MOUNT KENYA UNIVERSITY
PARKLANDS LAW CAMPUS
INTERNATIONAL REFUGEE LAW
SUBMITTED BY: JEFFERSON MWITI
REG NO: BLAW/2021/81655
SUBMITED TO: F MOYOMBA
DATE: 06/11/2023
RIGHTS AND DUTIES OF REFUGEES
Meaning of refugee
Refugee Act No. 13 of 2006
Refugee is defined under section 3(1) of the Refugees Act Number 13 of 2006 to mean, section
3(1) A person shall be a statutory refugee for the purposes of this Act if such person;
(a) owing to a well-founded fear of being persecuted for reasons of race, religion, sex,
nationality, membership of a particular social group or political opinion is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country.
(b) not having a nationality and being outside the country of his former habitual
residence, is unable or, owing to a well-founded fear of being persecuted for any of the aforesaid
reasons is unwilling, to return to it.
Section 2 of the Act provides for the prima facie refugee where the Act states that a person shall
be a prima facie refugee for purposes of this Act if such person owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in any part or whole
of his country of origin or nationality is compelled to leave his place of habitual residence in
order to seek refuge in another place outside his country of origin or nationality.
National Assembly Bill of 2019
The New Bill of 2019 also provides for the definition of a refugee under section 3 (1) of the
National Assembly Bill of 2019 which states that (1) A person shall be a refugee for the purposes
of this Act if such person;
(a) Being outside of his or her country of nationality and owing to a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion who is in Kenya and is unable or, owing to such fear, is unwilling to
avail himself or herself of the protection of his or country of nationality or the country of
habitual residence.
(b) Not having a nationality and being outside the country of his or her former habitual
residence owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, who is in Kenya and is
unable or, owing to such fear, unwilling to return to the country of his or her habitual residence.
(c) Owing to external aggression, occupation, foreign domination or events seriously
disturbing public order in any part or whole of his or her country of origin or nationality is
compelled to leave his or her place of habitual residence in order to seek refuge in another place
outside his or her country of origin or nationality; or
The 1969 Organization of African Union Convention
The convention defines a refugee under Article 1 (1) to mean every person who, owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not
having a nationality and being outside the country of his former habitual residence as a result of
such events, is unable or, owing to such fear, is unwilling to return to it.
Article 1 (2) of the Convention, term refuge shall also apply to every person who, owing to
external aggression, occupation, foreign domination or events seriously disturbing public order
in either part or the whole of his country of origin or nationality, is compelled to leave his place
of habitual residence in order to seek refuge in another place outside his country of origin or
nationality.
RIGHTS OF THE REFUGEES
Constitution
The constitution is the supreme law that binds all states organs and its citizens. The Constitution
provides for the rights of the individuals who are the citizens of the Republic of Kenya under
Chapter IV the Bill of Rights.
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Right to life
Article 26 provides of the Constitution provides for the right to life where it state that every
person has a right to life Article 26(1). Article 26 (3), state that a person shall not be deprived of
life intentionally, except the extent authorized by this Constitution of other written law. This
right is also accorded to the refugees who are in the Republic of Kenya. They enjoy and benefit
the same rights with the Kenya citizens.
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Equality and freedom from discrimination.
Article 27 of the Constitution provides for the equality and freedom from discrimination. Subsection 1 provides that every person is equal before the law and has the right to equal protection
and equal benefit of the law. The state shall also not discriminate directly or indirectly against
any person on any grounds which include, race, sex, pregnancy, marital, status, health status,
ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language
or birth, this provide for under sub- section 4 of the same Article.
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Human dignity.
Every human dignity must be well respected by everyone without discriminating others. The
Constitution under article 28 provides for human dignity to be respected and well protected.
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Freedom and security of the person.
Article 29 of the Constitution provides for the for the freedom and security of the person, which
includes the right to be deprived of freedom arbitrarily or without just cause, detained without
trial, except during a state of emergency, subjected to any form of violence from either public or
private sources, subjected to torture in any manner, whether physical or psychological, subjected
to corporal punishment and treated or punished in a cruel, inhuman or degrading manner.
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Slavery, servitude and forced labour
The constitution provide for the right of slavery, servitude and forced labour under Article 30
where a person shall not be held in slavery or servitude and also shall not be required to perform
forced labour.
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Freedom of movement and residence.
Every person has a right to freedom of movement and residence under Article 39 (3) to enter,
remain in and reside anywhere in Kenya.
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Protection of right to property.
The right to protection of property is provided for under Article 40 of the Constitution. Sub section 1 state that subject to Article 65, every person has the right, either individually or in
association with others, to acquire and own property.
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Labour relations.
The constitution provides for right to labour relations that every person has the right to fair
labour practices under Article 41(1). Sub – section 2 goes ahead and states the rights which
include fairing remuneration, reasonable working conditions, to form, join or participate in the
activities and programs of trade unions.
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Environment.
The constitution under article 42 provides that every person has the right to a clean and healthy
environment, which includes the right to have the environment protected for the benefit of
present and future generations through legislative and other measures, particularly those
contemplated in Article 69 and to have obligations relating to the environment fulfilled under
Article 70.
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Economic and social rights.
Every person has a right to accessible and adequate housing, and to reasonable standards of
sanitation, to be free from hunger, and to have adequate food of acceptable quality, to clean and
safe water in adequate quantities, to social security and to education. This is provided under
article 43 of the constitution.
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Family.
The family is the natural and fundamental unit of society and the necessary basis of social order,
and shall enjoy the recognition and protection of the State; this is provided under Article 45 of
the constitution.
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Fair administrative action.
Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair; this is provided for under Article 47 of the constitution.
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Access to justice.
Article 48 provides for that state shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice.
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Fair hearing.
Article 50 provide that every person has the right to have any dispute that can be resolved by the
application of law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.
Refugees Act No 3 of 2006
Section 16 of the refugees act provides for the rights and duties of refugees in Kenya
(1) Subject to this Act, every recognized refugee and every member of his family in
Kenya,
(a) Shall be entitled to the rights and be subject to the obligations contained in the
international conventions to which Kenya is party;
(b) Shall be subject to all laws in force in Kenya.
(2) The Minister may, by notice in the Gazette, in consultation with the host community,
designate places and areas in Kenya to be,
(a) Transit centers for the purposes of temporarily accommodating persons who have
applied for recognition as refugees or members of the refugees’ families while their applications
for refugee status are being processed.
(b) Refugee camps.
(3) The designated areas provided for in subsection (2) shall be maintained and managed in an
environmentally sound manner.
(4) Subject to this Act, every refugee and member of his family in Kenya shall, in respect of
wage-earning employment, be subject to the same restrictions as are imposed on persons who are
not citizens of Kenya.
Right non – refoulment.
Section 18 provides for non-return of refugees, their families or other person.
No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any
other country or to subjected any similar measure if, as a result of such refusal, expulsion, return
or other measure, such person is compelled to return to or remain in a country where,
(a) The person may be subject to persecution on account of race, religion, nationality,
membership of a particular social group or political opinion; or
(b) The person’s life, physical integrity or liberty would be threatened on account of external
aggression, occupation, foreign domination or events seriously disturbing public order in part or
the whole of that country.
National Assembly Bill of 2019
Section 28 Bill 2919 provides that subject to this Act, every refugee and every asylum seeker
within Kenya shall be entitled to the rights and be subject,
(a) To the duties contained in the UN Convention, its Protocol and the OAU Convention;
and
(b) All the laws in force in Kenya.
(2) The Cabinet Secretary may, by notice in the Gazette and in consultation with the relevant
county governments, designate specific counties to host refugees.
(3) The Cabinet Secretary may, by notice in the Gazette, designate places and areas in Kenya to
be transit centers for purposes of temporarily accommodating refugees.
(4) Subject to this Act, refugees shall be enabled to contribute to the economic and social
development of Kenya by facilitating access to, and issuance of, the required documentation at
both levels of Government.
Right to non – refoulment
Section 29(1) No person shall be refused entry into Kenya, expelled, extradited from Kenya or
returned to any other country or be subjected to any similar measure if, as a result of such
refusal, expulsion, return or other measure, such person is compelled to, return to or remain in a
country where,
(a) The person may be subject to persecution on account of race, religion, nationality,
membership of a particular social group or political opinion.
(b) The person's life, physical integrity or liberty would be threatened on account of external
aggression, occupation, foreign domination or events seriously disturbing public order in part or
whole of that country.
International law
Supremacy of this constitution.
Article 2(5) the general rules of international law shall form part of the law of Kenya and article
2(6) any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
Constitution.
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1951 Conventions Relating to the Status of Refugees and Its Protocol of 1967
The 1951 Convention contains a number of rights and also highlights the obligations of refugees
towards their host country. The cornerstone of the 1951 Convention is the principle of nonrefoulement contained in Article 33. According to this principle, a refugee should not be returned
to a country where he or she faces serious threats to his or her life or freedom. This protection
may not be claimed by refugees who are reasonably regarded as a danger to the security of the
country, or having been convicted of a particularly serious crime, are considered a danger to the
community.
Some basic rights, including the right to be protected from refoulement, apply to all refugees. A
refugee becomes entitled to other rights the longer they remain in the host country, which is
based on the recognition that the longer they remain as refugees, the more rights they need.
The 1967 Protocol broadens the applicability of the 1951 Convention. The 1967 Protocol
removes the geographical and time limits that were part of the 1951 Convention. These limits
initially restricted the Convention to persons who became refugees due to events occurring in
Europe before 1 January 1951.
Article 3 of the Convention provides for the right to non – discrimination which states that the
contracting state shall apply the provisions of this convention to refugees without discrimination
as to race, religion, or country of origin.
Article 4 of the convention provides for the right to religion which states that the contracting
state shall accord to refugees within their territories treatment at least as favorable as that
accorded to their nationals with respect to freedom to practice their religion and freedom as
regards the religious education of their children.
Article 5 of the convention provides for the right granted a part from the convention. It states that
nothing in this convention shall be deemed to impair any rights and benefits granted by
contracting states to refugees a part from this convention.
Article 13 of the convention provides for the right to own movable and immovable property
where refugees who are regular residents of the hosting country can own movable and
immovable property.
Article 14 provided for artistic rights and industrial property
In respect of the protection of industrial property, such as inventions, designs or models,
trademarks, trade names, and of rights in literacy, artistic and scientific works, a refugee shall be
accorded in the country in which he has his habitual residence the same protection as is accorded
to nationals of that country. In the territory of any other Contracting State, he shall be accorded
the same protection as is accorded in that territory to nationals of the country in which he has his
habitual
residence.
Meaning that in respect of industrial and intellectual property such as copyright, industrial
property, patents, licenses, trademarks, designs and models, trade names, refugees shall enjoy the
most favorable treatment accorded to nationals of foreign countries.
Article 15 provide for right of association
As regards non-political and non-profit-making associations and trade unions the Contracting
States shall accord to refugees lawfully staying in their territory the most favorable treatment
accorded to nationals of a foreign country, in the same circumstances. This means that refugees
shall have the right to join non-profit-making associations and non – political organization,
including trade unions.
Article 16 provide for access to courts
A refugee shall have free access to the courts of law on the territory of all Contracting States. A
refugee shall enjoy in the Contracting State in which he has his habitual residence the same
treatments a national in matters pertaining to access to the Courts, including legal assistance and
exemption from caution judicatum solvi.
A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that
in which he has his habitual residence the treatment granted to a national of the country of his
habitual
residence.
Refugees shall have, in the territories of High Contracting Parties, free access to the courts of
law.
Article 17 provides for wage-earning employment
The Contracting States shall accord to refugees lawfully staying in their territory the most
favorable treatment accorded to nationals of a foreign country in the same circumstances, as
regards the right to engage in wage-earning employment.
In any case, restrictive measures imposed on aliens or the employment of aliens for the
protection of the national labour market shall not be applied to a refugee who was already
exempt from them at the date of entry into force of this Convention for the Contracting State
concerned, or who fulfils one of the following conditions:
(a) He has completed three years' residence in the country;
(b) He has a spouse possessing the nationality of the country of residence. A refugee may not
invoke the benefits of this provision if he has abandoned his spouse.
(c) He has one or more children possessing the nationality of the country of residence.
Article 18 provides for self - employment
The Contracting States shall accord to a refugee lawfully in their territory treatment as favorable
as possible and, in any event, not less favorable than that accorded to aliens generally in the same
circumstances, as regards the right to engage on his own account in agriculture, industry,
handicrafts and commerce and to establish commercial and industrial companies.
It should be noted that a certain number of refugees are handicraft workers with special
knowledge and occupational skills or manufacturers familiar with manufacturing processes
peculiar to their country of origin. There are two possibilities:
The first would be to offer refugees the most favorable treatment given to foreigners by virtue of
treaties.
The second would be to given refugees the treatment given to foreigners generally. It will be for
the Committee to decide between the two possibilities.
Article 20 provides for rationing
Where a rationing system exists, which applies to the population at large and regulates the
general distribution of products in short supply, refugees shall be accorded the same treatment as
nationals. Where it exists, rationing is intended to ensure that the inhabitants of a country receive
some items of prime necessity. It is therefore essential that refugees should be admitted to the
benefits of the rationing system.
Article 21 provides for housing
As regards housing, the Contracting States, in so far as the matter is regulated by law or
regulations or is subject to the control of public authorities, shall accord to refugees lawfully
staying in their territory treatment as favorable as possible and, in any event, not less favorable
than that accorded to aliens generally in the same circumstances. It relates to rent control and
allocation of flats and premises to the refugees.
Article 22 provides for public education
The Contracting States shall accord to refugees the same treatment as is accorded to nationals
with respect to elementary education. The Contracting States shall accord to refugees treatment
as favorable as possible, and, in any event, not less favorable than that accorded to aliens
generally in the same circumstances, with respect to education other than elementary education
and, in particular, as regards access to studies, the recognition of foreign school certificates,
diplomas and degrees, the remission of fees and charges and the award of scholarships.
Elementary education is to be provided for refugees in the same manner as for nationals, because
elementary education satisfies an urgent need (it is for this reason that most States have made it
compulsory), and because schools are the most rapid and effective instrument of assimilation.
This is pursuant to Article 26 of the Declaration of Human Rights lays down that: (1) everyone
has the right to education. Education shall be free, at least in the elementary and fundamental
stages. Elementary education shall be compulsory.
Article 24 provides for labour legislation and social security
The Contracting States shall accord to refugees lawfully staying in their territory the same
treatment as is accorded to nationals in respect of the following matters:
(a) In so far as such matters are governed by laws or regulations or are subject to the
control of administrative authorities: remuneration, including family allowances where these
form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions
on home work, minimum age of employment, apprenticeship and training, women's work and
the work of young persons, and the enjoyment of the benefits of collective bargaining;
(b) Social security (legal provisions in respect of employment injury, occupational
diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities
and any other contingency which, according to national laws or regulations, is covered by a
social security scheme), subject to the following limitations:
Article 25 provides for administrative assistance
When the exercise of a right by a refugee would normally require the assistance of authorities of
a foreign country to whom he cannot have recourse, the Contracting States in whose territory he
is residing shall arrange that such assistance be afforded to him by their own authorities or by an
international authority.
The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under
their supervision to refugees such documents or certifications as would normally be delivered to
aliens by or through their national authorities.
Documents or certifications so delivered shall stand in the stead of the official instruments
delivered to aliens by or through their national authorities, and shall be given credence in the
absence of proof to the contrary.
Subject to such exceptional treatment as may be granted to indigent persons, fees may be
charged for the services mentioned herein, but such fees shall be moderate and commensurate
with those charged to nationals for similar services.
Article 26 provides for freedom of movement
Each Contracting State shall accord to refugees lawfully in its territory the right to choose their
place of residence and to move freely within its territory, subject to any regulations applicable to
aliens generally in the same circumstances.
Article 27 provides for identity papers
The Contracting States shall issue identity papers to any refugee in their territory who does not
possess a valid travel document. It is the practice to issue identity papers, under various
designations, which serve both as identity card and as residence permit.
Article 28 provides for travel documents
The Contracting States shall issue to refugees lawfully staying in their territory travel documents
for the purpose of travel outside their territory unless compelling reasons of national security or
public order otherwise require, and the provisions of the Schedule to this Convention shall apply
with respect to such documents.
The contracting States may issue such a travel document to any other refugee in their territory;
they shall in particular give sympathetic consideration to the issue of such a travel document to
refugees in their territory who are unable to obtain a travel document from the country of their
lawful residence. Travel documents issued to refugees under previous international agreements
by parties thereto shall be recognized and treated by the Contracting States in the same way as if
they had been issued pursuant to this Article.
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1969 OAU Convention Governing the Specific Aspects of Refugees Problem in
Africa
Article 4 provides for non-discrimination
Member States undertake to apply the provisions of this Convention to all refugees without
discrimination as to race, religion, and nationality, membership of a particular social group or
political opinions.
Article 6 provides for the travel documents
Subject to Article III, Member States shall issue to refugees lawfully staying in their territories
travel documents in accordance with the United Nations Convention relating to the Status of
Refugees and the Schedule and Annex thereto, for the purpose of travel outside their territory,
unless compelling reasons of national security or public order otherwise require. Member States
may issue such a travel document to any other refugee in their territory.
Other international laws
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1976 International Convention on Civil and Political Rights (1976 ICCPR)
Article 6 (1) provides that every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
Article 7, provides that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
Article 8 (1) provides that no one shall be held in slavery; slavery and the slave-trade in all their
forms shall be prohibited. Sub – section 2 no one shall be held in servitude.
Article 10 (1) provides that all persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person.
Article 14 (1) provides that all persons shall be equal before the courts and tribunals.
Article 23 (1) provides that the family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
Article 26 provides that all persons are equal before the law and are entitled without any
discrimination to the equal protection of the law.
Article 27 provides that in those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practice their own religion, or
to use their own language.
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1976 International Covenant on Economic, Social and Cultural Rights
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Article 7 right to work
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Article 9 social security e.g. health
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Article 11 family, housing
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Article 12 physical & mental health
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Article 13 education
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Article 15 culture
1948 Universal Declaration of Human Rights
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Article 1 human dignity
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Article 2 non- discrimination
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Article 3 right to life, liberty and security of person
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Article 4 no one shall be held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms.
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Article 5 no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
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Article 8 everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution
or by law.
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Article 10 everyone is entitled in full equality to a fair and public hearing.
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Article 14 freedom of movement.
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Article 22 right to social security
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Article 23 right to work
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Article 25 right to health
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Article 26 right to education
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Article 27 cultural rights.
2. Duties and obligations of the refugees to the hosting nations.
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The 1951 convention through the ad hoc committee on statelessness and related
problems, states reserved the right to prohibit political activity on the part of refugee. It
therefore stated that refugees had an obligation to refrain political activities.
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The refugees have the obligation to respect the cultural se up of the hosting community.
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The refugees also have the duty to obey the law; this is provided under section 16 of the
Refugee Act No 13 of 2006 and Section 28 of the National Assembly Bill of 2019.
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The refugees also have the obligations to maintain the environment in a good condition
under section 16 of the Refugees Act read together with Article 70 of the Constitution.
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The refugees also have the obligation to give the correct information during interview to
the officer in charge; this is under Section 40 (a) & (b) of the National Assembly Bill
2019.
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The refugees has the obligation to report after entering the hosting country within the
period set out under section 40(b) of the National Assembly Bill 2019. The refugees have
the obligation to abide by the guidelines issued by UNHCR and as instructed by the
refugee camp administration under UNHCR.
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The refugees have the duty to reside in the designated refugee camps unless otherwise
authorized by the administration of the camp.
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The refugees have the duty to return home once the events or factors or circumstances
that led them to flee have been addressed and resolved. This is according to Mathew
Gibney.
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Obligation to cooperate with the hosting nation authorities in case of any transfer from
one camp to another.
Case Laws
NATIONAL CASE LAWS(KENYA)
1. Criminal Revision No. 334 of 2011
Mohamed Sirajesh Mohamed a Somali origin, on 6th November was arrested on his way to
Kajiado because he was found to have no travel documents. He was charged with offences under
section 53(1) as read with section 53(2) of Citizenship & Immigration Act. Pleaded guilty and
convicted on his own plea of guilty and sentenced to a fine of Kshs. 200,000/= or in default to
serve 1 year imprisonment. He aggrieved by the conviction and sentence a foresaid, through
Kituo Cha Sheria provided legal services on the instructions of UNHCR. Kituo Cha Sheria
argued that the court to invoke its revision jurisdiction pursuant to section 364 (1) & 354(1) of
the CPC and either quash or set aside the conviction & sentence imposed on the applicant.
This was on the ground that the applicant had shared his intention with UNHCR for recognition
as a refugee hence his repatriation offends section 18 of the Refugee Act as well as the settled
non – refoulment principle of international law.
The court held that the applicant has since become a person of concern by UNHCR. Therefore,
the court ordered that he applicant be handed over to UNHCR once he pays the fine or serves the
default sentence.
2. Petition 19 & 115 of 2013
Issued raised in the consolidated petitions concern the nature & extent of the rights and
fundamental freedoms of refugees residing in urban areas in Kenya. The government of Kenya
issued a press statement for the closure of all registration centers and stop reception in urban
areas. The Provincial Administration and Internal Security wrote to the Permanent Secretary
Ministry of Special Programs of relocation of urban refugees to officially designate camps.
Kituo Cha Sheria argued that the government violated the various provisions of the Constitution,
Article 28 right to dignity, Article 39 freedom of movement, Article 27 arbitrary &
discriminatory actions and Article 47 fair administration action. Petitioner also contends that that
the action taken by the State is a violation of Kenya’s international obligation under the 1951 UN
Refugee Convention which has been domesticated by the Refugees Act 2006 and the
International Convention on Civil and Political Rights (ICCPR).
Respondent argued that establishment of urban registration centers has no basis in the Refugees
Act, 2006. Respondent stated that its policy was based on the realization that most refugees in
urban areas are not registered or were evading registration and that those who had been
registered at the refugee campus had been issued with time – restricted movement passes have
not gone back to camps or renewed them thus violating the terms of issues.
The court held that State directive was a threat to the petitioners’ fundamental rights and freedom
that were mentioned. The court also found that there was also a threat to non – refoulment
principle incorporated by section 18 of the Refugee Act 2006. The court also the actions of the
State had violated the responsibility of the State towards person in a vulnerable situations.
Therefore the state directive was quashed by the court.
3.Petition number 382 of 2014
Refugee consortium of Kenya 1st Petitioner, NT suing on behalf of DL(who is a minor) &
48 others v A.G
1st respondent, CS – Interior & Coordination of National Government,
3rd Respondent, Commissioner for refugee affairs.
In this case the petitioners wanted the court to have the Refugees who had been separated from
their children be reunited. The refugees were removed from Karasani and taken to Daadab
refugee camp but left their children at home in Karasani Nairobi without anyone to take care of
them. They were relocated to the camp despite having valid document. The court overturned this
decision terming it a contravention of Article 53 (2) (d) of the Constitution in respect of the 48
children.
4. Kituo cha Sheria & 8 others v Attorney General
In this case a government directive requiring refugees to return to refugee camps was rendered
an infringement of the petitioner rights. The court stated that the policy also has an effect on
other fundamental rights and freedoms of the petitioners such as the right to work enshrined in
various international human rights instruments such as the UDHR (Article 23), the ICCPR
(Article 6) and the African Charter (Article 15) and also a recognized right in the 1951
Convention relating to the Status of Refugees. One of the petitioner was a law lecture in Nairobi.
He was living a dignified life minimizing dependence on the State and his encampment would
obviously lead to loss of his livelihood, his right to work and consequently his right to dignity.
5.Kenya National Commission on Human Rights & another v Attorney General & 3 others
where Justice Mativo opined that:
“The principle of non-refoulement is the cornerstone of asylum and of international
refugee law. Flowing from the right to seek and to enjoy in other countries asylum from
persecution, as set forth in Article 14 of the Universal Declaration of Human Rights, this
principle reflects the commitment of the international community to ensure to all persons
the enjoyment of human rights, including the rights to life, to freedom from torture or
cruel, inhuman or degrading treatment or punishment, and to liberty and security of the
person.
These and other rights are threatened when a refugee is returned to persecution or
danger. In fact, the observance of the principle of non-refoulement is intrinsically linked
to the determination of refugee status.”
6. Mohammed Jijo wako v Cabinet Secretary of Interior & 4 others. (2019)
This case concerned the rights of refugees in Kenya, and the court ruled that refugees
should be treated with dignity and respect, have access to eduacation and healthcare, and
enjoy the right to work. The case reinforced the importance of respecting the rights of
refugeesunder Kenyan law.
REGIONAL CASES(AFRICAN UNION)
1. COMMUNICATION NO/2003; Institute for human rights and Development in
Africa V Republic of Angola(2006):
Although not specifically focused on refugees, this case from the A frican commission on
hiuman and peoples rights underscores the importance of protecting the rights of
displaced persons, including refugees under the african charter on human and peoples
rights. It highlights the obligation of states to provide protection to individuals, including
refugees within their jurisdiction.
INTERNATIONAL CASE LAWS(International Courts)
1. M.A V Director of Immigration(2013)- A case in South Africa that empasized the
importance of the princple of Non-refoulment and the need to assess the individual risk
faced by a refugee before any return.
2. M.S.S V Belgium and Greece(2011)- A case before the European court of Human
rights that addressed the principle of Non-refoulment and the responsibility of states in
the European union in protecting the rights of asylum-seekers.
3. Sale V Haitian Centres Council, Inc (1993)- A case before the United States
Supreme Court involving Hitian asylum- seekers. It explored the rights of regugees to
seek asylum and the U.S "safe third country" agreement with other countries.
4. R (on the application of) ABC (a HYPERLINK
"http://www.asylumlawdatabase.eu/sites/asylumlawdatabase.eu/files/aldfiles/UK_051%
20Judgment.pdf"minor) (Afghanistan) v. Sec’y of State for the Home HYPERLINK
"http://www.asylumlawdatabase.eu/sites/asylumlawdatabase.eu/files/aldfiles/UK_051%2
0Judgment.pdf"Dep’tHYPERLINK
"http://www.asylumlawdatabase.eu/sites/asylumlawdatabase.eu/files/aldfiles/UK_051%2
0Judgment.pdf" - In this case the claimant 16-year-old asylum seeker (X) applied for
judicial review of the defendant secretary of state's refusal to grant him asylum and
humanitarian protection. X was from Afghanistan and had arrived in the United Kingdom
when he was 14. He claimed asylum on the basis of a fear of persecution from his family
after he had unintentionally killed his half-brother during an altercation. The secretary of
state refused X's asylum claim on the ground that he had committed a serious crime,
although he did accept that the killing had been accidental. The Court upheld the
principle of non-refoulment, the Secretary of State for the Home Department had erred in
refusing humanitarian protection to a 16-year-old asylum seeker on the basis that there
were serious reasons for believing that he had committed a serious crime abroad. She had
ignored the broad tapestry of factors which had to be examined, including the welfare of
the child. The court advised that the child be offered protection as opposed to being
sent back to Afghanistan where her right to freedom would be denied.
4. FUNDAMENTAL PRINCIPLES OF NONREFOULEMENT
REFOULEMENT- This is the act of forcing a refugee or asylum seeker to return to a country
or territory where he or she is likely to face persecution. Expulsion or return of a refugee from
one state to another.
HISTORY
The principle of non-refoulement arises out of an international collective memory of the failure
of nations during World War II to provide a safe haven to refugees fleeing certain genocide at
the hands of the Nazi regime. During the war, several states had forcibly returned or denied
admission to German and French Jews fleeing the Holocaust on May 27, 1939. After the war,
millions of refugees and prisoners from the Soviet Union were forcibly returned despite
concerns they would face retaliation from the Soviet government.
In the 1960s, the European Commission on Human Rights recognized non-refoulement as a
subsidiary of prohibitions on torture. As the ban on torture is jus cogens, this linkage rendered
the prohibition on refoulement absolute and challenged the legality of refoulement for the
purposes of state security.
APPLICATION OF NON-REFOULMENT PRINCIPLE
In 1951, the Convention Relating to the Status of Refugees1 brought the concept of nonrefoulement into public discourse. The protection against refoulement under Article 33(1)
applies to any person who is a refugee under the terms of the 1951 Convention, that is, anyone
who meets the requirements of the refugee definition contained in Article 1a (2) of the 1951
Convention.
Over the subsequent 65 years, the principle has become recognized as a cornerstone of
International Refugee Law, and has achieved the status of a non-derogable right of persons
who have fled persecution across an international border.But while non-refoulement is often
understood to be synonymous with refugee protection, the principle is also firmly embedded in
other international legal frameworks whose jurisdiction extends far beyond the refugee sphere.
For example, under international human rights, humanitarian and customary law, it prohibits
States from transferring or removing individuals from their jurisdiction or effective control
when there are substantial grounds for believing that the person would be at risk of irreparable
harm upon return, including persecution, torture, ill-treatment or other serious human rights
violations.
The principle of non-refoulement is of particular relevance to asylum-seekers. As such persons
may be refugees, it is an established principle of international refugee law that they should not
be returned or expelled pending a final determination of their status.
The prohibition of refoulement to a danger of persecution under international refugee law is
applicable to any form of forcible removal, including deportation, expulsion, extradition,
informal transfer or renditions, and non-admission at the border. This is evident from the
wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return
(refoulement) “in any manner whatsoever”.
It applies not only in respect of return to the country of origin or, in the case of a stateless
person, the country of former habitual residence, but also to any other place where a person has
reason to fear threats to his or her life or freedom related to one or more of the grounds set out
in the 1951 Convention, or from where he or she risks being sent to such a risk.
Exceptions to the principle of non-refoulement under the 1951 Convention are permitted only
in the circumstances expressly provided for in Article 33(2), which stipulates that: “The benefit
of Article 33(1) may not, however, be claimed by a refugee whom there are reasonable grounds
for regarding as a danger to the security of the country in which he or she is, or who, having
been convicted by a final judgement of a particularly serious crime, constitutes a danger to the
community of that country.”
CASE LAWS
1. Kenya National Commission on Human Rights v The Attorney General
The facts giving rise to the petition were that, on the 6th day of May, the 4th respondent (Dr.
Karanja Kibicho) issued a directive by way of press release entitled, "Government Statement on
Refugees and Closure of Camps" whose details were that, owing to national security, hosting of
refugees has come to an end and that the Government is working on a mechanism for closure
of the two refugee camps within the shortest time possible.
Among the issues of determination was whether the government's directive violated the
principle of non-refoulement. The judge stated that while the principle of non-refoulement is
basic, it is recognised that there may be certain legitimate exceptions to the principle.
Article 33 Article 33 (2) of the 1951 Convention provides that the benefit of the nonrefoulement principle may not be claimed by a refugee 'whom there are reasonable grounds for
regarding as a danger to the security of the country ... or who, having been convicted by a final
judgement of a particularly serious crime, constitutes a danger to the community of that
country.' This means in essence that refugees can exceptionally be returned on two grounds:•
in case of threat to the national security of the host country; and
•
in case their proven criminal nature and record constitute a danger to the community
The Government failed to prove any convictions made to any refugee whatsoever and therefore
despite the allegations made that the camps were breeding grounds for terrorists. He further
issued multiple directives;
a)A declaration be and is hereby issued decreeing that the directive issued by the
3rd Respondent, namely Major General (RTD) Joseph Nkaissery on the intended repatriation of
refugees and asylum seekers of Somali origin on 10th May 2016 is arbitrary, discriminatory
and indignifying.
b)A declaration be and is hereby issued declaring that the directive issued by the
4th Respondent namely, Dr. (Eng) Karanja Kibicho on the 6th May 2016 disbanding the
Department of Refugee Affairs is ultra vires the 4th Respondents powers and hence null and
void
c)A declaration that the decision of the Government of Kenya to collectively repatriate all
refugees in Dadaab Refugee Camp to the frontiers of their country of origin against their will
violates the principle on non-refoulement as expressed in Article 33 of the 1951 UN
Convention relating to the status of Refugees as well as section 18 of the Refuge Act 2006.
2. Njamba and Balikosa v Sweden 2007
Ms. Njamba and her family were originally from the Democratic Republic of the Congo
(DRC). Ms. Njamba's family relocated where her husband became involved with an armed
militia group. Violence erupted locally, allegedly in response to the activities of Ms. Njamba's
husband, he and three of the couple's children disappeared. Ms. Njamba, believing these
members of her family have been killed, fled to Sweden with her daughter. In Sweden, Ms.
Njamba and her daughter unsuccessfully sought asylum, exhausted the available appeals
mechanisms and submitted a communication to the Committee against Torture alleging that
they faced a risk of torture if returned to the DRC.
The Committee considered Ms. Njamba's claim that the medical resources in the DRC would
be inadequate to treat her for HIV, and the deterioration of her health would constitute torture,
to be inadmissible. Generally speaking, the deterioration of an already existing condition will
not be considered to fall within the definition of torture. The Commission found that Sweden
would, however, violate the rights of Ms. Njamba and her daughter if it returned them to the
DRC. The Committee considered that the situation in the country was such that they would
have faced foreseeable, real and personal risk of torture.
In reaching this conclusion, the Committee placed particular weight on the prevalence of
sexual-violence against women throughout the country. The Committee noted that the
prevalence of such violence was not limited to the areas of the country where conflict was
ongoing, so it would not be possible to identify safe areas of the country for repatriation
3.
R
(on
the
application
of)
ABC
(a
HYPERLINK
"http://www.asylumlawdatabase.eu/sites/asylumlawdatabase.eu/files/aldfiles/UK_051%20
Judgment.pdf"minor) (Afghanistan) v. Sec’y of State for the Home HYPERLINK
"http://www.asylumlawdatabase.eu/sites/asylumlawdatabase.eu/files/aldfiles/UK_051%20
Judgment.pdf"Dep’tHYPERLINK
"http://www.asylumlawdatabase.eu/sites/asylumlawdatabase.eu/files/aldfiles/UK_051%20
Judgment.pdf"
In this case the claimant 16-year-old asylum seeker (X) applied for judicial review of the
defendant secretary of state's refusal to grant him asylum and humanitarian protection. X was
from Afghanistan and had arrived in the United Kingdom when he was 14. He claimed asylum
on the basis of a fear of persecution from his family after he had unintentionally killed his halfbrother during an altercation. The secretary of state refused X's asylum claim on the ground
that he had committed a serious crime, although he did accept that the killing had been
accidental. The Court upheld the principle of non-refoulment, the Secretary of State for the
Home Department had erred in refusing humanitarian protection to a 16-year-old asylum
seeker on the basis that there were serious reasons for believing that he had committed a
serious crime abroad. She had ignored the broad tapestry of factors which had to be examined,
including the welfare of the child. The court advised that the child be offered protection as
opposed to being sent back to Afghanistan where her right to freedom would be denied.
4. India v Badesha 2017 SCC 44; [2017] 2 SCR 127 (8 September 2017)
This decision of the Supreme Court of Canada concerned Canada’s implied non-refoulement
obligations embodied in section 7 of the Canadian Charter which provide ‘at least as great a
level of protection as found in Canada’s international commitments regarding non-refoulement
to torture or other gross human rights violations’. The context was the request for extradition of
two Canadian citizens residing in Canada, who were suspected by the Indian government of
conspiracy to commit murder in relation to an honour killing that occurred in India. The
Canadian Minister of Justice had ordered their surrenders after receiving assurances from India
regarding their treatment if incarcerated, including health, safety, and consular access. The
Court of Appeal concluded that the Minister’s orders were unreasonable and set them aside, but
the Canadian Supreme Court allowed the appeal and restored the Minister’s surrender orders.
5. BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 (31 March 2022)
This case principally concerned an application for a mandatory injunction requiring the
Commonwealth to discharge its duty under section 198 of the Migration Act 1958 (Cth) to
remove BHL19 from Australia as soon as reasonably practicable, and a declaration that the
Commonwealth had failed to discharge this duty (as well as ‘[s]uch other order as the Court
thinks fit’). BHL19 had been in immigration detention for over eight years. The parties agreed
that Australia had protection obligations with respect to BHL19, but the Minister had refused
him a protection visa on character grounds. The parties also agreed that BHL19 fell within
section 198(6) of the Act (as a detained non-citizen whose application for a substantive visa
had been refused) and that, as such, a Commonwealth officer was required to remove him from
Australia as soon as reasonably practicable. The court referred to section 197C(1)–(2) of the
Act and observed that the effect of these provisions – until recently – was that officers were
required to remove an unlawful non-citizen from Australia even if that removal would breach
Australia’s international non-refoulement obligations.
6. Communication 344/07 – George Iyanyori Kajikabi v Arab Republic of Egypt (20
October 2021)
This complaint relates to alleged violations of the African Charter on Human and Peoples’
Rights (African Charter) by Egyptian authorities in their response to refugee and asylum seeker
protesters at the offices of the United Nations High Commissioner for Refugees (UNHCR) in
Cairo, Egypt, in 2005. The protesters included Sudanese asylum seekers and registered
refugees who had gathered for several months at a park near UNHCR’s offices to protest the
conditions of Sudanese seeking refuge in Egypt, including barriers to health, education, and
safe work. According to the complainants, on the night of 29–30 December 2005, after
protesters refused to leave, Egyptian riot police, armed with batons, truncheons, and gas
canisters, entered the park. In the ensuing violence, it is estimated that up to 53 protesters,
including men, women, and children, were either beaten to death by police or crushed in the
stampede. The complainants further alleged that many of the protesters detained by the police
during these events were denied medical treatment, food, and access to information regarding
family members during their detention.
7. ENT19 v Minister for Home Affairs [2020] FCCA 2653 (26 November 2021)
The appellant in this case was a refugee with a well-founded fear of serious harm in Iran for
reason of his religion. Between 2012 and 2013, while waiting in Indonesia for a boat to take
him to Australia, the appellant had unlawfully facilitated the passage of other asylum seekers
from Indonesia to Australia. He was subsequently convicted of smuggling and sentenced to a
term of imprisonment in Australia. Despite the appellant engaging Australia’s international
protection obligations, the Minister for Home Affairs declined to grant him a protection visa,
on the basis that it was not in the national interest to do so. According to the Minister’s reasons,
‘granting a protection visa to a person who has been convicted of people smuggling would send
the wrong signal to people who may be contemplating engaging in similar conduct in the
future, thereby potentially weakening Australia’s border protection regime’. The Minister also
said that granting a protection visa to such a person might ‘erode’ the confidence of the
community in the protection visa programme. There was no evidence to suggest the appellant
posed a security risk to Australia. The court held that the appeal should be allowed because the
Minister failed to consider the legal consequences of his decision, which included indefinite
detention of the appellant and/or his removal to Iran contrary to Australia’s non-refoulement
obligations. Had the Minister considered these legal consequences in his evaluation of the
national interest, then in order to undertake that consideration rationally and reasonably the
Minister was required to assess whether the decision would place Australia in breach of its
international treaty obligations. Having failed to do so, the Minister’s decision was illogical or
irrational. The appeal was allowed and the Minister was ordered to reconsider the appellant’s
application for a protection visa according to law.
8. Canada (Citizenship and Immigration) v Vavilov [2019] SCC 65 (19 December 2019)
The case formed part of a trio of cases (Bell Canada v Canada (Attorney General) [2019] SCC
66) in which the Supreme Court of Canada reconsidered and clarified two aspects of the
standard of review applicable to administrative decisions established in Dunsmuir v New
Brunswick [2008] SCC 2009: (1) the analysis for determining the standard of review; and (2)
guidance on the proper application of the deferential ‘reasonableness’ standard, as distinct from
a non-deferential ‘correctness’ standard. Vavilov is a long and dense judgment that covers wide
terrain. This summary highlights only those aspects of the majority judgment most relevant to
the immigration and refugee context.
5. DISCUSS TRIPARTITE AGREEMENT.
In the context of refugee law, Tripartite Agreements refers to an agreement between three
parties; the host country, the country of origin, and the United Nations High Commissioner for
Refugees (UNHCR). This agreement establishes the legal framework and rensponsibilities for
the protection and assistance of refugees. It typically outlines the rights and obligations of each
party, including provisions for the return of refugees to their home country, resslement in third
country, or local intergration in the host country.
Tripartite agreements aim to ensure coordinated efforts in addressing the needs of refugees and
finding durable solutions for their situation. Here are couple of case studies illustrating the use of
Tripartite agreements:i. Bhutanese Refugees in Nepal; In 1990s, thousands of Bhutanese citizens of Nepali
origin fled to Nepal due to political persecution. A Trepartite agreement was signed
between Bhutan, Nepal and the UNHCR. It outlined the process for voluntary
repatriation of the refugeees to Bhutan, ensuring their safety, dignity, and sustainable
reintegration.
ii. Somali Refugees in Kenya; Kenya has been hosting a large number of Somali refugees
for decades. In 2013, a Tripartite agreement was signed between Kenya, Somali and
UNHCR. It aimed to facilitate the voluntary return of Somali regugees to their home
country, providing them with support and assistance during the repartriation process.
These case studies above demostrate how tripartite agreements can help establish a cooperative
framework for addressing the complex challenges faced by refugees and finding solutions that
prioritize their well being and rights.
6. COMPARE BETWEEN THE UN CONVENTION AND OAU
CONVENTION ON THE PRINCIPLE OF NON-REFOULMENT.
Points of convergence and divergence between the UN Convention and the OAU Convention
(African Union Convention) regarding the principle of non-refoulement:
Points of Convergence:
i.
Non-Refoulement Principle: Both conventions uphold the principle of nonrefoulement, which prohibits the forced return of refugees to a country where they may
face persecution or serious harm.
ii. Protection of Refugees: Both conventions aim to protect the rights and well-being of
refugees, ensuring that they are not returned to situations of danger or persecution.
Points of Divergence:
i.
Regional Focus: The OAU Convention specifically focuses on the African region,
addressing the unique challenges and circumstances faced by refugees within Africa. In
contrast, the UN Convention has a global scope and applies to refugees worldwide.
ii. Expanded Grounds: The OAU Convention expands the grounds for refugee status
beyond those listed in the UN Convention. It includes events seriously disturbing public
order, occupation, and aggression as additional grounds for refugee recognition within
the African context.
iii. Implementation and Ratification: The UN Convention has been widely ratified and
implemented by a large number of countries globally. In comparison, the OAU
Convention has been ratified by fewer African countries, and its implementation varies
across the region.
While both conventions share the fundamental principle of non-refoulement, they differ in their
regional focus, expanded grounds for refugee status, and levels of implementation.
REFERENCES
•
•
Laws
•
Constitution of Kenya 2010
•
Refugee Act No. 13 of 2006
•
National Assembly Bill of 2019
Conventions
•
The 1969 Organization of African Union Convention.
•
1951 Conventions Relating to the Status of Refugees and Its Protocol of 1967.
•
1969 OAU Convention Governing the Specific Aspects of Refugees Problem in
Africa.
•
1976 International Convention on Civil and Political Rights (1976 ICCPR).
•
•
1976 International Covenant on Economic, Social and Cultural Rights.
•
1948 Universal Declaration of Human Rights.
Case laws
•
Criminal Revision No. 334 of 2011
•
Petition 19 & 115 of 2013
•
(Petition number 382 of 2014) Refugee consortium of Kenya 1st Petitioner, NT suing
on behalf of DL(who is a minor) & 48 others v A.G
•
Constitutional Petition No. 227 of 2016
END.