(Mar. 8, 2017) On February 9, 2017, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found unconstitutional the government’s decisions to close the Dadaab refugee camp without first consulting stakeholders and to forcibly repatriate Somali refugees in the camp. Judge John M. Mativo, who handed down the decision, also found the government’s plan to repatriate all refugees in the camp to Somalia a violation of the principle of non-refoulement stipulated under article 33 of the 1951 Convention Relating to the Status of Refugees and section 18 of the 2006 Kenyan Refugee Act. In addition, the Court held that the decision of the government to disband the Department of Refugee Affairs (DRA) was ultra vires and thus null and void. (Kenya National Commission on Human Rights & Another v. Attorney General & 3 Others  eKLR, Kenya Law website; The Constitution of Kenya (rev. 2010), Embassy of the Republic of Kenya, Washington D.C., website; Refugee Act, No. 13 of 2006, Kenya Law website; Convention Relating to the Status of Refugees (July 28, 1951), Office of the United Nations High Commissioner for Human Rights website.)
The suit challenged three decisions of the Kenyan government regarding Somali refugees that had been made in May and April 2016. On April 27, 2016, Joseph Nkaisserry, Cabinet Secretary for Interior and Coordination of National Government, revoked the prima facie refugee status of asylum seekers from Somalia on the basis of Kenya’s Refugees Act. (Revocation of Prima Facie Refugee Status, 46 THE KENYA GAZETTE, No. 118 (Apr. 29, 2016), Kenya Law website.) On May 6, 2016, Karanja Kibicho, the Principal Secretary for Interior, issued a statement in which he noted that due to security challenges that refugee camps posed, Kenya would stop hosting refugees, close two major refugee camps (Dadaab and Kakuma), and disband the DRA. (Kenya National Commission on Human Rights & Another v. Attorney General & 3 Others, supra; Kenya: Government Statement on Refugees and Closure of Refugee Camps (May 5, 2016), MinBane website.) Not long after, on May 11, 2016, Nkaissery, citing security and logistical reasons, reaffirmed the plan to go ahead with the closure of the Dadaab camp and established a task force with the mandate to close that camp and repatriate its residents, most of whom are Somalis, back to their home country. (Press Release, Ministry of Interior and Coordination of National Government, Government Statement and Update on the Repatration of Refugees and Scheduled Closure of Dadaab Refugee Camp (May 11, 2016).)
The petitioners alleged that the decision to revoke the prima facie refugee status of Somali asylum seekers, which was issued without regard to country of origin information and the input of stakeholders, was a violation of the fair administration clause of the Kenya Constitution, a provision that accords everyone ”the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” (Kenya National Commission on Human Rights & Another v. Attorney General and 3 Others, supra; The Constitution of Kenya, § 47.) The petitioners also alleged that Kibicho’s decision to disband the DRA, an institution established by an act of Parliament, was beyond his legal authority. (Kenya National Commission on Human Rights & Another v. Attorney General and 3 Others, supra; Refugee Act, § 6.)
Significantly, the petitioners alleged that the closing of the DRA deprives asylum seekers from Somalia and other countries asylum procedures in violation of Kenya’s obligation under international law and the Kenyan Constitution, including the provision on the legislative authority of Parliament. (Kenya National Commission on Human Rights & Another v. Attorney General and 3 Others, supra; The Constitution of Kenya, § 94.) The petitioners further submitted that the closure of camps and forced repatriation of refugees violates various international legal instruments protecting refugees. (Kenya National Commission on Human Rights & Another v. Attorney General and 3 Others, supra.)
- Non-Refoulement Principle
One of the issues that the Court identified was whether the decision of the government to close refugee camps and repatriate Somali refugees to their home country violated the principle of non-refoulement. (Id. ) The Court discussed a number of international and regional instruments enshrining the principle. The Court acknowledged that there are exceptions to the principle, mainly, the permissibility of the return of persons who pose a threat to national security and of certain convicted criminals; however, it noted that the government has not been able to prove its blanket allegation that Somali refugees are a threat to public security and that the camps are breeding grounds for criminal activities. (Id.) The Court stated:
No single arrest or conviction has been cited nor has it been established why a blanket condemnation should be applied to all refugees nor is it clear why the government with its capable and mighty state machinery has not been able to identify any refugees involved in crime and prosecute them instead of mounting a blanket condemnation at the risk of punishing minor children, women and innocent persons. (Id.)
The Court held that the government violated the principle of non-refoulement:
I find no difficulty in concluding as I hereby do, that the government’s decision complained of in this petition violates the principle of non-refoulement and is therefore a breach of international law, international conventions and the country’s obligations under the various conventions to which it’s a signatory and above [all] our constitution. (Id.)
- Right to Fair Administrative Action
The Court also considered the question of whether the government’s decisions violated the constitutional right to fair administrative action. The Court noted that the Fair Administrative Action Act of 2015 elaborates the constitutional right to fair administrative action and stipulates grounds for challenging a particular action. (Id.) The Act states that if an administrator is preparing to take an action that “is likely to adversely affect the rights or fundamental freedoms of any person,” the administrator must, among other things, provide “prior and adequate notice,” an opportunity to be heard, notice of the right of review and appeal, reasons for taking the administrative action and all the relevant material, and notice of the right to legal representation. (Fair Administrative Action Act, No. 4 of 2015, §§ 4 & 6 (May 27, 2015), Kenya Law website.) The Court held that the decisions of the government had violated the fair administrative action clause of the Constitution (article 47) as well as the Fair Administrative Action Act and stated that hence the decisions are ultra vires, null and void.” (Kenya National Commission on Human Rights & Another v. Attorney General and 3 Others, supra.)
- Violation of Somalis’ Rights
The Court further considered the issue of whether the government’s decision to revoke the prima facie refugee status of Somalis and the decision for their mass repatriation violated their rights under the Kenyan Constitution. The Court noted that the best way to determine whether the government’s decision is justified is by ascertaining whether it is proportionate. To ascertain the proportionality of the decision, the Court outlined a four-prong test, developed by a number of authors, under which a limitation would be permissible. These four prongs are:
[if] (i) [the limitation] is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right. (Id.)
The Court found that the government’s decision failed to meet the proportionality test and was contrary to rights guaranteed to the petitioners under the Kenyan Constitution and regional and international instruments.
- Disbandment of the DRA
In reviewing the legality of the government’s action to disband the DRA, the Court, citing section 6 of the 2006 Refugee Act that established the DRA, noted:
Clearly, the Department of Refugee Affairs is established under an act of parliament. It is a creation of a statute and in my view it can only be disbanded by amending the law. A public body continues to exist so long as the founding instrument remains in force. Abolishing a body established by or under statute will generally require legislation. It follows from this that a statutory body cannot be dissolved by executive action.
The Court held that Kibicho has “no powers at all to disband a body created by an act of parliament, and consequently, … [he] has acted outside his powers, (ultra vires) hence the said decision is null and void.” (Id.)
Previous Attempts to Reduce the Number of Refugees
In 2014 Kenya attempted to amend the 2006 Refugees Act in order to dramatically reduce the number of refugees and asylum seekers in the country through mandatory repatriation. The amending provision stated:
16A. (1) The number of refugees and asylum seekers permitted to stay in Kenya shall not exceed one hundred and fifty thousand persons.
(2) The National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya.
(3) Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding six months only.
(4) The National Assembly may review the period of variation for a further six months. (Security Laws (Amendment) Act No. 19 of 2014, § 48, KENYA GAZETTES SUPPLEMENT (Dec. 22, 2014), Kenya Law website.)
In response to a petition challenging its legality, on February 25, 2015, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found that this particular provision was “unconstitutional, and therefore null and void.” (Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others  para. 427 eKLR, Kenya Law website.) The Court noted that placing a cap on the number of refugees and asylum seekers that may be present in Kenya would invariably result in the expulsion of hundreds of thousands of refugees and “violate the principle of non refoulment [sic], which is a part of the law of Kenya and is underpinned by the Constitution.” (Id.)
On April 16, 2015, Kenya once again announced plans to close the Dadaab complex immediately and have its residents, repatriated to their home country. (Hanibal Goitom, Kenya: Proposal to Forcefully Repatriate Somali Refugees, GLOBAL LEGAL MONITOR (Apr. 2, 2015).) Kenya reportedly suspended that plan following an international outcry. (Hanibal Goitom, Refugee Law and Policy: Kenya, LAW LIBRARY OF CONGRESS (Mar. 2016).)