Kenya’s Repatriation Program and the Impact on Somali Refugees

1.0 Introduction

This section gives a background of the research and provides the current situation and historical trends to the situation to enable the reader to have an idea of what is happening, how the government of Kenya has been taking in refugees from all countries over the world.[1]For more than a generation, the government and people of Kenya have been generously providing asylum for hundreds of thousands of refugees from across the region. Few countries in Africa can claim to be as flexible and as accommodating on the asylum regime as Kenya has made available to those escaping persecution or war in neighboring states.

In recent months the Kenyan government has been increasing its public rhetoric around an imminent return of refugees to Somalia, in light of progress made by the Kenyan military in ‘liberating’ areas from Al Shabaab control. Although there have been some positive developments inside Somalia, the situation remains too unstable for a mass repatriation. A UNHCR survey conducted early this year indicates that the majority of camp residents would not willingly return to Somalia under current circumstances.

1.1 Background to the research problem.

The 2006 Refugees Act, is under review in line with the new constitutional dispensation in Kenya. Other structural adjustments in the system of refugee protection are underway: the Government of Kenya is increasingly assuming responsibilities from UNHCR, such as reception and registration of refugees and asylum seekers (as from March 2011), and anticipates assuming refugee status determination in 2015. From a legal standpoint, Kenya’s obligations towards refugees are clear. Kenya is signatory to the 1951 UN Convention Relating to the Status of Refugees and a range of other international human rights treaties that describe the basic rights of individuals in need of protection and asylum. Kenya’s constitution defines the rights and freedoms to be enjoyed by all persons in the country, and the 2006 Refugees Act domesticates many of the 1951 Convention standards for refugee rights. However, several of the key provisions of the law have not been applied in practice, and there is still no comprehensive refugee policy determining their actual implementation.

This report by the Refugee Consortium of Kenya (RCK) examines the policy and practice of Kenya’s refugee protection framework. Although much has been written on the situation in the Dadaab camps, there has been no holistic examination of the legal and policy backdrop to refugee protection in Kenya. Therefore, this paper seeks to establish the range of rights to which refugees and asylum-seekers in Kenya are entitled to under national law (as well as international and regional legal frameworks), and to identify and assess the current implementation gaps. The paper aims to examine the key protection priorities for the Somali refugee caseload in Dadaab and on the migration corridor, and make recommendations to stakeholders on the practical application of the laws relating to the treatment of refugees.

1.2 Statement of the research Problem

This study is aimed at investigating how the Somali refugees are impacted by the repatriation program. The Somali refugees in Kenya are seen to have undergone a lot of difficulties and that they do not get a welcoming environment. This is because they undergo issues like rape.[2]Much of south-central Somalia, including Mogadishu, remains insecure, giving Somali refugees in Kenya and elsewhere good reason to have serious concerns about whether they can safely return to their country. The police abuses documented in the RCK report have caused thousands of Somalis to leave Nairobi. Aid agencies have recorded hundreds of them crossing the land-border to Somalia, citing fear of further abuses as grounds for leaving Kenya, although it is not clear whether they remained in Somalia. The Kenyan authorities have made clear they consider urban refugees’ relocation to the camps as a precursor to their return to Somalia and have implied such return should happen in the short-term.

The ongoing humanitarian and security crisis in the Dadaab refugee camps means refugees forced to move from the cities to the camps may consider returning to Somalia rather than choose a life in overcrowded and squalid conditions where they are dependent on underfunded aid agencies and from where they are prohibited from moving. They are taken to overcrowded camps where there are thousands of other refugees and they do not get proper services like food and health services.

If the Kenyan authorities force Somali refugees from Nairobi to the Dadaab camps, they risk committing large-scale refoulement—the forced return of refugees to persecution or of anyone to torture or inhuman and degrading treatment of civilians to situations of generalized violence.[3] Refugees in Kenya are particularly vulnerable to sexual assault as reported by the inhabitants and officials of the Dadaab refugee camps. There is a report from the Kenya Human Rights campaign which stated that an average of 100 refugee women report cases of rape each year hence the UNHCR has formed a program that provides firewood to the refugees because it happens that they are raped when they are collecting firewood. Therefore, the question arises that is the plight of refugees taken care of here in Kenya?

1.3.1 Research Objectives

The study specifically aims at realizing the following objectives;

To investigate whether the Somali refugees are managed well in Kenya.
To find the factors that lead to the repatriation of Somali refugees in Kenya
To look for recommendations on how to solve these problems.

1.4 Justification of the Study

1.4.1 Academic Justification

This study is very crucial since it’s bound to bridge the gap that exists in defining the coexistence between the Kenyan government, citizens and the Somali refugees. The study will also define the areas of conflicts between the three parties and will as well add more knowledge in the study area which has not been well studied.

1.4.2 Policy Justification

The study seeks to find out the legal conflicts existing in the manner the Kenyan government and the Somali refugees relate in day to day activities. The study will therefore aim at revealing areas where the rights of refugees have been violated by the government or/and the areas where refugees have gone against the set laws and procedures in the country. This will help bring to understanding the causes of conflicts between the parties and establish a common ground where such can be negotiated and resolved fully for peaceful coexistence and continuous economic development in the country.

Literature Review
[4]According to Amnesty International, a refugee is a person who has fled from their own country due to human rights abuses they have suffered there because of who they are or what they believe in, and whose own government cannot or will not protect them. As a result, they have been forced to seek international protection. Refugee rights include: Protection from being forcibly returned to a country where they would be at risk of persecution; protection from discrimination; protection from penalties for illegal entry; the right to work, housing and education; the right to freedom of movement and the right to identity and travel documents

[5]Article 23 of the United Nations Human Rights: convention relating to the status of refugees states that refugees who are lawfully staying in their territory have the right to public relief and should be given the same treatment as their nationals. This will rather make them feel like they are being treated just like the nationals of that particular country.

Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.[6] According to Sarah Kenyon, there are 3 types of refugees and they include; situational refugees, persecuted refugees and state-in-exile refugees.

1.5.1 Situational refugees

These types of refugees have the lowest propensity for involvement in political violence. They say that they left their country because the environment was unbearable for them. This also means that their lives were threatened and they had to live in a panic because they were afraid their livelihoods might be destroyed. Therefore, they found themselves in the wrong place at the wrong time. The willingness of situational refugees to return home depends on the discontinuance of the hostilities rather than any political outcome. The situational refugees flee to a neighboring country when the situations call for. They have a characteristic of having the goal of earning a livelihood and try very hard to have their previous livelihood back. They show a way of wanting to return to their country once there is peace in their previous country. An example of such refugees is from Congo. Reports from the on-going Congo war show that massive displacement occurred because `the pressure in the villages is so great that people cannot live their lives.

1.5.2 Persecuted refugees

These are the kind of refugees who leave their country because of direct oppression by the combatants. They have a greater chance of involving themselves in violence than the situational type of refugees. They would only return to their previous country depending on the political outcome of the conflict hence that being the determining factor of their return to their country. 1.5.3 State-in-exile Refugees

These types of refugees are the most violence-prone group. This occurs when the refugee group includes a highly organized political and military leadership and in most cases the leadership has organized the refugees as a strategy of starting a war. The Rwandan Hutus can be taken as an example because they fled Rwanda in 1994 under pressure from the leaders of the genocide who used the refugees as a valuable resource for their militant purposes.

Whenever there is the presence of refugees in a neighboring country, it is as a result of war, drought and famine, environment and government poicy.There is a higher risk for the children and women because they tend to be the victims of rape most of the times.[7] The UNHCR states that not all women are considered to be vulnerable and rather those with specific characteristics. [8]According to Mama, the books that have been written are concerned with sexuality (Mama 1992:72-73).Therefore; women’s human rights are not sufficiently protected by the international and national legislation.

There is also the issue of education whereby the refugees are not given sufficient education. According to Sesnan, Sudanese refugees in Uganda have the opportunities to gather and acquire education but there is no enough funding. Therefore acquiring education becomes a problem for the refugees there. [9]There is an exercise held in South Africa and it involved talking to the children. Many children expressed their feeling and talked of experiencing a lot of violence in the area or even being directly exposes to shootings and robbery and also where their hoses are broken into and in most cases, these break-ins involve rape and hence the children live in situations of fear. In Angola, the UNHCR worked with the children returning home from their camps and when asked, the main issue the raised was discrimination by the neighboring communities especially when collecting water.

The study in Zambia and Namibia involved children living in refugee camps and when questioned, the raised the issue of being in danger especially when the go collecting firewood. Therefore they tend to adopt the strategy of walking in groups in order to guarantee their safety. One of the main problems faced by refugees is the police harassement.The police carry out regular raids in refugee dominated areas during which they have been known to search refugee homes and conduct abuses even rape. They also charge refugees without any good reason and even sometimes ask for bribes whenever they can.

The refugees are forced to sleep in the streets and in over-crowded areas in the poorest neighborhood. They are usually subjected to beating, abuses and sexual harassment and detention by persecutors who follow them from their native countries especially state security from Rwanda and Ethiopia.

This research will mainly tackle the Somali refugees in Kenya. The largest group of refugees in Nairobi is of Somali origin. Somali populations have had a lengthy history of migration to Kenya, and have long-established important trade networks (Campbell, 2005). Refugees started arriving in large numbers in the early 1990s, following the collapse of Siad Barre’s regime in 1991 and the subsequent humanitarian crisis in Somalia.

According to UNHCR, there are 20,111 registered refugees and asylum-seekers of Somali origin in Nairobi, the great majority in Eastleigh district (UNHCR, 2009b). This figure does not include

many thousands of unregistered refugees. Some estimates put the number of Somali refugees in

Eastleigh at 60,000 (Lindley, 2007).These Somali are mainly attracted to the cities and these includes Nairobi city. The main pull factors drawing people to urban areas include livelihoods opportunities and the possibility of greater security. Many refugees engage in petty trade or gain employment in small and medium-sized businesses, despite official prohibitions against this.

Some have relatives or connections already living in Nairobi, and use these networks to find work and accommodation. Somali refugees in particular exploit family or other networks in Eastleigh, to the extent that many Somalis head straight for Nairobi and do not go to the camps at all. Others who go to the city temporarily for medical assistance or further education often stay on; young people in particular are unwilling to return to life in the camps. Somalis have figured prominently:[10] for over twenty years, Somali civilians have been fleeing the conflict that has gripped much of their country. The world’s biggest refugee camp, hosting the largest Somali population outside Somalia, is in Dadaab in North Eastern Kenya, a group of five settlements that have been home to refugees since 1991.

Dadaab is, however, an imperfect safe haven, and its long history of insecurity has been widely documented. Since they opened, the camps have been the scene of sexual violence, banditry and attacks on both refugees and humanitarian aid workers. Conditions for the camp residents, and on the broader macro-political level for refugees across Kenya, have deteriorated considerably in the past year. Consequently, Somali civilians currently seeking asylum in Kenya are encountering an increasingly fragile protective environment. During 2011, approximately 150,000 Somalis crossed the border and sought asylum in Dadaab. This influx has overwhelmed the already stretched resources of the humanitarian agencies, and worsened the state of overcrowding throughout the camps. Incidents of violence against police and refugees are on the rise, and levels of protection and security have been heavily undermined. Registration of new arrivals has been suspended, with the border and Liboi transit centre still officially closed.

Most of the refugees move to the urban areas and the [11]reasons for coming to Nairobi vary, but most urban refugees said they were looking for greater livelihoods opportunities and increased security. [12]Many reported feeling unsafe in Kenya’s large refugee camps of Kakuma and Dadaab, where security incidents including rape and killings have been recorded. Many others reported the frustration of having to live in camps where there is virtually no chance of employment and climatic conditions are harsh, and so they moved to urban areas to seek economic independence in the hope of a better life.

The rights of such refugees to move freely within Kenya and reside in urban areas are currently unclear. In 2006, the Government of Kenya (GoK) did pass a Refugee Act that sets out the legal and institutional framework for managing refugee affairs. Whilst the Act was largely welcomed by civil society and represents a step in the right direction, it has been undermined by a lack of institutional capacity, and the absence of a clear national policy outlining the necessary steps for its implementation. In practice, this means that many refugees have different types of documentation and many are not sure what papers they should apply for or how to apply. This confusion is further compounded by fears voiced by many refugees that they may be deported or sent back to the camps when brought in contact with the authorities – again a by-product of a lack of clarity around refugee status.

Such confusion over refugee status and documentation means that many urban refugees find it difficult to access formal employment in Nairobi, whether in the private or public sector. Yet the findings of this review indicate that refugees do make a contribution to the local and national Kenyan economy through informal employment and businesses. This could be further harnessed if there were greater initiatives to support refugee livelihoods.

The issue of mismanagement of refugees is also brought about by the issue of lack of funds. Humanitarian agencies and civil society organizations have supported refugees in Nairobi by improving access to services, providing legal assistance, counseling and livelihood opportunities, and providing training to the police to better understand refugee rights. However, these national and international efforts are limited by a lack of available funding and resources dedicated to aiding urban refugees, as well as minimal research into the specific refugee population and their needs. In the absence of substantial outside assistance, refugees have developed their own limited coping mechanisms to support their communities.

The life of an urban refugee in Nairobi is therefore extremely challenging. Despite their long-standing presence and active contribution to the economy, the great majority of refugees interviewed did not feel assimilated into the fabric of Nairobi society. Exposure to police abuses and extortion, lack of access to employment and basic services, discrimination and xenophobic attitudes are among the main factors hampering such integration. However, the majority of Nairobi’s urban refugees are overwhelmingly unable to return home due to ongoing insecurity in their countries of origin and resettlement options to a third country are limited and unattainable for most refugees. Protection and support must be provided to vulnerable refugees, irrespective of where they are located. The rights of refugees should not be determined by where they are located.

While the analysis shows that urban refugees and poor Kenyans often share the same problems – including precarious living conditions in overcrowded slums and poor access to inadequate health and education services – refugees do face particular disadvantages. Urban refugees often pay higher rents than Kenyans, are charged more for public health services and some schools request an ‘admission fee’ before admitting refugee children, despite the fact that primary education is meant to be free to all.

As years went by, the government became increasingly reluctant to enact the refugee law. Kenya continued to face sporadic influxes of refugees, the long porous border with Somalia became a cause for concern and the increase in gun crime stirred up public outrage against refugees and immigrants. Concerns arose about environmental degradation in the refugee camps, where large numbers of refugees were living on a small area of land. Conflicts between refugees and host communities grew and many Kenyans noted the disparities between their own living standards and those of refugees. The draft legislation was judged to be a burden that a beleaguered Kenya could not afford to shoulder. As the refugee situation became protracted, resistance to enactment intensified, although the need for protection, accountability and predictable administration became ever more apparent as the needs of refugees intensified. [13] Refugees used to living in urban areas in their countries of origin may also be more reluctant to stay in the camps (Pirouet, 1988, cited in Wagacha and Guiney, 2008), while city life offers greater independence and a consequent sense of self-worth and dignity (Wagacha and Guiney, 2008). For some, protection is another concern. Although there are high levels of crime and violence in Nairobi, Oromos and Amharas told the research team that they felt more secure in the relative anonymity of Nairobi.

The Somali Repatriations from Kenya

The precursors for the conflict that has gripped the nation of Somalia since the start of the 1990s are found in the country’s north in 1982[14]. At this time, periodic clashes erupted between the insurgent Somali National Movement (SNM) and the autocratic regime of Siad Barre. By 1988 the clashes with the SNM and other military fronts had developed into a full-scale civil war[15]. While SNM and other armed movements were able to gain control of significant portions of the country, a large number of Somalis were forced to flee to Ethiopia and Djibouti. As the military campaigns continued throughout 1991, all sides maintained a ‘scorched earth’ policy that devastated the Somali infrastructure, while causing increased internal and external refugee migrations[16]. As the Somali conflict progressed, it further degenerated into intense rivalries between the clans and sub-clans that were represented by the major factions[17]. The complete degeneration of the conflict into inter-clan warfare severely reduced the ability of international agencies to broker a sustained peace[18].

During 1992 and 1993 the conflict completely engulfed the southern half of the country. In addition to the civil war, repeated droughts in the late 1980s and early 1990s severely reduced the capacity of Somalis to provide enough food for them[19]. In 1993 no part of the country remained untouched by the conflict, which by then had killed tens of thousands of people and laid-waste to Somalia’s formal economy and infrastructure. The situation of displaced persons in Somalia was as complicated as the civil war itself. While estimates vary, there are consensuses that at the height of the conflict, up to 400,000 Somalis were internally displaced[20]. An even greater number were forced to leave Somalia; in 1991 up to 400,000 refugees had fled to Ethiopia in addition to 100,000 to Djibouti. The peak refugee migration to Kenya occurred in mid-1993, when about 400,000 Somalis settled inside the frontier[21]. Here the refugees lived in a series of squalid camps and were provided with only the most basic relief assistance.

Social Context

Two key issues affected the social context of Somali refugees in Kenya, first the complex relationship between Kenya, Somalia and ethnic Somalis living in Kenya, Second, Kenya’s historically poor attitude towards all refugees. Kenya and Somalia have a long and varied history of conflict and cooperation. A useful starting point is the period just before Kenya gained its independence from Great Britain in 1963. Because the population of colonial Kenya included a significant number of ethnic Somalis, an attempt was made to determine if they wanted to be part of the new Kenyan state or that of Somalia. While an international commission determined that the majority of ancestral Somalis preferred re-unification with the Somali nation, the British government sought to placate the soon-to-be president of Kenya, Jomo Kenyatta[22]. The emerging government of Kenya did not want to lose up to twenty-five percent of its territory, despite the fact that it was a semi-arid region populated by ethnic Somalis. In the end, the British did not turn over the territory to Somalia. Since independence and particularly during the Siad Barre regime, Kenya has generally supported the central government in Mogadishu, while at the same time it has made ethnic Somalis in Kenya second-class citizens in their own country. In the area near the frontier between Somalia and Kenya, frequent raids by Somali bandits or shifta exacerbated tensions between the Kenyan Government and ethnic Somalis. The entire frontier area with Somalia was under a state of emergency that lasted until 1991. Because of these tensions, ethnic Somalis throughout Kenya have been subjected to periodic harassment, arrest and even deportation from the country, particularly in the late 1980s and 1990s. Unlike neighboring states, Kenya had been fortunate in not becoming host to large refugee populations in the 1970s and 1980s. By 1990 Kenya was host to only a small refugee population of about 15,000, a mere fraction of the number in neighboring states such as Sudan and Ethiopia[23]. However, what few refugees did find their way to Kenya were generally not well treated by the Government. The procedure for establishing refugee status in Kenya was lengthy and complicated. Most refugees living in Kenya were classified simply as ‘asylum seekers’, who had little legal protection. The Kenyan Government frequently used refugees as scapegoats for national problems and had forcibly repatriated refugees on several occasions[24]. The arrival of large numbers of Somali refugees fleeing the anarchy in that country brought together Kenya’s traditional hostility to refugees and ethnic Somalis.

From the outset, the Kenyan government made little effort to provide assistance to Somali refugees, who they settled in isolated border camps. By 1993, Somali refugees in Kenya were settled in three distinct areas. Some early refugees had arrived at the port of Mombasa and were housed in camps outside the city. Along the south-east frontier with Somalia was a cluster of camps that held the majority of the refugees. Further north, near the Ethiopia-Somalia frontier was a third set of refugee camps, some of which contained Ethiopian refugees as well[25]. Most of the refugee camps in Kenya provided no opportunity for refugees to become self supporting.

The border area between Kenya and Somalia is in the semi-arid zone and is not capable of supporting large concentrations of people. Large amounts of development assistance would have been necessary to provide the refugees with the opportunity of becoming self-sufficient. The refugees in the camps were initially maintained on limited rations provided by NGOs. During the start of the refugee migration from Somalia, UNHCR had little presence in Kenya, as the country had no recent history of large-scale refugee migrations. From the outset, NGOs such as CARE Kenya took on much of the burden, providing food, medical care and sanitation facilities to the refugees[26]. Because of their confinement in isolated camps, the refugees were afforded little opportunity to participate in the Kenyan economy, further restricting the refugees’ social contexts. The one element of the refugees’ social context that was a major concern from the outset was security. The catalogue of mistreatment against Somali refugees in

Kenya is well documented. Two kinds of abuse against Somali refugees in Kenya have been identified. The first was attacks by shifta bandits. The second was attacks against the refugees by the Kenyan security forces themselves[27]. The settlement of refugees so close to the Somali frontier made them extremely vulnerable to attack from within Somalia. In addition because the refugees were isolated from central Kenya, when they were attacked or victimized by local people, these abuses were frequently not acknowledged by those in charge of the Kenyan police or military.

On the contrary, Somali refugees were repeatedly harassed by Kenyan police who frequently beat and robbed them[28]. One of the worst problems documented was the attack and rape of girls and women in the numerous refugee settlements near the Somali frontier. On many occasions, the camps were infiltrated by roaming bandits, some Somali, some Kenyan.

Refugee women were frequently attacked for money, food and sex. In several instances, the attackers were reported to be members of the Kenyan police[29]. While NGOs and UNHCR set up programs to counteract the effects of these attacks[30], little action was taken by the Kenyan Government to stop these attacks. It has been suggested that the Kenyan government did not attempt to end the harassment of Somali refugees by the shifta or the security forces so that the security situation would deteriorate sufficiently to impel the refugees into a return migration[31]. It is clear that the government was never interested in finding or prosecuting anyone accused of participating in crimes against the refugees[32]. In addition, while UNHCR was fully aware of the outrages being committed in the frontier regions, it did little to pursue the matter of refugee protection directly with the Kenyan government or in the Kenyan courts. Because of the extremely anti-Somali attitude of the Kenyan Government and the abuses of refugee rights associated with this attitude, the social context of Somali refugees in Kenya can be easily described as ‘controlled’.

External Context

In this case the external context of the refugees was rather limited. Because of the disintegration of law and order in Somalia itself, there was no national authority available to affect the refugees’ decision-making processes. In this case, it was NGOs and UNHCR, with their cross-border operations that controlled the external context. In order to facilitate the delivery of aid and relief assistance, starting in mid-1992, the UN decided to access south-western Somalia through Kenya. The stated goal of this cross border operation was to provide flexible assistance to the internally displaced and returnees in Somalia[33]. The program did have an effect on Somali refugees in Kenya, when some refugees started to leave their camps. Already threatened by the deteriorating conditions in Kenyan camps, the placement of relief aid inside the Somali frontier could be perceived as an attempt to entice refugees away from Kenya. Still despite the cross-border operation, for the most part, the refugee’s external contexts remained ‘free’.

1.6 Theoretical Framework

[34]The study of the management of refugees in Kenya can be used to describe by the use of the Marxist theory. Marxism was developed by Karl Marx (1818-83) and he can be thought of as having offered two sets of ideas, the first of which we can accept if we wish to, without accepting the second. Marx gave us a theory of society, an explanation of how society works, of how and why history has unfolded, and especially an account of the nature of capitalism. These are of great value for the task of describing what is going on in the world and for understanding the problems and directions of our society today. But Marx also regarded capitalism as extremely unsatisfactory and he was very concerned with getting rid of it, via violent revolution and the establishment of a communist society. Marxism is therefore also about political goals and action. Marxist argues that all of human history can be explained and predicted by the competition between antagonistic economic classes.

In political terms, this means that the social classes are competing in essence for control of the state—or, as Marxists would put it: the class that controls the Mode of Production also controls the State. In general, Marx did not spend much time examining the state or political institutions. Political life is an illusion or distortion of reality, so why study that distortion? It is better to concentrate on the reality behind the veil of Politics: the economic structure of society.

Thus the ancient state above all was the slave owner’s state for holding down the slaves, as the feudal state was the organ of the nobles for holding down the serfs, and the modern state is the instrument of the exploitation of wage labor by capitalism. Marx argued that the state exists primarily as an instrument of coercion; or to put it another way, no fundamental change can occur in the political sphere without a social and economic revolution. For Marx, political life is an illusion, and: it follows from this that all struggles within the State, the struggle between democracy, aristocracy, and monarchy, the struggle for the franchise, are merely the illusory forms in which the real struggles of the different classes are fought out among one another. (Mazlish, p. 97)

To Marx, the fundamental division in every society is that between the exploiters and the exploited, between the owners of the means of production those who have to sell their labor to the owners to earn a living. Therefore in this study, Marxist theory explains it a lot because the refugees are dominated by the social and high class which is the government in this case. They are looked down upon just because they seem not to have any rights in the host country. They are denied their rights by those who are in power and this is exactly what Marxist theory explains. This is because Marxists teaches the class difference and its very evident here in this situation.

Kenya and the Somali Refugees

1.1. Introduction

The Kenyan operation to counter terror known as ‘Usalama Watch’ has made the Somali community in Kenya an easy target[35]. Somalis, concentrated for in Eastleigh Nairobi for example, were previously stereotyped as being excellent business people, as creators of small companies, employment and opportunities for investment. Despite them (Somali refugees) being associated in the past with illegal status, Somali piracy and crime, overall they were viewed as an asset to the Kenyan economy. Kenya’s participation in the war on terror began in 2011 when troops were sent to Somalia to fight against the Islamist militant group Al-Shabaab[36]. Since then, Somali refugees in Eastleigh have been associated with a new set of images of violent crimes, with terrorism and with a threat to public and national security[37]. Although the Kenyan state has valid security trepidations, could it be that the counter-terrorism operation acts as an excuse for extensive targeting of the Somali population in Kenya? The issuance of a directive in March 2014 aimed at the encampment of all refugees, including the estimated 51,000 refugees residing in urban areas was claimed to be in response to the developing security setbacks facing the country. The security operation has led to the arrest of many refugees and asylum-seekers of different nationalities in widespread swoops not only in Eastleigh and Nairobi but other urban areas. Those arrested have subsequently been detained and forcibly relocated to the refugee camps. These unfortunate events also acted as an excuse to rape, beat, extort money from, and arbitrarily arrest, at least 1,000 people by the police who described these victims as “terrorists,” and wanted bribes for their freedom[38]. Some 3,000 refugees were relocated to camps though most of them subsequently returned to urban centres where for many years they have been securing their livelihoods[39]. A directive similar to Operation Usalama Watch had been issued in December 2012 and later quashed by the High Court in July 2013 because the Kenyan government had failed to demonstrate how refugee presence in urban areas resulted in an increased national security threat[40]. Government had failed to demonstrate how refugee presence in urban areas resulted in an increased national security threat[41]. The discussions surrounding the review of existing refugee laws have been unpredictable because of the insecurity in Kenya[42]. This has influenced some refugees to choose to go back to Somalia despite the conflict. Also, the situation of Somali refugees has deteriorated from bad to worse as the government is determined to repatriate all the refugees in Dadaab camp back to Somalia. The government of Kenya believes that the refugee camps are being used by Al-Shabaab terrorists to plan attacks in the country, and as such are preparing to close the camp[43].

The closure of Dadaab camp and the repatriation of Somali refugees will have a detrimental economic effect on the North Eastern province, in particular, the Garissa district where the camp is located. Enghoff et al. (2010) report shows that the Dadaab camps on a yearly basis contributes approximately $14m to the surrounding community. This study that was commissioned by the Kenyan, Danish and Norwegian governments, demonstrates that the annual turnover of Dadaab refugee-run camp-based businesses was estimated to be around $25m. In an area that is poverty-stricken as Kenya’s North Eastern region, these are significant numbers that cannot be ignored[44]. On one hand, the Kenya government has labelled Somali refugees as a security risk and a threat to national security and wants them out of the country. On the other hand, the impact of Somali refugees on the urban and camp economy is highly significant, and their departure can hurt the Kenyan economy.

Throughout the 1990s, Somali refugees transformed Eastleigh from a predominantly residential area into an effervescent profit-making business centre ranging from real estate, import–export businesses to retail outlets (from small-scale hawking and street stalls to shopping malls)[45]. The transformation of Eastleigh into a commercial zone has led to competition amongst businessmen forcing out Asian traders, who initially controlled the businesses[46]. The retail malls in Eastleigh are not just used by individual consumers, but larger commercial businesses also depend on retailers in Eastleigh for a wide variety of goods, and the smaller shops that sell other items are also predominantly owned by Somalis[47]. According to Farah Abdulsamed, an analyst at Chatham House, a think-tank in the United Kingdom, the Somali trade centred in the Nairobi suburb of Eastleigh has had an active market transformation felt far beyond Kenya and Somalia to the Gulf States and Central Africa. “Eastleigh is at the centre of a network of trade that connects the Arabian Peninsula, Somalia, Kenya and East and Central Africa, with the Somali business community as the common thread”[48]. He further argues that besides the fact that the emergent Somali investment in Nairobi has attracted several banks and many other service providers, it is evident that urban refugees are not a burden on the state but can become an economic asset[49].

On the flip side, Kenyan officials seek to promote the issue of security due to the large numbers of refugees residing in urban areas. An example is the late Assistant Minister for Internal Security in Kenya, Orwa Ojode, who once likened the predominant Somali community in Eastleigh to an Al-Shabaab enclave in Kenya. In his address to the parliament, he said, “Al-Shabaab is like a snake with its tail in Somalia and its head in Eastleigh”[50].The hate messages against Somalis posted on social media sites anytime there is an attack by Al-Shabaab further compounds the problems of the Somali refugees residing in the city. For example, after two grenade attacks in Nairobi in 2011, there was a barrage of hate posts and messages on social media against Somalis. The hate posts only subsided after a non-Somali Kenyan was arrested, tried and sentenced to life incarceration[51].

This stereotype that refugees of Somali descent are a threat and their labeling has been used to challenge the citizenship and identity of Kenya-Somali ethnic group in Nairobi. The Equal Rights Trust (ERT) 2011 report demonstrates significant proof that suggests that Kenyan Somalis are subject to direct discrimination concerning citizenship and identity and, as a result undergo rigorous procedures before they can be issued identity cards and passports. For example, “applicants had to produce their parents’ and grandparents’ identification documents, a requirement that does not apply to individuals of other ethnic groups”[52]. In addition, to acquire a Kenyan passport, those that have a Somali appearance or appear to be of Arab origin have to undergo a screening interview conducted by the National Security Intelligence Service in Nairobi[53]. The adjacency of the Kenya-Somalia border makes it hard to monitor the flow of refugees into the camps especially after considering that it is hard differentiating between Kenyan-Somalis and Somali-Somalis who share some similar physical characteristics as well as one language. The probability of mistaken identity is highly likely[54]. With this backdrop of contradiction between security risks and economic growth, questions arise around the interest of the Kenyan government in the Somali refugee situation. The government is willing to repatriate about half a million people under the guise of national security when a substantial number of these people constitute a significant nucleus of the capital’s economic development. Melanie Teff, a senior advocate and European representative for Refugee International called on the Kenyan government to change its counterproductive encampment policy for refugees and to include Dadaab in its development plans, to realize significant economic and human benefits. “Instead of being a burden, the 500,000 Somalis in the camps should be integrated into Kenya’s economy as part of a development plan for the country’s north-east”[55].

Scholars like Hovil have argued that since refugees are fleeing from areas of violent conflict many governments see them as posing a potential security threat, which could disturb the safety of the country and need to be observed in camps[56]. Restrictive arguments are supported by one of the official positions of the Kenya Government which is that urban refugees are an economic and security burden on the city and, therefore, should be collectively forbidden from living and working in Nairobi. This is one of the state’s principal justifications for its refugee encampment policy[57] and of recent calls for the closure of camps and repatriation of more than 500,000 Somali refugees back to Somali. In a speech by the former Cabinet Secretary of Interior and Co-ordination of the National Government Joseph ole Lenku; “the safe return of Somali refugees to their country will pave the way for infrastructural, institutional development and reforms that will enhance democratic growth and governance in their country”[58].

Refugee Protection

Despite the increased number of refugees under the Kenya Government’s refugee protection program, the state still shows a lack of interest with refugees’ issues in terms of protection and provision of services such as health and education. The Kenya government response to the pre-1991 refugee situation in Kenya was more hospitable, highlighting the importance of local integration; the post-1991 administration became less accommodating with xenophobia increasing and prospects for regional integration declining[59][60].

Despite being a signatory to the 1951 UN Refugee Convention that is the legitimate document in describing who is a refugee, their rights and the legal commitment of states (UNHCR, n.d.) and signing the Organization for African Unity (OAU) Convention governing the specific aspects of refugee problems in Africa on 10th September 1969 which augments the approach of refugee as a way of seeking responses to the new elements of mass movement of people in need of international protection and assistance (UNHCR), Kenya has still been unable to develop its national refugee law that deals with the rights and protection of refugees. It has instead depended on ad hoc policies and prevailing immigration rules and regulation to respond to refugee issues. The most popular system that can be pointed out in dealing with the refugee question after the influx of refugees in 1991 is that of the encampment policy. The Kenyan authorities agreed to accept the new refugees but on the condition that the refugees reside in chosen camps[61]. Two refugee camps, Dadaab and Kakuma, were established in 1991 to contain the thousands of refugees streaming into Kenya[62].

However, Amnesty International (2014) and Human Rights Watch (2014) reports indicate that the Kenyan Government policy on forced encampment and involuntary repatriation is a contravention. of Kenya’s obligations under international law. The two major refugee camps in Kenya are congested and insecure with no provision in place to accommodate the tens of thousands of people expected to be in the camp as a result of forced relocations to camps. “Food is scarce, access to education and health services are extremely strained, and there is little space for people to find shelter” (Amnesty International 2014). On 31st August 2015, Kenya registered 420,283 refugees of which 332,455 were in Dadaab, 55,050 in Kakuma and 33,164 in Nairobi (UNHCR 2015).

The Kenyan Refugee Regime

Since the effect of mass movement across international borders has intensified over the years at the international level so has the refugee regime in Kenya been subjected to formal changes since 2006? Despite being a signatory to the 1951 and 1969 UN Convention and Organization of African Unity (OAU) Convention respectively, there was no national legislation for refugees until 2006[63]. Lack of specific legislation to govern refugee affairs places the refugees in a vulnerable position of being mistreated which is not in agreement with internationally recognized protection standards. As earlier mentioned, the global refugee regime calls for states to provide assistance to the states that have refugees in their territories. This assistance can either be financial or in the form of protection. In the case of Kenya, the influx of displaced people from Somalia and the context of ‘war on terror’ has led the government to call for international support in dealing with the reasons for displacement in Somalia.

According to a UNHCR’s Strengthening Refugee Protection, Assistance and Support to Host Communities in Kenya and Comprehensive Action Plan for Somali Refugees Capacity Project (2005), the responsibilities being carried out by the United Nations High Commission for Refugees should be a task held by the state as an important area of refugee governance. In the same way, Kenya’s lack of accountability render tackling of refugee issues to be ineffective, and yet Kenya’s reputation in the international global refugee regime arena needs to be upheld.

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[13] Campbell,2005

[14] Barcik and Normark 1991, p. 13

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[16] Rogge 1994, p. 65

[17] Ryle 1992b, p. 7

[18] Gallagher and Martin 1992,p.6

[19] Unruh1993, p. 54

[20] IOM 1994, p. 2

[21] Rogge 1994, p. 67

[22] African Rights 1993, p. 9

[23] UNHCR 1991b

[24] World Refugee Survey 1991, p. 44

[25] Gallagher and Martin 1992, p. 16

[26] Gallagher and Martin 1992, p. 18

[27] Africa Rights 1993, p. 12

[28] Waldron and Hasci 1995, p. 14

[29] Nowrojee 1993, p. 44

[30] UNHCR 1993g, p. 4

[31] African Rights 1993, p. 47

[32] Nowrojee 1993, p. 45

[33] UNHCR 1993g, p. 10

[34] Ted Trainer, Marxist Theory: brief Introduction, March 2010

[35] Amnesty International 2014:4

[36] The Guardian 2013

[37] Rasmussen 2014:1

[38] Human Rights Watch 2014:2

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[40] Amnesty International 2014: 4-5

[41] Amnesty International 2014: 4-5

[42] UNHCR-Kenya 2015: 9

[43] Daily Monitor 2015

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[45] Pavenello et al. 2010:22-23

[46] Campbell 2006: 402

[47] Pavenello 2010: 24

[48] Abdulsamed 2011: 7

[49] Abdulsamed 2011: 3

[50] NPR 2011

[51] NPR 2011

[52] ERT 2011:79-80

[53] Equal Rights Trust 2011:80

[54] Kirui & Mwaruvie 2012; 161

[55] The Guardian 2012

[56] Hovil 2007:604

[57] Campbell 2006: 398

[58] Standard Digital 2014

[59] Verdirame 1999

[60] Kagwanja 2002

[61] Horst 2006

[62] Kirui & Mwaruvie 2012:161

[63] Lindley 2011