U.S. Committee for Refugees and Immigrants World Refugee Survey 2007 - Kenya

Refoulement/Physical Protection

There no reports of refoulement of recognized refugees but the Government did return one asylum seeker from the Democratic Republic of Congo to Kinshasa after the Office of the UN High Commissioner for Refugees (UNHCR) rejected his application in the first instance but before he could appeal.

In October, the Government refused asylum to about 4,400 Somalis who fled continued fighting. The Internal Security Minister cited security concerns as reasons to deny the refugees entrance and stated that the Government barred them because "they were found not to be qualified for refugee status." The Government allowed registration to resume in November with stricter screening procedures, including the National Registration Bureau's fingerprinting of refugees and checking them against records in Nairobi, a process that took two weeks.

At the end of the year, the Government did not allow other agencies to monitor the Liboi border point, which reported the highest entry of asylum seekers during the year. In January 2007, the Government deported more than 420 Somali refugees – mostly women and children – who had just crossed the border at Liboi and barred 7,000 more from entering. Authorities also barred UNHCR from the area. Kenyan authorities claimed the dispersal of UIC forces within Somalia made it impossible to distinguish refugees from fighters. The Kenyan foreign minister commented that "it's not a written rule that when there is fighting in Somalia that people should run to Kenya, other nations should also take the burden." In February 2007, the Government forcibly repatriated about 2,000 Ethiopian asylum seekers who arrived in Moyale District, citing security concerns.

In August, fighting killed three refugees – two Somalis and one Sudanese – and a Kenyan man in Kakuma refugee camp in the northwest part of the country. The killings were the result of increasingly strained relations between refugees and the local Turkana community. Widespread banditry and cattle rustling contributed to the tension in the region.

Although security in the camps improved from the year before due to increased police presence, security forces, locals, and other refugees allegedly raped several refugee women in the camps. At Kakuma, rape was among the most frequently reported crimes although less so than in previous years. Women and girls were especially vulnerable when they left the camps to herd goats and collect water or firewood. Other sources of insecurity included persecution of Muslims who converted to other religions or married non-Muslims, controversies over female genital cutting, Islamic dress, forced marriages, and family objections to out-of-clan marriage, which often resulted in assault and the kidnapping of spouses and children. Kenyans and refugees from other camps mistreated and abused refugees because of ethnic and religious differences. Rival Somali clans sometimes fought among each other in the camps.

Flooding in northeastern Dadaab in mid-November killed two refugees, destroyed homes, displaced 100,000 refugees, and increased incidents of diarrhea and waterborne illness into the camps.

Kenya was party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol but maintained reservations on its clauses providing exemptions for refugees from exceptional and provisional measures, the right to work, labor protection, social security, and administrative assistance. It was also party to the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa. In November, the Parliament passed the Refugees Bill, which called for an inter-ministerial Refugee Status Determination Committee to adjudicate asylum applications under a Commissioner for Refugee Affairs. The legislation would also designate a Refugee Appeal Board and allow additional appeals to Kenyan High Court. The Bill also mandated the documentation of refugees living in urban centers and outside of refugee camps. The President signed it into law in January 2007.

UNHCR recognized about 285,900 refugees prima facie. The Government had recognized about 8,600 in the 1990s. There were also about 60,000 de facto refugees, recognized neither by the Government nor by UNHCR. Kenya received about 32,000 Somali refugees during the year. UNHCR also carried out refugee status determinations but did not accept written testimony prepared by applicants' legal representatives and did not allow applicants to have representatives with them at initial interviews but did allow lawyers at appeals interviews. Rejected applicants received generic forms with general categories of reasons checked but not specific individualized explanations.

About 1,800 Sudanese refugees repatriated with UNHCR's assistance, pursuant to a tripartite agreement between the agency, Sudan, and Kenya in January, but more may have left on their own. UNHCR signed a similar agreement with Rwanda and Kenya in March, but only two Rwandans chose to return under it. Resettlement countries accepted about 6,200 refugees and about 2,300 repatriated.

Detention/Access to Courts

The Government arrested about 43 percent fewer refugees and asylum seekers than in the previous year, generally charging them with illegal entry, lack of proper documents, or violation of the encampment policy (see below). UNHCR intervened in 118 cases in Nairobi. Pending implementation of the Refugees Bill, refugees and asylum seekers were subject to 1973 Aliens Restriction Act, under which the Government detained and prosecuted refugees and asylum seekers for illegal entry. The Government did not provide counsel but allowed the Refugee Consortium of Kenya to do so.

The few government-recognized refugees had access to courts equal to that of citizens and could use them to enforce their economic rights. UNHCR-recognized refugees did not. Refugees used traditional dispute resolution practices in Dadaab and Kakuma, which at times exceeded their powers by hearing criminal cases, such as rape, which belonged in Kenyan courts. In cases of rape, perpetrators could escape with payment of compensation to the victim's family and/or marriage to the victim.

In March, the Government began an official registration of foreigners. According to the Government, the process was an effort to account for as many as 60,000 refugees living outside of refugee camps and to issue them Class M permits to identify them as refugees with legal residence and Class H permits to engage in business.

Refugees the Government recognized under its early procedures were entitled to a government-issued Alien Certificate. Refugees UNHCR recognized after 1990 and holding UNHCR mandate letters were not entitled to such a certificate. The Government once issued some 20,000 identity cards to prima facie refugees in Kakuma. The Government received funding to issue identity cards to all the refugees in camps in 2007. Asylum seekers with UNHCR in Nairobi obtained appointment slips with their photographs that doubled as an identification document. Upon recognition, more than 2,900 applicants and dependents received mandate letters, but these did not always secure refugees and asylum seekers against arrest.

Freedom of Movement and Residence

The Government required nearly all refugees to live in several camps in the Dadaab and Kakuma regions but made exceptions for higher education, medical, or security reasons. At the year's end, the total camp population was about 285,000. Some 60,000 refugees resided outside of camps without permission, however, primarily in Nairobi. The small number of refugees the Government granted Convention refugee status before 1993 could live where they pleased.

UNHCR mandate letters stated that their bearers were to reside in camps and could receive assistance only there. UNHCR also transferred refugee status determinations to the camps, giving asylum seekers in Nairobi documents valid for one month to go to the camps for screening and registration. Police checks outside the camps also discouraged free movement. Camp-based refugees could travel to the towns of Kakuma and Dadaab, but the district officer had to authorize them time-limited movement passes to leave the area for specific reasons, usually specialized medical treatment and for specific durations. Officials took a long time to process applications, and the passes were often close to expiry when they issued them. Refugees who did not have valid travel authorization risked detention and prosecution at police checkpoints for unlawful presence under the 1967 Immigration Act, although, in most cases, they had to pay bribes or accept return to the camps.

In the urban areas, refugees, especially men, confined their movements to their residential areas to avoid harassment. Arrests decreased from years past, however, likely due to the Government issuing registration documents to refugees and asylum seekers earlier in the year.

No law authorized Kenya's encampment policy. The 1973 Aliens Restriction Act authorized the Government to "require aliens to reside and remain within certain places or district," but allowed the exercise of this power only in times of war or "imminent danger or great emergency."

Only the small numbers of government-recognized refugees were eligible for international travel documents, and the Government issued more than a hundred of them during the year and improved its processing time in emergency cases.

Right to Earn a Livelihood

The vast majority of refugees could not legally work. Many UNHCR-recognized refugees, however, did practice petty trade and paid daily rates to the city council. The few refugees the Government recognized in the 1990s could apply for permits under the 1967 Immigration Act to "engage in specific employment" for specific employers, trade, or engage in professions. The Government granted permits only if there was no qualified national available for the position. In 2005, the Government suspended issuance of the permits in anticipation of new permits that would give refugees the right to conduct business. During 2006, only one refugee obtained a work permit after the combined efforts of the refugee concerned, his employer, and UNHCR. The Government also tolerated tens of thousands of refugees working or trading in the informal sector. The small number of refugees the Government recognized enjoyed the protection of labor legislation but not social security.

In the camps, the Government tolerated refugees working, trading, and performing other economic activities. In Dadaab, however, the local government banned farming as it conflicted with local pastoralists grazing. In Kakuma, there was an informal ban on refugees owning livestock other than poultry. Nongovernmental organizations commonly hired refugees but paid them with incentives rather than salaries, and UNHCR and the Government placed a ceiling on the amount of the incentives. In 2006, the refugee workers filed a complaint with the International Labour Organization asking the Government to address their freedom of association, right to join trade unions, and minimum wages.

Only the small number of refugees the Government recognized could own property if they had a valid Alien Certificate. The vast majority could not. This exclusion was so pervasive that officials mistakenly perceived that refugees did not enjoy the right to own property. UNHCR-recognized refugees with valid passports could own bank accounts, and most could send and receive money through banks using their mandate letters for identification.

Public Relief and Education

Refugees were not eligible for Government rations but, in Nairobi, the few refugees recognized by the Government did have access to health services on par with nationals. Other refugees had to pay double the normal rate. In the camps, UNHCR and its partners provided free health services and rations.

In March, agencies reduced food aid rations by 20 percent for the 285,000 Somalis and Sudanese living in Dadaab and Kakuma camps. The cut was due to insufficient funding and the continuing demands of a regional drought on the donor community. More than one-fourth of refugees in Dadaab suffered from acute malnutrition, as did nearly one-fifth in Kakuma. More than four-fifths of refugee children under the age of five were anemic.

The 2001 Children's Act made primary education equally accessible to all but not free. In the camps, schools were free of charge.

For several weeks in December, security authorities restricted UNHCR and its partners' access to hundreds of refugees who had arrived at the Liboi border. The Government did not include refugee protection into its Poverty Reduction Strategy Paper. However, it did invite the Refugee Consortium of Kenya to comment on land reform and education policies.