World Refugee Survey 2008 - Kenya

Introduction

Kenya hosted nearly 319,400 refugees and asylum seekers. About 196,200 were Somalis who began fleeing the civil war and state failure that followed the fall of the Siad Barre regime in 1991. Another upsurge followed Ethiopia's overthrow of the Islamic Courts Union in December 2006. Even after Kenya's closure of the border in January, some 2,000 managed to enter clandestinely. There were more than 25,600 Somali applicants out of the total of nearly 34,200 new applications for asylum, which also included 5,400 Ethiopians and 2,200 Sudanese.

Kenya also hosted about 100,000 stateless Nubians, descendants of Sudanese whom the British conscripted in the early 1900s, and a number of stateless children of mixed Eritrean-Ethiopian marriages.

Refoulement/Physical Protection

In January, Kenyan police forced more than 700 refugees back to Somalia from the border towns of Liboi and Kiunga and more at Garissa, arresting most of them in UNHCR-run transit centers after the agency had registered them a few days earlier. The police chased UNHCR's contractors away and beat refugees who resisted. Kenya closed the border, leaving 5,000 to 7,000 stranded on the other side. Authorities reportedly deported suspected Somali terrorists to Ethiopia without hearings. In May, Ethiopian authorities admitted holding 41 of them but said they released most by year's end.

In February, officials in Moyale District forcibly returned some 1,000 to 2,000 Ethiopians who fled communal fighting in the Yabalo region with their cattle after Ethiopian officials promised their safety.

In November, authorities detained 49 Somalis at the Nairobi airport, denied them access to UNHCR, reportedly beat some, and forcibly returned 23 of them. After the rest went on a hunger strike in protest and Kenyan nongovernmental organizations (NGOs) won a court order prohibiting their refoulement, authorities placed them in Dadaab refugee camp.

Kenya also forcibly repatriated one refugee from the Democratic Republic of Congo and two Ethiopian asylum seekers.

Security forces reportedly raped women in refugee camps. There were also reports of rape, domestic violence, and crimes between refugees, as well as some attacks against refugees during the presidential elections. Refugees significantly under-reported sexual and gender based violence. In January, four local residents reportedly shot and severely wounded a refugee in Kakuma camp. According to the U.S. State Department, some persecuted refugee converts to Christianity, and there was community pressure against opponents of female genital cutting and forced and early marriage. Reportedly, a Somali group linked to Al Qaeda worked in Dadaab and authorities caught Islamic fighters at the border trying to enter.

Kenya was party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol but maintained reservations on the Convention's clauses exempting refugees from exceptional and provisional measures and providing 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 May, the 2006 Refugees Act went into force but, after the elections, there was no Minister for Immigration and Registration of Persons to promulgate implementing regulations. Nevertheless, authorities cited a requirement for asylum seekers to register within 30 days of entry to deport the refugees in Garissa and elsewhere. The Government referred asylum seekers who applied under the Act to UNHCR, which continued to conduct refugee status determinations and run the camps at Kakuma and Dadaab.

In December, the Government appointed a Commissioner for Refugee Affairs. Under the Act, he was to receive, process, and decide applications for refugee status.

The Act recognized as refugees those with wellfounded fears of persecution on 1951 Convention grounds and, prima facie, those compelled to leave their countries because of serious disturbances in part or the whole of such countries. The Act specifically authorized the immigration minister to declare entire classes of persons to be refugees prima facie. It prohibited refusal of entry or return in any manner of persons to countries where they might be subject to persecution or where serious disturbances of public order would threaten their lives or liberty.

Detention/Access to Courts

Kenyan authorities detained at least 800 refugees and asylum seekers for illegal entry and stay. UNHCR was able to monitor some detention facilities when officials, the refugees' family members or friends, or NGOs informed the agency that authorities were holding refugees or asylum seekers and on other occasions but did not monitor police stations in Nairobi systematically. Monitoring in locations where the agency did not have a permanent presence was less frequent.

In December, authorities denied UNHCR access to 49 Somali asylum seekers they were holding at the Nairobi airport. After Kituo Cha Sheria, a legal service NGO, filed a judicial review, the court allowed 26 of the asylum seekers to go to Dadaab refugee camp.

The Refugees Act authorized the Commissioner for Refugee Affairs to arrest people suspected of offenses under it but prohibited the detention or punishment of any "person claiming to be a refugee" for illegal entry or proceedings for unlawful presence against those who had filed bona fide applications for refugee status or their family members. It also required the issuance of identity cards or passes to "every refugee and asylum seeker" and called for the Commissioner for Refugee Affairs to register and issue identity cards to refugees. In 2005, the Government had issued such documents to the refugees in Kakuma and, in 2006, issued some 30,000 refugees in Nairobi slips similar to those it issued Kenyans prior to granting identity cards. Although, the Government had registered the refugees in Dadaab in 2006, it did not issue them identity documents. In January 2008, the Government started issuing identity cards to Somali refugees in Nairobi. UNHCR registered newly arriving refugees in Dadaab.

In Nairobi, UNHCR provided nearly 2,200 Mandate Refugee Certificates which served as identity cards for registered asylum seekers. However, refugees recognized under UNHCR's mandate did not have full protection under the 1951 Convention.

Freedom of Movement and Residence

Kenya confined the vast majority of refugees to desolate refugee camps around Dadaab and Kakuma but also began to allow those in Nairobi to register without being in camps. Camp refugees could receive permission to leave for higher education, specialized medical care, or security. Police checked papers outside camps to enforce movement restrictions and, throughout the country, police stopped vehicles and engaged in extortion, requiring additional identification from Somalis. Many refugees lived in Nairobi but reported police harassment and often had to bribe their way out of arrest or deportation.

UNHCR and local officials issued Movement Passes for refugees to leave the camps temporarily, typically for medical or other purposes, or for newly arrived refugees traveling to the camp. The processing took about two weeks, passes expired before they reached the refugees, and authorities ignored applications. There were more restrictionson refugees in Dadaab, which hosted a majority of Somalis, than in Kakuma camp, which hosted mostly Sudanese.

About 3,800 who received refugee status from the Government before 1990, however, did enjoy freedom of movement and choice of residence.

The Refugees Act provided that the immigration minister could establish camps and transit centers but required notice in the Gazette, consultation with the host community, and that they be maintained "in an environmentally sound manner." It called upon the Commissioner to manage them and to ensure sustainable use of resources in their areas. Refugees residing outside such areas without authorization were subject to fines up to 20,000 shillings ($310) or six months in prison or both. The Government deployed managers to the two major camps but did not give notice in the Gazette.

Pre-1990 refugees were eligible for international travel documents from the Government and UNHCR processed nearly 60 requests for refugees it recognized under its mandate but authorities generally did not consider applications from Somalis.

Right to Earn a Livelihood

Refugees recognized by UNHCR were not eligible for work permits and it was unlawful for them to engage in economic activity. Police and local council law enforcement occasionally harassed and extorted bribes from those who attempted petty trade.

Kenya maintained reservations on the 1951 Convention's right to work but only to allow protectionist restrictions on refugee employment for four years instead of the three the Convention allowed and to reject its requirement to give sympathetic consideration to assimilating refugee rights to those of nationals. It was still obliged to accord refugees "the most favorable" treatment accorded to nationals of foreign countries. Under the Immigration Act, the Government allowed class M work permits to refugees it recognized prior to 1990 but it did not issue new work permits nor did it renew expired ones in 2007. The Refugees Act subjected refugees to the same wage-earning employment restrictions as other foreigners and called upon the Commissioner to ensure that refugee economic activities did not have a negative impact upon host communities.

Kenya's reservation to the 1951 Convention's extension of social security and compensation for death from job-related injuries and diseases was only that it apply them "as far as the law allows." The reservation, however, did not cover the Convention's requirement that Kenya extend equal treatment to refugees under its labor legislation. Nevertheless, most refugees did not enjoy such protection. They also lacked documentation to acquire land, bank accounts, vehicles, and other assets.

Public Relief and Education

While the first of thousands of Somali asylum seekers who entered after the border closure could register with UNHCR for food and medical services in the camps, authorities halted this by June.

Malnutrition rates in children under 5 were more than 22 percent in Dadaab and nearly 16 percent in Kakuma. The anemia rate for children under 5 was 78 percent and nearly 73 percent among women.

Officials from UNHCR, Kenya, and Sudan restricted education for Sudanese refugees to encourage them to repatriate. Camp residents received free health services, but if refugees used public services outside the camps without a referral, the facilities would charge them as foreigners. The Government provided the same free primary education to both refugees and nationals but some schools charged refugees fees.

Kenya did not include refugees in the Poverty Reduction Strategy Paper it prepared for international donors, but its UN Development Assistance Framework for 2009-2013 included implementation of the Refugees Act and refugee governance in its first priority area, Improving Governance and the Realization of Human Rights. The

Refugees Act also called upon the Commissioner for Refugee Affairs to initiate projects promoting harmony between host communities and refugees and to advise the immigration minister on soliciting funds for refugee programs that helped host communities.

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