Would forcibly sending Somali refugees home improve Kenya’s security?

On 11th of April, 2015, the Kenyan Deputy President Hon. William Ruto ordered the United Nations High Commissioner for Refugees (UNHCR) to close the Dadaab refugee camp within three months. This means that a total of 335,565 Somali refugees will be required to leave Kenya by end of June 2015 or the Kenyan Government will forcibly remove them. This news was jubilantly received by Kenyans, if late night news polls are anything to go by.

However few are critically and rationally reviewing the rationale of moving the refugees and its implications. This blog post attempts to do this as a way of contributing to the debate on the efficacy of such a move. The posts looks at who a refugee is and addresses the nexus between hosting them and national security in Kenya. It also looks at the implications of forcible repatriation of these refugees into Somalia. It concludes by addressing alternative means to address Kenya’s security challenge while adhering to the law governing refugee protection.

Who is a refugee?

A refugee is a person who flees their home; crosses an internationally recognized border to seek protection from persecution (loosely defined as discriminatory treatment) or events seriously disturbing public order. According to available statistics there are about 1.6 m refugees in the world 50% of whom are under the age of 18 while 49% are women. In Kenya, the refugee population stands at about 569,772 with a majority being Somali refugees followed by Ethiopian and Congolese refugees. Most of the refugees in Kenya, like the Somali, have fled their countries of origin owing to conflict; much like the Kenyans that live in Uganda having fled the post-election violence in 2007/08.

A person becomes a refugee after an evaluation process called the refugee status determination (RSD). This process sieves genuine refugees from other non-deserving elements such as combatants and terrorists. Therefore, before a person can be granted refugee status, their refugee claim is thoroughly investigated to ensure that they are genuine. This means that refugee protection is civilian in character and its aim is to protect persons who flee their countries of origin to save their lives and limbs.

Are Somali refugees a threat to national security?

There has been a lot of talk about refugees, particularly Somali refugees, being a threat to national security. But is there any evidence to this? Recent experience shows that there is none.

In December, 2012, the Government of Kenya ordered that all urban residing refugees be relocated to the camps. The main argument presented by the government was that they presented a threat to national security and thus needed to be contained in refugee camps. A case was lodged at the High Court to challenge this argument. The government was given an opportunity to present evidence that links refugees to insecurity in the country; it failed.

In December, 2014, the Government of Kenya – through the Security Laws Amendment Act, 2014 – attempted to limit the number of refugees in the country to 150,000. A case was lodged at the High Court to inter alia challenge this provision of the Act. The government was given another opportunity to prove the causal link between hosting refugees and insecurity in the county; it failed.

These instances lead one to conclude that the government lacks evidence that links refugees to insecurity. What pervades public discourse at the moment are generalizations not based on facts. But if there isn’t evidence directly linking refugees to the current insecurity in the country, why are they being targeted? The answer to this question lies in the gaps in our security system.

The Refugee Consortium of Kenya conducted a study in 2012 that partly looked at security at the Dadaab refugee camp. One of the findings was that Somali refugees, particularly those that left Somalia in 2011, escaped forcible recruitment into al-Shabaab. Further, the report showed that even after escaping into Kenya to seek asylum from this militia, some recruiters still followed them to Dadaab to recruit their children and young men. How is this possible? How can al-Shabaab access the Dadaab refugee camp without detection?

This investigative piece appears to provide an answer: corruption and complacency. Granted that the Kenya-Somali border is porous, riddled with many unofficial routes (panya [rat] routes), however corruption poses the greater danger to our national security. This is how arms and combatants can be able to make their way from Somali, past government check points to recruit refugee children into their ranks. This is how arms and militia personnel can be able to come from Somalia past government check points and hit Nairobi’s Westgate Mall and Garissa University College.

Be that as it may, al-Shabaab operatives are not the only ones recruiting fighters from the camps. In a 2009 report, the Kenya Defence Forces (KDF) stood accused of militarizing the camp. Young Somali men were openly and blatantly recruited to join the Transitional Government Forces (TGF) fighting al-Shabaab at the time. Although the exercise was later abandoned, damage had already been done as most of these fighters, with arms and training from the KDF ended up joining the ranks of al-Shabaab. This demonstrates complacency on the part of the government which is supposed to protect the lives of civilian populations in distress of terror from the al-Shabaab militia.

What are the implications of forcibly sending refugees to Somalia?

The first and obvious implication would be Kenya would be in violation of its national and international obligation to protect refugees. The law dictates that refugees cannot be forcibly taken back to their country of origin where the threat to their lives or physical integrity still exists. This is the principle of non-refoulement. In the Somali case, al-Shabaab is still a real threat for Somali refugees and this could be the reason many of them are hesitant to return home despite there being a tripartite agreement aimed at voluntary repatriation of Somali refugees in safety and dignity.

Secondly, and perhaps not so obvious, is the danger of driving fresh recruits into the hands of al-Shabaab. Forcibly pushing these refugees into Somalia would first create resentment and secondly foment desperation. Al-Shabaab would be keen to use these two ingredients to recruit this population into its ranks.

Thirdly, and most importantly, it will divert attention from the real issues affecting our security system: corruption and complacency. Kenyans know only too well that billions of shillings have been diverted from public coffers for private gain. This includes security related contracts. Before the Garissa attack, there was huge public outcry over the level of corruption in the internal security docket (as it then was).

Another monster is the complacency levels within the security structure in Kenya. How often have we heard that intelligence of an attack here or there was available and nothing was done to prevent it? How often have we been regaled by blame games following a terrorist attack and nothing seems to change? During the Westgate attack it was the lack of coordination that prolonged the siege after KDF forces shot and killed a Recce company squad leader leading the latter to retreat. Again lack of coordination cost more lives in the Garissa attack where the Recce company took more than eight hours to arrive at the scene to conduct a 12 minute operation. It should not be lost on Kenyans that these lapses, what I call complacency, is the major reason the government cannot contain the terror menace.

What alternatives are there to forcible repatriation?

The first alternative to this is to officially recognize combating corruption and complacency as a key pillar to the counter-terrorism strategy in Kenya. These are the real challenges plaguing national security in the country. So long as these two exist, Kenyans may not know any reprieve from terror attacks.

Secondly, the intelligence and operation branches of the security forces should endevour to isolate and arrest those individuals in the camps recruiting refugees into al-Shabaab. These are the real culprits and a serious threat to Kenya’s national security.

Thirdly, the Government of Kenya should focus more on the voluntary repatriation process already in place. Through this process, Somali refugees will peacefully and voluntarily relocate into Somalia without the risk of bitterness that may drive them into the hands of the determined al-Shabaab operatives.

Conclusion

In conclusion, it should be noted that the refugee regime is a civilian and humanitarian affair. The regime has a protective element embedded in it that segregates genuine asylum seekers from individuals involved in military operations and terrorism. Forcibly sending Somali refugees into Somali may prove to be counter-productive especially if the Kenyan Government is serious about stemming radicalization. Seriously dealing with corruption and complacency will provide a long-term efficient counter-terrorism strategy as opposed to blanket condemnation of a population in need of protection.

What does ‘African solutions to African problems’ mean?

The Government of Kenya has embarked on yet another push to lead African states away from the International Criminal Court (ICC). The rallying call is that Africa needs to pursue African solutions to African problems. In other words the ICC is perceived as being insensitive in how it approaches the so called African problems. But the question is what exactly are these African problems? To answer this question this blog post looks at the deliberations around the formation of the African Court of Justice and Human Rights that has the capacity to adjudicate on international criminal matters.

A proposal to establish an African Court of Justice and Human Rights (ACJHR) that has the competence to determine international criminal matters was tabled at the just concluded African Union (AU) Heads of States meeting. The proposal is contained in a document called the Malabo Protocol. Therein, the details of what would constitute international crimes are spelled out. Other the infamous crimes of genocide, crimes against humanity and war crimes, 11 other crimes have been added to the list of international crimes that the court would deal with. Among these are Terrorism, Trafficking in Persons, Piracy among others.

Another proposal that was tabled at the meeting relates to the immunity of heads of states and other ‘senior government officials’ from prosecution of international crimes. This point is particularly contentious in view of the Kenyan cases involving the Kenyan Deputy President currently going on at the Hague. The African Heads of States appeared to agree that the immunity from such prosecution was imperative for peace and security in the region. They went further to suggest that the ICC would not work in the interest of African states if it ignored peace agreements settled between warring factions if it arrested and prosecuted the leaders of these factions for international crimes during hostilities. As an example of this logic, should President Salva Kirr or Riek Machar were to be arrested and prosecuted for international crimes then it would scuttle the peace process in the country.

Funding of the ICC and the referral mechanism were also faulted as being bias. A linkage was made between funding the ICC and the cases that usually end up at the court; that those countries that fund it seldom find their citizens being prosecuted at the Hague. Further to this, there was the claim that the United Nations Security Council (UNSC) referral mechanism is unfair as 3/5 permanent members are not signatories to the Rome Statute. Further to this the composition of the UNSC is deemed not to be representative enough to include an African state as a permanent member.

All this observations are accurate but in my view they miss the point completely. First to say that the ICC is on a mission to undermine the independence of African states is spurious at best. The ICC is established by the Rome Statute which all states are welcome to sign and ratify, which is what all these African states did. In addition to this, 50% of the cases handled by the ICC were referred there by African states. Further the ICC mechanism is complementary in nature which means that states have the primary responsibility to set up courts and try international crimes in their jurisdictions. It should not be forgotten that Kenya was given such an opportunity to set up such a tribunal but failed and that is how the accused found themselves in their current situation.

Secondly, I do not think that crimes against humanity, genocide and war crimes are ‘African problems that need African solutions.’ If anything, these are serious crimes of international concern that are abhorred universally and that threaten peace and security in the world. In other words save for the elongated list of other crimes listed as international crimes and which are covered by other international treaties as transnational crimes, the Malabo Protocol does not list any new exclusively African problem that it seeks to tackle.

Thirdly, the fact that the issue of immunity was unanimously agreed on by the Heads of States is likely to do more harm to accountability in African politics than solve the so called African problems. The ACJHR is more likely to be used as hammer for opposition politicians now that the ‘Crime of Unconstitutional Change of Government’ is listed as an international crime. This line of argument is especially poignant when you interrogate the ease with which African Governments refer cases of their opponents to the ICC e.g. the Ugandan case.

In reality there no African problems here unless we would agree with our leaders that certain heinous crimes are African problems. Further, if we accept the so called African solutions, it will further aggravate impunity in Africa in name of harmony and stability. There can never be stability without accountability!

(One of) The Problem(s) with Internal Displacement Discourse in Kenya

Internal displacement refers to the forcible movement of habitants in a country from one place in the country to another. Unlike the refugees, internally displaced persons do not cross internationally recognized boundaries. Internally displacement persons (IDPs) are forced to move from their habitual residence owing to human rights abuses, violence or development projects. Such people need protection of the state to guarantee their rights before, during and after displacement.

In Kenya, the IDP phenomenon has been popularised by the sad events following the disputed 2007 general elections. For those readers that may not be aware, in 2007 Kenya erupted into bloody chaos after the declaration of the then incumbent, Mwai Kibaki, as the president of the republic thereby heralding his second term in office. His main rival in the polls, Raila Odinga, disputed the results of the elections and supporters of both men went into a killing frenzy uprooting people from their homes in the process. Much can be said about the events such as their cause and who was ultimately responsible but that would be out of the scope of this post.

It is estimated that about 600,000 people (120,000 households) were displaced. A majority of them went into what were called IDP camps while others vanished into towns and other settlements to live with family and friends, the so called ‘integrated IDPs’.Images of these camps were beamed all over the world and stories of untold suffering laid bare in front of an international audience. During this time the term IDP became so common that it has almost instantly been tied to the phenomenon of post-election violence (PEV). Therein lies the problem.

That the term IDP has been strongly attached to PEV forced evictions presents a challenge to robustly addressing the issue of internal displacement in the country. This is manifested by the announcement by the Government that they have addressed all the issues of IDPs arising from PEV which has been translated in most quarters that there are no IDPs in Kenya. If one visits some of the areas struck with cases of perennial displacement, using the term IDP is almost a taboo among most Government officials because to them the situation was resolved by the Government and that the official Government line is that the IDP situation is an out tray issue. This is despite the glaring contradicting evidence on the ground.

Examples of these cases would further illustrate the problem. Let us first look at the implementation of the Prevention, Protection and Assistance of Internally Displaced Persons and Host Community Act, 2012 otherwise known as the IDP Act. The Act was passed in 2012 but until now it is yet to be fully implemented in spite of the mounting evidence that the country is still grappling with issues of internal displacement. However from the perspective of the Government the Act is being implemented and the corner stone of this argument is that they have managed to compensate some 8000 families affected by the PEV.

Whereas it is laudable that the Government has made good efforts to seek lasting solutions for the PEV internal displacement victims, the overemphasis on this group overshadows the purpose for which the Act was enacted. This is evident from how new cases of displacement have been handled. For example the Mpeketoni attacks in Lamu County that happened in June this year left over 1000 households as IDPs. No profiling was done by the Government and very little assistance was provided through the Directorate of Special Programmes in the Ministry of Devolution and Planing as is specified in the IDP Act. The same was the case in the the Rhamu attacks in Mandera County. This post attributes this to the overemphasis on PEV IDPs to the detriment of instituting a nationwide system that can systematically handle internal displacement issues in the country.

Furthermore, this overemphasis of the PEV IDPs has led to the creation of a way of thinking that IDPs are only those people who are displaced by violence or armed conflict. This means that people displaced to pave way for development projects are often ignored in the process. An example of this would be Kenyans forcibly removed from their lands in the Coast region to pave way for development or economic projects. Many a times it is reported as squatters being evicted from land but a closer look into most of these stories reveal a displacement pattern. This post attributes this line of thinking to the overemphasis of PEV IDPs as one of the causes.

There is also a popularization of a camp based IDP. In Kenya, when one talks about an IDP it conjures images of desolate human beings living in decrepit camp settings. This is mainly thanks to the image that was painted by the media of these IDPs. However next to nothing is said about those that never went into the camps; the so called ‘integrated IDPs.’ Despite the misgivings of this post on using the term ‘integrated’ there is a real issue here. Those people who were displaced and never went to the camps were never compensated further reinforcing the idea that camp IDPs are the real IDPs, something that may have contributed to fake IDP camps and fake IDPs sprouting all of the time.

Finally, there is another category of IDPs often overshadowed by the PEV IDPs. These group are the pre-PEV IDPs; Kenyans that were displaced prior to the unfortunate events of 2007/08. They too seem to have been forgotten like those displaced by the development projects in Kenya. It is as if they do not exist and that the IDP chapter only begins with the PEV IDPs and may very well end with them.

One of the problems with internal displacement discourse in Kenya is the overemphasis on the PEV IDPs. This post is in no way implying that PEV IDPs are not an important category of IDPs that need assistance, it is rather pointing out that they are a fraction of IDPs in Kenya. The overemphasis on PEV IDPs coupled with the announcement by the Government that there are no more IDPs in Kenya makes the efforts to prevent, protect and assist older cases as well as new cases of internal displacement a huge challenge. More effort should be put in sensitizing Kenyans as well as the fourth estate on the definition and portrait of an IDP so that all may grasp a larger picture of the internal displacement situation in Kenya. In the same breath, the Government ought to fully implement the IDP Act to ensure that older and new cases of internal displacement are systematically handled.