions are impacted by generalized wars. Prima facie refugees

mostly lived in camps, even though for some time, even some directive refugees were in the

camp. Furthermore, before 2000, there is no systematic registration of refugees by the

government. Hence, refugees could not access the rights of identity documents. However, this

changed from 2000, when the government using the National Registration Bureau commenced

registration and insurance of refugee’s identification card 18, an activity that has now been

upgraded to an Act.

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 In late 2006, after two decades of civil war and advocacy, the refugees Act (Government

of Kenya, (2012) was executed by parliament in December 2006 received the constitutional

agreement. Beginning in May 2007, the Act was principal for different reasons. Primarily, this

allowed the Kenyan constitution has assumed responsibility in the management of refugee issues

using an institutional framework, such as an administrative procedure on the refugee.

Furthermore, the law also aimed at guiding all stakeholders on managing refugee issues in

Kenya.

In its description of refugees, the Refugees Act categorizes as either constitutional or

prima facie. By statutory refugees, the Act embraced definition form the 1951 Convention

together with gender as the prosecution ground. Alternatively, the definition of prima facie

refugees obeys the enhanced refugee's description in Article I (2) of the 1969 OAU Convention.

Also, the Act states that the Minister has the power to declare pima facies to a class of people.

The adoption of the term means that the minister is free to claim prima facie, but it is not clear

what will happen when such a declaration is made.

The Principle and Practice of Asylum

Kenya has developed a most comprehensive and well-deserved treaty on refugees from

the 1960s to the 1980s. These treaties have paid an imperative role in protecting refugees. The

newly independent nation of Africa readily acceded to the main regional refugee's tools and in

1969s, developed international refugee treaties that introduce a very inclusive description of

refugees' ideas that were applied to other parts of the world (Crisp, 2000). In the same period, the

OAU Refugee Convention of 1969 contrasting the 1951 UN Refugee Convention unequivocally

indicated that refugees repatriation to their State of origin and has to take place in a voluntary

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foundation. In this case, Africa has developed a new and well established legal framework in

treating the exiled population.

Even though there was some situation whereby nations failed to act based on these laws

and standards, the era between the 1960s and 1980s has been justified. If there is a little

exaggeration that has been on referred to as the "golden age" of refugees in Africa, the

government permitted a significant number of asylum seekers to enter and be in their territory

(Crisp, 2000). Most refugees have enjoyed a reasonable secured living condition and enjoyed a

wide range of economic, lehala, and social rights (Crisp, 2000).

Some refugees were given land and motivated to be independent. In some nations,

refugees were given permanent residence and enjoyed all the citizen’s privileges. Thought the

deportation and eviction of refugees were not recognized, the principle of voluntary deportation

was largely appreciated. When one permits a significant extent of charitable nihilism, there is a

wide consensus among the asylum seekers organization, and researchers of the situation no

longer overcome (Crisp, 1986). Certainly, refugee’s protection ideas that was becoming an issue

and undermined in most nations in Africa. The Tanzania researcher stated that;

“African states have become less committed to an asylum. Instead of opening

their doors to persons fearing harm in their states, African countries now prefer

refugees to receive protection in "safe zones" or similar areas within their

countries of origin. African states now routinely reject refugees at the frontier or

return them to their countries of origin even if the conditions from which they

have fled persist. Refugees who manage to enter and remain in host countries

receive "pseudo-asylum" Their physical security, dignity, and material safety is

not guaranteed. As for solutions, African states are less inclined to grant local

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 settlement or resettlement opportunities to refugees. What they seem to prefer is

repatriation at the earliest opportunity, regardless of the situation in the countries

of origin” (Rutinwa. 1997).

Although the depiction that the paint is accurate, past quotation unmistakably demands

more clarification. Why did the principle and refugees get robust support in the 1960 and 1970s?

Why did the help reduce in the 1980s and 1090s? What can the shareholders do to reverse the

situation? The liberal refugee's laws and principles were embraced by some African state 20

years from the independent and has led to Africa’s "tradition of hospitality" (Crisp, 2000). Even

though this factor should not be discounted, it is essential to consider the degree that the

principle and asylum seekers were affected by other considerations on the period discussed

(Crisp, 2000). In the period between the 1960s and 1970s majority of refugees were displaced

because of the struggle for independence and wars on national liberation. This is evident in

nations such as Angola, Guinea-Bissau, Rhodesia, Mozambique, South Africa, and South-West

Africa (Schmeidl, 1998). The pan Africanism and anti-colonialism has remained stable across

the continent, the most notable leaders like Kenneth Kaunda and Julias Nyerere set the best

example in developing policies to settle refugees (Schmeidl, 1998).

In this period, the relative success of most African nations in early independence years

and the big size of the refugee's movement that happened in the era and allowed this nation to

accept the economic burden that was imposed refugees' presence from neighboring countries.

The practice and principle of asylum in the continent was later strengthened through

international help. Across the continent, the unspoken deal was struck whereby the African

nation accepted the refugees to their country and offered land to accommodate them. As the

mutual gesture (also known as a humanitarian community as "burden-sharing”) donors nation

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provided financial support, most of it was channeled using UNHCR - obligatory to feed, shelter,

education and provision of quality health care to asylum seekers.

Additionally, there was mitigation of the effect of refugees' presence, it has to be added;

these assistance programs offered African nations and elites with the source of foreign currency,

business opportunity, and employment (Crisp, 2000). In the past decade, the conceptual and

material underpinning of African tradition “tradition of hospitality" on the asylum seekers has

been dismantled. The sheer number has played a vital part in the process; even though there were

about one million refugees in Africa in the 1970s, the figure has increased to nearly six million in

the 1990s (Schmeidl, 1998).

The spread and prevalence of conflicts have been witnessed across the nation from the

1980s to date. This has led to large scale emergencies of people displacement in countries such

as Tanzania and Zaire (1994), Cote d'Ivoire, Guinea, and Sierra Leone (1989- 90), Sudan (1984-

85), Ethiopia (1988) and Benin (1993). It is not about anti-colonial and liberation refugees; the

new trend of refugees in Africa is about internal conflict and violence associated with the

election. While the increasing size and changing character of refugees, according to Africa,

reducing commitment to the principle asylum between the 1980s and 1990s, a number from

other variables have to be considered.

First, it is essential to note that industrial nations, apart from those in African, are leading

in violating the rights of refugees and undermining refugee's protection. Certainly, since the early

1980s, Western Europe, Australia, and North Ameican nations introduced broad measures that

were aimed at averting or discourage refugees from arriving. This was the time when countries

were obliged to develop an international refugee regime that is challenging. It was surprising that

nations with economic challenges have decided to follow suit. Therefore, when African countries

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close their borders to stop refugees from entering, they tend to justify their actions by referring to

the standards that have been set in more flourishing sections of the world. "In the current

situation, what country would keep its border open?" The African minister asked UNHCR to

respond to the incursion of refugees. Closing the national border, he stated, "if this were a

western country, it would have been well accepted" (Crisp, 2000).

Second, most African nations that have received a significant number of refugees in the

past now feel that their generosity has been ignored. Malawi has accommodated a large number

of Mozambicans, for instance, have encountered significant environmental challenges like soil

erosion and deforestation. Now that refugees have gone back to their country of origin,

international attention has moved from Malawi, and the nation has been left to cope and manage

issues that were left behind by refugees.

Third, donor nations has been said to have aggravated the weakening in protection

standard in African by making it clear as they do not prepare to support refugees for an extended

period. Programs that have been existence for years have to be ended as soon as possible. When

new refugees' movement takes place, efforts should be made to make sure that repatriation of the

concerned hence averting the long term needs, "care and maintenance" programs. The

description of this association was noted in late 1996 when the host nation informed the UNHCR

that they want to see the program assistance for Rwandan refugees in Tanzania and Zaire. Based

on the senior United States Department officials, the national resources were “limited and

diminishing." It was a necessity to break the “intolerable and unsustainable status quo” using the

procedure of "prompt, voluntary and orderly repatriation" (Oakley, 1996). One month later, more

than half a million Rwandans were forced to leave Tanzania with some objection from the UN

(Oakley, 1996).

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 Fourth, to comprehending the declining obligation to refugees in Africa, economic

elements have to be considered. As stated earlier, when African states started to get a significant

number of refugees between the 1960s and 1970s, they were well planned to manage refugees'

invasion. In the past two decades, but many of these nations have noted a negative or low

negative economic development. In the insistence of industrialized countries and universal

financial establishments, African states have the responsibility to bring free-market economic

growth as well as making great cuts to public expenditure and services. At the same point, the

official development assistance from prosperous nations has reduced and targeted fewer

governments with development prospects and investment potential. Only a few countries fall into

this group.

Fifth, in the past few years, African nations have drawn international focus to the adverse

environmental effects of refugees' movement and increased population in asylum nations. This

effect and international community failure to manage many governments in Africa have

referenced this issue as one of the reasons for declining willingness to accept refugees. In a real

sense, the environmental impacts attributed by refugees may not be significant as it is assumed to

be. There is less doubt that that poor people in the affected areas can be negatively affected by

refugees' presence. For instance, in the Ngara district in Tanzania, the Rwandan refugees

outnumbered the local community. "This leaves the procurement of all other shelter materials

and fuelwood completely up to the refugees, who are forced to exploit whatever the surrounding

natural vegetation offers them. A free-for-all attitude is created within the refugee communities

about firewood, poles, timber, grass, animal fodder and any other plant material available within

walking distance."' (Oakley, 1996).

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 The stereotype mostly supports the adverse effects of these challenges on the local

communcies that refugees usually get special treatment from the international community.

Though UNHCR and other humanitarian institutions have enhanced integrated and programs to

help in coping with refugee issues, it has remained the case of the global relief effort that aims at

improving refugees' rights. Most of these organizations have been blamed for preferring refugees

to local communities. Therefore, international aid organizations have reported that the increased

resentment of Congolese citizens on the arrival of Rwandan citizens. People claimed that

refugees are living a better life than residents. The same case is witnessed in North-West Kenya,

whereby some Somali refugees can hire the local Turkana as casual workers.

Sixth, as preset in the following section in the article, the decreased rate of asylum in

Africa can attribute to the perception that exiled people lead to insecurity. At the national level,

refugees are linked to issues such as prostitution, crimes, drugs, and alcoholism. In most cases,

host nations are not able to maintain law and order in remote and underdeveloped areas where

the majority of people are refugees. The aggressive reception received in African countries is

associated with political development. Indeed, there is enough evidence of the relationship

between the democratization process and the decline in refugee protection standards. Before the

1990s, the dictatorship government and one party in African nations that were ready to provide

asylum to refugees and when they consider these policies that are consistent with their interest.

The end of the cold war and introduction of a pluralistic government system in most parts in

Africa, refugees has assumed a new degree of political importance.

In the industrialized nations, both governments and opposition parties have promoted

jingoistic and chauvinistic sentimentalities and blaming refugees for the misfortune of the

country. In countries where most people live below the poverty line and wide income range, for

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instance, South Africa, such messages have invoked violence. From the humanitarian point of

view, there is an obvious need to stop and reverse declining African commitment through

international bodies such as Human Rights Watch (HRW), and Amnesty International have

contended that UNHCR has failed to protect refugee's rights.

Conclusion

As presented above, the current pressure on refugees in Africa is rooted in the social,

political, and economy of the continent. They also part of the globale pattern in refugee policies

and asylum practices. In this sense, it would be naive to believe that this issue can be solved by

exhorting the African government, opposition, and host nations, aids organization in treating the

asylum seekers with the respect they deserve. And yet, advocacy is one tool that is in the

humanitarian community. Fruitful advocacy appears to have both value and self-regard. This

idea can be adopted to issue of asylum in Africa. Respecting the principles of regional refugee

law and is not inconsistent with the national interest.

Undeniably, the OAU refugee’s convention was established by the African government

to manage cross-border population displacement in a manner that promotes national security and

national interest. The creation of the international refugee's system and burden sharing principle

has depended on understanding the issue of forced migration. To strengthen the institution of

asylum in Africa, the laws of state responsibility and international harmony must first be

extensively esteemed.

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References

Article 21(4) of the Constitution provides: “The State shall enact and implement legislation to

fulfill its international obligations in respect of human rights and fundamental freedoms.

Buscher, D. (2010). Refugee women: Twenty years on. Refugee Survey Quarterly, 29(2), 4-20.

Crisp, J. (2000). ‘Africa’s refugees: patterns, problems and policy challenge, New Issues in

Refugee Research, no. 28, Geneva: UNHCR. https://doi.org/10.1163/221161700X00046.

Government of Kenya (2012). Constitution. Article 2(1).

In particular, Article 4 (k) requires State parties to ‘ensure that men and women enjoy equal

rights in terms of access to refugee status determination procedures and that women

refugees are accorded full protection benefits and guarantees provided under international

refugee law, including their own identity and other documents.’ Article

Kagan, M. (2006). The beleaguered gatekeeper: protection challenges posed by UNHCR

Refugee Status Determination. International Journal of Refugee Law, 18(1), 1-29.

Kenya ratified the 1951 Convention and its 1967 Protocol in 1981 and the 1968 OAU

Convention in 1972.

Lavenex, S. (2019). Regional migration governance–building block of global

initiatives?. Journal of Ethnic and Migration Studies, 45(8), 1275-1293.

Okoth-Obbo, G. (2001). Thirty years on: A legal review of the 1969 OAU Convention

Governing the Specific Aspects of Refugee Problems in Africa. Refugee Survey

Quarterly, Vol. 20, No.

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Schmeidl, S. (1998). 'Comparative trends in forced displacement, 1964-96, in Hampton, J (ed),

Internally Displaced People: A Global Survey. London: Earth- scan.

Sharpe, M., & Namusobya, S. (2012). Refugee Status Determination and the Rights of

Recognized Refugees under Uganda’s Refugees Act 2006. International Journal of

Refugee law, 24(3), 561-578.

Olivier, M. (2009). Regional overview of social protection for non-citizens in the Southern

African Development Community (SADC). World Bank Social Protection Discussion

Paper.

The Convention contains several articles referring to this relationship: preamble para 7, para 10,

Article VIII (2).

Refugee Consortium of Kenya. (2012). Asylum under threat: Assessing the protection of Somali

refugees in Dadaab.

Rutinwa. B. (1997). These trends are also documented by Amnesty International (1997a) and

Human Rights Watch.

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