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Understanding Kenya's refugee policy

By James Milner,
Trudeau Scholar

On January 3rd, Kenya closed its border with Somalia and expelled some 400 asylum seekers. According to Kenya's Minister of Foreign Affairs Raphael Tuju, the border was closed to prevent the Union of Islamic Courts from escaping into Kenya, thereby preventing a regionalization of the conflict and a threat to Kenyan security.

The decision was criticized by the United Nations and human rights organizations. Within hours of the border closure, the United Nations High Commissioner for Refugees (UNHCR) said that while Kenya has a right to ensure its security, it also "has a humanitarian obligation to allow civilians at risk to seek asylum on its territory."

The UNHCR was right to question Kenya's decision, but the balance between national security and refugee protection is not always that simple, and a rush to judgment is not always the best response.

The Universal Declaration of Human Rights states that everyone has "the right to seek and to enjoy in other countries asylum from persecution," and international refugee law states that no country shall return a refugee to a country where "his life or freedom would be threatened."

The UNHCR Refugee Committee of Daghaley Camp, Kenya

But the authors of these agreements understood that refugee movements can have security implications, and there is consequently a delicate balance between the protection needs of refugees and the security needs of states.

Kenya has confronted a number of legitimate security concerns since the collapse of a functioning Somali state in 1991. The Kenya/Somali border is a notoriously violent region, with a significant flow of contraband weapons. Kenya has also twice been the victim of significant terrorist attacks – in 1998 and 2002 on Nairobi and Mombasa – allegedly the work of elements in Somalia with links to Al Qaeda. The absence of a central government in Somalia has made it almost impossible for Kenya to effectively address these sources of insecurity.

Kenya has also faced a massive refugee challenge. Kenya opened its borders to some 430,000 refugees in 1991 and 1992, and continues to host approximately 150,000 Somali refugees. Dwindling donor support for these refugees in recent years has led to dramatic reductions in food, shelter and medical assistance. These hardships were compounded in November last year when flooding left thousands of refugees homeless, and humanitarian agencies struggling to cope.

Some efforts have been made to help Kenya host so many refugees in such insecure conditions. UNHCR, local non-governmental organizations and some donors have assisted the local community in refugee populated areas, mitigated the environmental impact of hosting refugees, and improved security within refugee camps. As a result, the level of violent crime within the camps has fallen almost ten-fold: from more than 300 instances of rape, murder and armed robbery in the camps in 1998 to 36 in 2003.

But basic support to the refugee program remains sporadic, and Kenya has received little, if any, support to improve security on the border. As a result, Kenya feels that it is facing an unending problem of refugees and insecurity, and that it is facing this challenge alone.

As argued by Tuju: "Kenyans are overburdened, in fact Europe and America does not give us enough aid to support these refugees – other nations should also take the burden."

Against this backdrop, Kenya's decision to close its border and prevent a further spillover of the war in Somalia should not come as a surprise.

Kenya's refugee policy is far from perfect. It insists that refugees be contained in isolated and insecure camps and has largely abdicated responsibility for refugees to UNHCR. But it has recently adopted national refugee legislation, after 15 years of debate, and continues to host some of the most complex and protracted refugee situations in Africa.

On January 4th, Kenya officially responded to criticisms from UNHCR and others. The statement recognized Kenya's obligations under international law to protect refugees, and proposed a two-stage response to the crisis: deploy a fact-finding mission to determine the protection situation on the Somali side of the border; and establish a processing centre to determine the status of individuals seeking asylum.

James Milner on site with the Committee members

The statement also called for a relationship between Kenya, the United Nations and donor countries based on "mutual respect and constructive engagement." This is a reasonable request.

If Western donors want Kenya and other African states to pursue more open asylum policies, they should do more to share the burden of hosting refugees, co-operate to find an appropriate balance between the protection needs of refugees and host-state security concerns, and, most importantly, find solutions to the chronic and forgotten refugee situations that exist in all regions of Africa.

Canada has started to take a lead in this area. In October 2006, during a meeting of UNHCR's executive committee in Geneva, Canada called on UNHCR to make the resolution of protracted refugee situations, like the Somalis in Kenya, a greater priority.

Canada has also been a leader in providing targeted and timely assistance to Kenya, contributing just under $10 million since January 2006 to assist Somali refugees, including some $1.35 million in response to the recent flooding.

This is a modest but important start. Canada should play its role as a leader in the humanitarian community to rally other donors to the cause, and to keep the international community focused on the problem of protracted refugee situations, long after they have passed from the headlines. In these trying times, Kenya should be supported, not condemned, and Canada should be congratulated for showing leadership, and encouraged to do more.

James Milner is a post-doctoral Fellow at the Munk Centre for International Studies, University of Toronto, and co-director of The PRS Project: Towards Solutions for Protracted Refugee Situations, University of Oxford.

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All photos of the Daghaley camp by James Milner.
Originally published in the Toronto Star of January 10, 2007