Kenya’s Repatriation of Refugees in a Wake of Regional Integration

COMMENT Jan Maina 09 April 2021

Kenya has in the past week ordered closure of Daadab and Kakuma Refugee camps which are among the world largest refugee camps[1]. In light of this, begs the question, what is the essence of regional integration, if countries cannot stand by the very instruments they have vowed to implement and safeguard? Notably, Kenya is a signatory to the 1969 OAU refugee Convention, and at the same time a member state of the Inter-governmental Authority on Development whose stance on refugee issues encompasses self-reliance and inclusion of refugees in countries of asylum and at the same time strengthening sub-regional co-operation[2]. It is therefore on this denotation that the essence of state sovereignty cannot be underemphasized.

Refugee Protection

To this end, the critical role that regional integration plays in refugee protection is that of good faith and states have an obligation under international law to protect the rights of migrants within their territory and under their jurisdictions[3]. For the most part, this obligation is always limited by the power to manage migration flows into, through and from their territories and as such is a privilege under international law to accept such migrants in their jurisdictions in accordance with domestic laws.

In a wake of refugee protection and repatriation vis-à-vis regional integration, most international instruments and treaties signed by states either provide for reservation clauses on state sovereignty or provide for a right to leave one’s country in absence of a commensurate obligation of states to accept such refugees. Particularly, pursuant to the 1969 OAU Convention, Article 1(6), member states are not strictly obligated to receive refugees and where asylum is denied, that shall not amount to an unfriendly act under the auspices of international law. Further, the UN Convention relating to the Status of Refugees of 1951 makes its own reservations under Article 9 on state sovereignty for states to take measures within the interest of national security, which is at the discretion of the state.

Disputes on Politics, Sovereignty and Territory

Even in a myriad of reservations, shutting down refugee camps and forcefully repatriating migrants is definitely not what regional integration anticipated. To this effect, countries,Kenya not being an exception to that, have been accused of wrongfully invoking state sovereignty in an attempt to settle political scores between states. With over 300,000 refugees from Somalia, Kenya’s diplomatic ties with Somalia have deteriorated over the last decade including a recent maritime boundary dispute at the International Court of Justice[4].

Perhaps what needs deliberation within the Kenyan context of the lurking danger of human rights violations it might expose the refugees is why regional integration in most blocs majorly seeks to protect regular migration to the exclusion of asylum seekers and irregular migrants. Even where state sovereignty is reasonably invoked, such ought to be redefined within the principle of non-refoulment. Prerogatives of states should not restrain the rationale of regional integration within the ambit of freedom of movement and establishment. Moving forward and before then, the drafters of regional integration instruments and their intended objectives thereof may need to evaluate state sovereignty and adopt measures that will hamper cooperation.

Jan Maina is a Lawyer and DAAD Legal Scholar at the Tanzanian-German Center for Legal Studies.

[1] Kenya orders closure of two refugee camps, gives ultimatum to UN agency <https://www.reuters.com/article/us-kenya-refugees/kenya-orders-closure-of-two-refugee-camps-gives-ultimatum-to-un-agency-idUSKBN2BG1K7>

[2]See the IGAD  Nairobi Declaration On Somali Refugees, 2017 accessible at <https://igad.int/communique/1519-communique-special-summit-of-the-igad-assembly-of-heads-of-state-and-government-on-durable-solutions-for-somali-refugees>

[3] Laura Thompson ‘Protection of Migrants’ Rights and State Sovereignty’

<https://www.un.org/en/chronicle/article/protection-migrants-rights-and-state-sovereignty>

[4] See, Kenya-Somalia maritime boundary dispute explained < https://www.aljazeera.com/news/2021/3/14/somalia-kenya-maritime-dispute-explained>