U.S. Committee for Refugees and Immigrants World Refugee Survey 2006 - Kenya

Refoulement/Physical Protection

In 2005, the Government deported four Ethiopians to whom the office of the UN High Commissioner for Refugees (UNHCR) had granted refugee status. In spite of a court order imposing a stay of deportation for three of the four, the Government forcibly returned them, citing national security concerns. The Government deported the fourth without verifying his status.

The Government denied refugee status to about 17,000 Somalis who fled from clan violence in Gedo, Somalia. The Government recognized about 5,000 Sudanese refugees on a prima facie basis and placed them in Kakuma camp. During the year, UNHCR registered nearly 13,000 new arrivals.

Kenya had no refugee law. The Government conducted individual refugee status determinations until about 1993, when UNHCR took responsibility for them. In March, a government commission presented a draft Constitution, which would have established the right to seek asylum and protection from refoulement, but it failed to pass. As drafted, the Constitution would require Parliament to enact national laws consistent with international refugee law within one year of the Constitution's ratification. In late summer, Parliament gave a first reading to refugee legislation but did not vote on it.

In March, the Government ordered all undocumented migrants, including refugees and asylum seekers, to register their presence by June 30, threatening to deport those who did not comply. The announcement caused more than 10,000 individuals to try to register with UNHCR, which, however, maintained its policy of requiring nearly all Somali and Sudanese applicants to apply from camps even though most resided in Nairobi. Faith-based and other aid groups protested the short deadline and prompted the Government to extend it to August 15. An aid group in Uganda reported a surge of primarily Somali refugees arriving in Kampala from Kenya and attributed the increase to the fear of deportation resulting from the registration requirement.

In December, several hundred Sudanese refugees returned home, beginning the process that UNHCR anticipated would include more than one thousand.

Detention/Access to Courts

The Government arrested more refugees and asylum seekers than the year before, formally charging them with illegal entry or violation of the encampment policy (see below). UNHCR intervened in 273 such cases in Nairobi alone. In most cases, the Government released individuals after UNHCR verified their refugee status. With fear of deportation and confusion about the registration reigning, police in Nairobi reportedly demanded bribes of about $7 (500 Shillings) from those they caught without documentation, more than double the usual rate for bribes.

According to UNHCR, "In both Dadaab and Kakuma, traditional dispute resolution mechanisms are practiced. They, at times, however, exceed their powers by hearing criminal cases, such as rape, which should be dealt with by the Kenyan courts." In cases of rape, perpetrators could escape with payment of compensation to the victim's family and/or marriage to the victim. Five traditional bench courts prosecuted refugees in Kakuma based on customary law. In the past, these courts imprisoned refugees for offenses that were not crimes under Kenyan law, particularly women for adultery (men were only subject to fines for this offense; according to Sudanese community leader Deng Dau Deng in 1997, "Most people put in the Sudanese prisons in Kakuma are there for adultery"). Although UNHCR acknowledged visiting all the detention cells of the joint bench courts weekly, it did not verify whether the practice continued in 2005, despite repeated inquiries. Instead, UNHCR generally limited its reporting to the courts' manifestly incomplete paper records. There were several other district or county bench courts in Kakuma with detention cells that no protection authorities monitored.

In a March 2006 visit, however, UNHCR and Lutheran World Federation found a woman the court had incarcerated for refusing to forgive and return to her husband who had assaulted her. They obtained her release and placed her in a safe haven area.

Freedom of Movement and Residence

The Government's encampment policy required nearly all refugees under UNHCR's mandate to live in several camps in the Kakuma and Dadaab regions. More than 60,000 refugees resided outside of camps without permission, however, primarily in Nairobi. The small number granted Convention refugee status before 1993 could live where they pleased.

Mandate refugees could travel freely to the towns of Kakuma and Dadaab but required time-limited movement passes authorized by the District Officer to leave the area. UNHCR could request permits from the National Refugee Secretariat for refugees to reside outside the camps for their own protection, medical treatment unavailable in the camps, and tertiary education. Some authorities, however, did not recognize the validity of the permits. Refugees who did not have valid travel authorization risked detention and prosecution at police checkpoints for unlawful presence under the 1967 Immigration Act. The authorities managing the Dadaab camps were more restrictive than those in Kakuma.

There was no law authorizing the camp confinement policy. The 1973 Alien Restriction Act allowed the Government to "requir[e] aliens to reside and remain within certain places or districts," but only in times of war or "imminent danger or great emergency."

The Government issued refugees 55 international travel documents during the year and improved its processing time especially in emergency cases.

Right to Earn a Livelihood

The vast majority of refugees, i.e., those with status under UNHCR's mandate or undocumented, could not legally work. Convention refugees the Government recognized in the 1990s, however, could apply for permits under the 1967 Immigration Act to work, trade, or engage in professions. The Government granted permits only if there was no qualified national available for the position. Working without a permit or hiring someone without one was a criminal act. In 2005, however, the Government suspended issuance of the permits in anticipation of granting a new type of permit that would give refugees the right to conduct business.

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 (NGOs) commonly hired refugees, but UNHCR and the Government placed a ceiling on their wages. The Government also tolerated tens of thousands of refugees working or trading in the informal sector.

While Kenyan law did not formally deny refugees the right to own property, most could not because they lacked documentation. This exclusion was so pervasive that officials mistakenly perceived that refugees did not enjoy the right to own property. The draft Constitution would guarantee "every person" in Kenya freedom of trade and professions, the right to freedom of movement and residence, and the right to own property.

Public Relief and Education

The Government provided refugees in camps with food, water, education, medical, and other basic services. More than one-fourth of all refugees in Dadaab camp suffered from acute malnutrition and nearly one-fifth in Kakuma camp. Young children and women suffered from high levels of anemia and malaria. The Government did not incorporate refugee protection into its Poverty Reduction Strategy Paper for development aid.

Flooding in northeastern Dadaab in late April swept away refugee shelters and left more than 25,000 refugees in Ifo camp homeless. The flood brought increases in dysentery and other health problems in the camps. In urban areas, UNHCR provided very limited medical care and education assistance to refugees. Some refugee children received schooling from churches and NGOs in Nairobi. The Government allowed aid agencies access to refugees.