Kenya acceded the 1951 Convention and the 1967 protocol on 19th May 2016 and 13th November1981 respectively and ratified the 1969 OAU Convention on 23rd June 1992. Nationally, refugee law is to be found in the Refugees Act, 2006.
Common Terms and Definitions:
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 the 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 persons shall be a prima farcie refugee if such a person owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in any part or the whole of the 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.
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 international 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 enmasse. This category of persons is declared as “prima facie” refugees by the Ministry in charge of refugee matters in a country.
Refugees are in Kenya because they cannot find safety in their own country or the country where they had been living, and are granted protection in Kenya by the Government (until a long-lasting solution is found)
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. Through the claim ascertainment process, not every asylum seeker will be recognized as a refugee, but all refugees at the time of arrival in the country in which they seek protection are asylum seekers. The Refugee Act 2006 gives Kenya the authority to give or refuse refugee status to a person who applies for protection. 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.
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.
Refugee Status Determination process:
The process by which one is recognized as a refugee after being an asylum seeker is the Refugee Status Determination Process (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 and a few years.
In Kenya, the process is carried out by UNHCR and the Department for Refugee Affairs (DRA). 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.
Below is a figurative representation of the RSD Process as per the Refugees Act, 2006:
NOTE: On 6th May 2016, thePrincipal Secretary, Ministry of Interior and Coordination of National Government, Eng. Karanja Kibicho, announced the immediate disbandment of the Department of Refugee Affairs (DRA). The Refugee Affairs Secretariat (RAS), would take up the mandate of DRA. As of July 2016, the Secretariat was yet to be gazetted.
Who is responsible?
Under the Refugee Act 2006, the Government of Kenya, more specifically the Department for Refugee Affairs (DRA) 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.
Legal instruments guiding the work with refugees, returnees and asylum seekers
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
Formalizes administrative processes – how to seek asylum, appeal, search, etc
Formalizes refugee management as a function of the government.
Milestones in Refugee Management
Refugees from Uganda, Sudan and Ethiopia arrive in Kenya. The numbers are at about 20,000. At the beginning, the Government is responsible for Refugee Status Determination (RSD) through the Refugee Secretariat under the Ministry of Home Affairs and the idea of a refugee law is formally proposed at the government level.
1990 - 2007
The crisis and political instability in Somalia, Sudan, Ethiopia and Rwanda lead to the influx of refugees in Kenya. The numbers are estimated at 400,000 and as a result, the refugee camps are established in Rift Valley, North Eastern and Coast provinces. It is notable that in 1992, Kenya experienced clashes in various parts of the country that resulted in IDPs. At the height of the conflicts in Somalia and Ethiopia, an estimated 3000 Somalis and 1000 Ethiopians crossed the border into Kenya. As at 2007, there was amalgamation of camps in North Eastern and Coast Provinces, leaving Kakuma and Dadaab Refugee Camp as the only camps in Kenya During this period, the Government handed over the responsibilities of RSD and refugee management to UNHCR. In 1994, the Government, NGOs and UN agencies review the 1991 draft refugee law but the final product is unacceptable to both sides and the Bill is shelved. In 1999, the Government holds wider consultations with civil society actors including RCK and other NGO on the 1994 Refugee Bill, which becomes the Refugee Bill 2000 Between 2000-2002, the Refugee Bill is reviewed at least 3 times but is not published in the Kenya Gazette. In 2003, the Government, RCK, NGOs and UN agencies review the Refugee Bill 2000 and make recommendations. The Bill is published as the Refugee Bill 2003.The Bill is introduced to Parliament, but the Bill lapses at the end of the year, when Parliament closes for the year. In 2006, the Refugee Bill is re-published (after its expiry in 2003) and becomes the Refugee Bill 2006. The Refugee Bill is introduced to Parliament for the second time, during which time it is unanimously voted into law and receives presidential assent on December 29th 2006. The Act is gazetted on May 15th 2007, with the 1st Commissioner for Refugee Affairs being appointed on December 7th 2007 As at 2007, there was amalgamation of camps in North Eastern and Coast Provinces, leaving Kakuma and Dadaab Refugee Camp as the only camps in Kenya
2007 – present
This period is characterized by a rise in terrorist incidences and attacks, resulting in the death of Kenyans. There is also the popularization of the notion that refugees and asylum seekers present a threat to security, and that their presence in the country exacerbates occurrence of terrorist incidences.
In March 2014, a Directive requiring that all refugees reside in refugee camps was issued by the Government. The Directive was challenged at the High Court of Kenya and a judgment issued, which declared that the Directive was a violation of the constitutionally guaranteed freedom of movement and a violation of the principle of non- refoulment , to which Kenya should observe in line with refugee law.
In December 2014, amendments were made to the Refugees Act, 2006 through the Security Laws Amendment Act, 2014. The amendments among other sought to cap the number of refugees present in Kenya at any
one given time at 150,000, and also required that all refugees and asylum seekers reside in camps. The legality of the provisions of the Security Laws Amendment Act were challenged at the High Court of Kenya. In February 2015, the High Court ruled that the stipulation seeking to cap the number of Refugees at 150,000 was unconstitutional.
After the Westgate Mall Attack in September 2013, a joint Parliamentary Committee on National Security, Defence and Foreign Relations was established with a view to establishing circumstances leading to the terror attack at the Mall, among other terrorist incidences. In its report tabled in December 2013, before the National Assembly, the Committee recommended the repeal of the Refugee Act 2006.
Gaps in refugee reception, registration and residence of refugees are also identified in regard to the Refugees Act, 2006
In 2014, the Government through the Department of Refugee Affairs initiated a review process of the Refugees Act, 2006 and the development process of the National Asylum Policy by constituting a Taskforce comprising select partners from the Urban Refugee protection Network (URPN).
As at July 2016, a Refugee Bill 2016 had undergone the 1st reading in the National Assembly.
The Bill was committed to the Departmental Committee on Administration and National Security (DCANS) for further review and for purposes of ensuring public inputs incorporation through public participation as per the requirements of the Kenya Constitution 2010. The public hearing on the Bill was set for 9th August 2016.
The public was also invited to submit memoranda on the Refugee Bill 2016 to the Office of the Clerk on the National Assembly.
Milestones in Refugee Management in Kenya
2012 – Statistical Summary of Refugees and Asylum Seekers in Kenya by Country of Origin and Location
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2013 – Statistical Summary of Refugees and Asylum Seekers in Kenya by Country of Origin and Location
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2014 – Statistical Summary of Refugees and Asylum Seekers in Kenya by Country of Origin and Location
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2015 – Statistical Summary of Refugees and Asylum Seekers in Kenya by Country of Origin and Location
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2016 – Statistical Summary of Refugees and Asylum Seekers in Kenya by Country of Origin and Location
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The status determination process (RSD)
Refugee Status Determination (RSD) is the process used to determine whether an individual asylum-seeker meets the international legal definition of a refugee qualifying for protection and assistance by the international community.
In Kenya, the process is carried out by UNHCR on behalf of the Government. 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.
In Kenya the process is carried out the following way:
Applicants for refugee status are interviewed solely by UNHCR. Upon entry into the country, asylum seekers approach UNHCR on advice by other asylum seekers, refugees, or NGO’s like RCK.
UNHCR 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 UNHCR 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 UNHCR 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’. The document is issued under UNHCR’s international mandate for the protection of refugees and asylum seekers.
In 2010 the government of Kenya initiated a project to have all refugees in both Dadaab and Kakuma refugee camps and Nairobi registered and issued with refugee identity cards. The IDs will contain the government seal, which the police have been asking for when they encounter the refugees. All refugees who are registered get an identification card that is similar to the Kenyan national identity card but with a different color scheme and a refugee inscription on it. The Refugee Identity cards are valid for a five year period.
Are you new in Kenya?
Report to UNHCR offices in Nairobi as soon as possible. Their offices are located in the Westlands area of the city.
You and your other family members will be photographed and given a document by UNHCR known as a movement pass. This document is valid for 30 days, during which time you are required to travel to either Kakuma or Dadaab refugee camps for registration.
When you get to the camp, present your movement pass and you will be notified by a UNHCR officer, the date of your refugee status determination interview.
As your claim for status determination is being processed, you will be issued with a ration card and number. The card is used to get food rations at the camp.
For further information on procedures and policies related to refugees in Kenya, please contact us.