Kenya: Plan to close world’s largest refugee camp ruled ‘unconstitutional’

An aerial view of Dadaab refugee camp, in Kenya. (Photo Credit: Andy Hall/Oxfam)

The Kenyan high court has declared plans to close the world’s largest refugee camp and send more than 300,000 refugees to war-torn Somalia as “unlawful.”

The court found that Joseph Nkaissery, Kenya’s interior cabinet minister, acted beyond his powers in ordering the closure of Dadaab, the world’s biggest refugee camp. The judge, John Mativo, found that the decision to close the camp violated both refugee’s rights and international conventions.

The case, brought to the court by Kituo Cha Sheria, an NGO that provides legal aid to Somali refugees and the Kenya National Commission on Human Rights, found that the closure of the camp,  which would force Somali refugees to return home, would endanger the lives of those returning.

In November, the Kenyan government declared that it would close Dadaab refugee camp in May – a move that was declared illegal by human rights groups at the time.

Human rights groups and NGOs applauded the decision to reverse a directive deemed as “unconstitutional.”

“With today’s ruling that government plans to close the Dadaab refugee camp are unconstitutional, the High Court sent a strong message that at least one of Kenya’s branches of government is still willing to uphold refugee rights,” Laetitia Bader, Africa researcher at Human Rights Watch, said in a statement.

Other rights groups claim that the ruling will give greater security to Somali refugees and prevent further violation of their human rights.

“Today is a historic day for more than a quarter of a million refugees who were at risk of being forcefully returned to Somalia, where they would have been at serious risk of human rights abuses,” Muthoni Wanyeki, Amnesty International’s regional director for East Africa, the Horn and the Great Lakes, said in a statement. “This ruling reaffirms Kenya’s constitutional and international legal obligation to protect people who seek safety from harm and persecution,” she added.

In his ruling, Mativo declared that the Kenyan government had failed to prove that Somalia was safe for returning refugees: “Hence the said decision [to close Dadaab]is null and void.”

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The ruling by the High Court ensures that procedures are in place to stop authorities from forcing refugees to leave under duress.

“This ruling is very important because it creates domestic jurisprudence which strongly affirms Kenya’s obligation to grant asylum to those fleeing persecution; its obligation to ensure those who have sought refuge within its borders are able to enjoy, without discrimination, their human rights,” Michelle Kagari, deputy regional director at Amnesty International, told Humanosphere in an email.

The government had also previously disbanded the Department of Refugee Affairs (DRA), a government body mandated to register and protect refugees, in May last year – a move that rights groups believe put refugees in danger.

“As a direct consequence of that directive, refugees could no longer be registered as the DRA failed to exist and the refugees at the camps faced an imminent danger of repatriation back to their countries of origin which are and were still unstable,” Rucuiya Kimani, legal officer at Kituo Cha Sheria, told Humanosphere in an email comment.

The ruling today asserted that the government should respect the court’s decision to revoke the decision, calling for the government to reinstate the Department of Refugees Affairs.

Government officials, however, said that they will appeal the decision on security grounds, claiming that Dadaab has become a hotspot for Al-Shabab terrorism, a position the Kenyan government has long held as a reason for closing the camp.

“The camp had lost its humanitarian nature and had become a haven for terrorism and other illegal activities,” Kenyan government spokesman Eric Kiraithe said at a news conference after the ruling. “The lives of Kenyans matter. Our interest in this case, and in the closure of Dadaab refugee camp, remains to protect the lives of Kenyans.”

Given the current drought that has caused severe levels of food insecurity in Somalia, as well a continued fighting, Somalia is currently a unsafe destination for returning refugees.

But plans to resettle Somali refugees in the U.S. were canceled after Donald Trump’s travel ban, which particularly targeted Somalis, among other nationalities; some 26,000 refugees living in Kenya are affected by the ban.

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“After months of anxiety because of the camp closure deadline hanging over their heads, increasingly restricted asylum options and the recent U.S. administration suspension of refugee resettlement, the court’s judgement offers Somali refugees a hope that they may still be have a choice other than returning to insecure and drought-ridden Somalia,” Bader said in a statement.

Last weekend 140 Somali refugees – who were on the brink of claiming asylum and settling in the U.S. – were sent back to Dadaab.

Though the ruling halts the closing of Dadaab in May, longer-term questions about the sustainability of the sprawling camp and the future of its inhabitants still remain.

“Stopping the imminent closure of Dadaab refugee camp is an essential first step in respecting and protecting refugee rights in Kenya. Now Kenya and the international community must work towards finding alternative solutions for refugees including local integration options,” Wanyeki said in an Amnesty statement.

Rod Volway, director of refugee operations for CARE International in Kenya agreed, adding that the international community must provide longer-term solutions and increase efforts to resettle Somali refugees in third countries.

“While this provides a temporary solution for the refugees who have worried about the looming closure for almost a year now, it is a call to action for the international community to provide more durable solutions for refugees in Dadaab: including stepping up efforts to resettle them and providing better assistance to those who continue to remain in the camps,” Volway wrote in an email to Humanosphere.

So far, the Kenyan government is unwilling to accept the court ruling, but Kimani and other rights groups remain vigilant in case their victory is repealed.

“The government has not made any assurance in relation to the court ruling … we remain hopeful the government will uphold the rule of law by adhering to the court’s ruling but nonetheless vigilant to ensure future violations are prevented,” Kimani told Humanosphere.

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Charlie Ensor

Charlie Ensor is a Nairobi-based freelance journalist, focusing on refugee rights, development and humanitarian crises in East Africa. His work has also featured on the Guardian and WhyDev; he also writes his own blog on development and aid issues. Charlie tweets @charlieensor, and you can contact him at charlieensor1990@googlemail.com