Human rights are an inalienable, inherent entitlement that all human beings have mealy by being human. It follows, therefore, that refugees as human beings, are entitled to human rights available under international law and national legal systems of the host country, except with respect to rights that are specifically spelt out to accrue to citizens only.
The 1951 United Nations Convention Relating to the Status of Refugees, spells out various rights owed to refugees such as the right to non-discrimination provided under Article 3, right to access courts provided under Article 16 and many others.
The Convention, defines a refugee as a person owing to a well founded 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 owning to such fear, is unwilling to avail himself for 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.
Kenya hosts a large asylum-seeking and refugee population. This is due largely to the country’s location in a conflict-prone area. For example, neighboring countries like Somalia and South Sudan have experienced civil wars that caused internal and external displacement of large groups of their population.
Refugees in Kenya primarily reside in the Dadaab refugee complex (which is in Garissa County and consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios) and the Kakuma Refugee Camp located in Turkana County.
Kenya is also a signatory to a number of international treaties applicable to individuals seeking asylum and protection. For instance, it acceded to the 1951 United Nations Convention Relating to the Status of Refugees on May 16, 1966, and its 1967 Protocol in 1981. Kenya is also a state party to the 1969 African Union (AU) (formerly known as the Organization of African Unity, OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, which it signed in September 1969 and ratified in June 1992. In addition, Kenya acceded to the 1984 Convention against Torture and Other Cruel, inhumane or Degrading Treatment or Punishment in February 1997.
In 2006, the country put in place a national legal framework governing refugee matters and assumed partial responsibility for the refugee status determination (RSD) process. It did this when it took a step to implement its obligations under international law by enacting the Refugees Act in 2006, which took effect the next year, and its subsidiary legislation, the Refugees (Reception, Registration and Adjudication) Regulations, in 2009 (Refugees Regulations).
When a person is compelled to flee his country of origin or nationality his immediate concern is protection against refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution). Such protection is necessary and at times, the only means of preventing further human rights violations hence the international community has recognized the principle of non-refoulement, which prohibits both rejection of a refugee at the frontier and expulsion after entry. This rule derives its existence and validity from the twin concepts of ‘international community’ and ‘common humanity’ and must be seen as an integral part of the foundation of freedom, justice and peace in the world which is human rights.
Legal basis for protection against forced return of refugees to countries where there is danger to their lives, safety, security and dignity can also be found in the law relating to the prohibition of torture and cruel or inhuman treatment.
Thus the principle of non-refoulement is well entrenched in conventional and customary international law. Despite this, governments everywhere are adopting unilateral restrictive practices to prevent the entry of refugees and other forcibly displaced persons into their territories.
Refugees are intercepted on the High Seas and penalties have been imposed against airlines or shipping companies carrying suspected passengers. New concepts such as ‘temporary protection’ and the ‘safe third country rule’ which allow officials to eject people on flight who have already transited another state have been introduced. Hundreds of thousands of refugees seeking shelter in the refugee camps have been demarcated in airports where physical presence does not amount to legal presence and where summary and arbitrary removal is permissible.
As refugee protection is an important dimension of human rights protection, unilateral restrictive practices adopted by both the developed and developing countries are inconsistent with their obligations under international refugee law and humanitarian law and constitute a serious violation of human rights.
Once a person fleeing persecution enters a state other than that of his origin or nationality, what he needs most is asylum. Asylum is the protection which a State grants on its territory or in some other place under the control of its organs, to a person who comes to seek it.
Asylum is necessary not only for safeguarding the right to life, security and integrity but also for preventing other human rights violations. Thus the grant of asylum in the case of refugees who constitute a unique category of human rights victims is an important aspect of human rights protection and should be considered in the light of the U.N. Charter as a general principle of international law and an elementary consideration of humanity.
The deflection of responsibility by the North towards refugees, exacerbate the economic burdens of the South, which today hosts 90% of the total refugee problem which has also compelled many Southern States to emulate Northern non-entree practices.
In conclusion, it is safe to say that rights of refugees have presented themselves as rights which should be accorded special attention and consideration since no one leaves home unless home is the mouth of a shark. What is at stake is nothing less than the survival and well being of a generation of innocents.
When talking about refugee rights we are talking about human dignity and that should be done without borders. We have to understand first that no one puts their children in a boat unless the water is safer than the land.
Author – June Njoki