The main sources of refugee law are the 1951 Convention relating to the Status of Refugees, the 1967 Protocol relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.
Kenya acceded the 1951 Convention and the 1967 protocol on 16th May 1966 and 13th November1981 respectively and ratified the 1969 OAU Convention on 23rd June 1992. These instruments were later domesticated by the Kenyan Parliament through the Refugees Act, 2006.
Common Terms and Definitions:
Who is an asylum seeker?
An asylum seeker is someone who has entered another state to seek protection but whose claim for protection has not been ascertained by the country in which he is seeking protection in. The asylum seeker’s claim is ascertained through a process called refugee status determination (RSD). The Refugee Act 2006 gives Kenya the authority to grant or reject refugee status to a person who applies for protection based on the merits of their case. It is important to remember that an asylum seeker has permission to remain in the country until the assessment of his/her case is finalized. In this regard, the Refugees Act 2006, and the 2009 regulations to the Act mandates the government department in charge of administration of refugees (currently the Refugee Affairs secretariat) to issue relevant documents to such asylum seekers.
Who is a Returnee?
A returnee is a former refugee or internally displaced person who returns to their country or area of origin, whether spontaneously or in an organized manner.
Who is a Refugee?
According to the 1951 Convention and the 1969 OAU Convention, a refugee is someone who:
- “…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, 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, is unable or, owing to such fear, is unwilling to return to it.”
- The OAU Convention expands the definition to include persons forced to flee their countries for reasons of external aggression, occupation, foreign domination, and events seriously disturbing public order in either part or the whole of the country.
The definition of a refugee as per the Refugees Act, 2006 combines the definitions of the 1951 and 1969 Conventions, but adds ‘sex’ as a ground for persecution. It also defines refugees as either Statutory or Prima farcie i.e.
- A person shall be a statutory refugee … if such a person, 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; or 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 aforementioned reasons is unwilling to return to it.”
- A person shall be a prima farcierefugee if such a person owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in any 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. However, the Cabinet Secretary is authorized by the law to declare certain class of persons as prima facie refugees.
The Refugees Act, 2006 gives Kenya the authority to grant or refuse refugee status to a person who applies for protection.
Elements of the definition of a refugee:
- A refugee is a person who has been forced to flee their country and has entered Kenya or crossed an internationally recognized state border
- The reasons for flight should be “a real and genuine fear that they are in danger of serious harm or persecution”
- The grounds for harm and persecution are; race, religion, nationality (including belonging to a particular tribe or ethnic group), sex, membership to a particular social group, or political opinion
- A refugee is unable or unwilling to avail themselves to the protection of a country (country of origin or country of habitual residence) because of the fears based on the grounds listed above
- When there is a situation of war, clashes, invasion by outside forces, or other events that seriously disturb the order in a country, people may flee from their countries en masse. This category of persons is declared as “prima facie” refugees by the Ministry in charge of refugee matters in a country.
Refugee Status Determination process:
The process by which one is recognized as a refugee after being an asylum seeker is the Refugee Status Determination (RSD). i.e. it is the legal and/or administrative process by which governments receiving asylum seekers determine whether persons seeking protection meet the international legal definition of a refugee, thus qualifying for protection and assistance under international, regional or national law. The process could take anything between a few months to a few years.
In Kenya, the process is carried out by UNHCR and the Refugee Affairs Secretariat (RAS). RCK is not involved in RSD, but it offers consultation services to asylum seekers who wish to be guided in the presentation of their claims to UNHCR.
During the RSD process, asylum seekers who have made application for recognition as refugees to the Governments of the Country in which they are seeking protection are immune from prosecution for unlawful presence.
In Kenya the process is carried out the following way:
- Applicants for refugee status are interviewed solely by RAS. Upon entry into the country, asylum seekers approach RAS on advice by other asylum seekers, refugees, or NGO’s like RCK.
- RAS usually gives the asylum seekers ‘Movement Passes’ to proceed to the camp for registration and RSD at the camp level, gives them appointment slips to attend RSD at Nairobi but only if there are adequate and compelling reasons to conduct RSD in Nairobi. In either of the cases, 2-16 appointments may be issued in a span of 6 months-1year before RSD is finally conducted. Only on special circumstances are cases ‘fast tracked’ and the interview conducted on a priority basis such as with high profile insecurity situations.
- The interview is eventually conducted by a RAS officer who keys in the information. The interview takes 1-3 hours. No external lawyer is normally present to represent the asylum seekers. Upon request by asylum seekers through NGO’S like RCK, a lawyer may sit in during the interview, but only as an observer. (RCK has been consistent in advocating for the right to full legal representation of asylum seekers by Advocates in the RSD process).
- The file is then assessed by a panel of 3 other RAS officers who give a decision, which takes a maximum of 6 months to deliver. This may however take longer in some cases, particularly if the need to confirm country of origin information arises.
- If one is successful, he/she is issued with a Protection Certificate (Mandate) which is the legal document that shows a person has ‘Refugee Status’.
Below is a figurative representation of the RSD Process as per the Refugees Act, 2006:
Despite the process described above, UNHCR has been offering supportive role to RAS in RSD processes. As of 2018, UNHCR and RAS had in place a technical advisory committee that is involved in the review of RSD decisions by case workers before the Commissioner for Refugee Affairs endorses the decisions either rejecting or approving the application.
Who is responsible?
Under the Refugee Act 2006, the Government of Kenya, more specifically Refugee Affairs Secretariat (RAS) under the Ministry of Interior and Coordination of National Government, has the overall responsibility for all administration, coordination and management of refugee matters. The Government of Kenya has directed that refugees must reside in designated camps to qualify for assistance. Kenya considers itself as only a country of asylum for as long as a refugee has a mandate or is in the process of acquiring or renewing one.
Under international law it is the responsibility of UNHCR to supervise the implementation of the 1951 Convention and monitor the protection of refugees. UNHCR took over the responsibility of refugee affairs management and RSD in 1992 from the Kenyan government following the continued increase and influx of refugees.
There are a number of legal frameworks guiding the work around refugees, returnees and asylum seekers. At the International level, the United Nations Convention Relating to the Status of Refugees is the cornerstone in the body of laws that establish standards for refugee protection. It is an international convention defining who is a refugee, setting out the rights of individuals who are granted asylum as well as the responsibilities of nations that grant asylum.
The convention was approved by the United Nations at a conference in 1951. Initially, it was limited to post-World War ll refugees, but in 1967 it was expanded to encompass refugees internationally. The 1967 of the Convention was ratified in Geneva and is therefore often referred to as “the Geneva Convention”, though it is not one of the Geneva Conventions specifically dealing with permissible behavior in times of war.
Today there are 147 signatories to the 1967 Convention Relating to the Status of Refugees.
At the National level, the Refugee Act was approved by the Kenyan Parliament in 2006 and it:
- Establishes legal authority for managing refugee affairs – taking precedence over the Immigration Act and the Aliens Restriction Act on refugee matters that were later repealed
- Creates an institutional framework – creates relevant offices (Commissioner, Secretariat, camp officer, etc)
- Formalizes administrative processes – how to seek asylum, appeal, search, etc
- Formalizes refugee management as a function of the government.