The recent admission by the Government of Kenya that its agencies played a role in the refoulement and forced return of four Turkish nationals Mustafa Gen, Oztürk Uzun, Alparslan Tasçi, and Hüseyin Yesilsu has sparked outrage and raised serious concerns over the country’s commitment to international humanitarian law and human rights. This act violates the principle of non-refoulement, which has been a cornerstone of refugee protection for over seven decades.
Non-refoulement is enshrined in both international and national legal frameworks. It prohibits the return of refugees or asylum seekers to a country where they face a real risk of persecution, torture, or other serious human rights violations.
This principle is embedded in the 1951 United Nations Refugee Convention and its 1967 Protocol, as well as the 1969 OAU Convention on Refugees and Kenya’s own Refugee Act of 2021. These legal instruments make clear that no state should return a refugee to any place where their life or freedom is at risk.
Refugee policies
The government’s actions not only disregard its obligations under these frameworks but also raise serious concerns about the role of external influences in shaping Kenya’s refugee policies. By forcibly returning individuals to a country they fled from, the authorities have compromised their duty to protect vulnerable people who seek asylum within its borders.
Kenya’s legal framework is clear on matters of asylum and protection. In the 2017 case of Kenya National Commission on Human Rights & Another v Attorney-General & 3 others (2017) eKLR, the High Court of Kenya reaffirmed the importance of non-refoulement. In this case, the government attempted to close the Dadaab refugee camp, citing security concerns. However, the court ruled against the closure, emphasizing that the government’s actions were unconstitutional as they violated the rights of refugees and asylum seekers under both international and national law.
The court highlighted that the government has a duty to provide protection and that decisions affecting refugees must adhere to procedural fairness. This judgment sent a powerful message that Kenya’s legal obligations to refugees cannot be circumvented.
Kenya’s Constitution, specifically Article 2, declares that any international treaty or convention ratified by Kenya is part of the law of the land. As a signatory to the 1951 Refugee Convention and other human rights instruments, Kenya is bound to uphold the principle of non-refoulement.
Article 2 underscores the supremacy of the Constitution and the binding nature of international agreements, which means that any violation of refugee protection laws not only breaches international law but also Kenya’s supreme legal framework. The Constitution also prohibits the enforcement of any law or treaty that contradicts human rights principles, further solidifying Kenya’s legal commitment to protect refugees.
Refugee Protection Mechanisms
The government must take immediate steps to correct the violation of non-refoulement in this case.
To avoid further damage to its reputation and credibility, the following measures should be considered:
1. Strengthen Refugee Protection Mechanisms: Kenya should work on strengthening the institutional framework for refugee protection by providing more resources to the Department of Refugee Affairs and enhancing the capacity of the judiciary to handle refugee-related cases.
2. Collaborate with International Organizations: The government should partner with international organizations such as the United Nations High Commissioner for Refugees (UNHCR) to ensure the rights of refugees and asylum seekers are upheld. A coordinated approach can help prevent further violations of international and domestic laws.
3. Reaffirm Kenya’s Commitment to Human Rights: As Kenya prepares for its upcoming United Nations Universal Periodic Review, the government must reaffirm its commitment to human rights by taking tangible steps to respect and protect refugees. Upholding the principle of non-refoulement is not only a legal obligation but also a moral duty for Kenya as a member of the UN Human Rights Council.
By taking these steps, Kenya can begin to rebuild the trust it has lost as a sanctuary nation and ensure that the rights of asylum seekers and refugees are protected in line with both its Constitution and international law. The principle of non-refoulement is not negotiable, and Kenya must honour its commitments to uphold the dignity and safety of all those who seek refuge within its borders.
Ms Dokhole is a lawyer and Head of Refugee Rights at The Legal Caravan. [email protected]
