Who is a Refugee?

This concept is fraught with a lot of misunderstanding especially in Kenya. Many Kenyans believe that a refugee is one exclusively running away from conflict. Consequently those not coming from countries that are perceived to be at war do not fall under this category of persons. It will be surprising that those who hold such a view would not agree that asylum seekers from Ethiopia or Eritrea should be considered as refugees. However this is an inaccurate view of the subject.

The term refugee in international law has a definite meaning. The meaning is governed by several legal instruments.  The first is the Geneva Convention of 1951 as read with the 1967 Protocol. These define a refugee as any person who owing to a well founded fear of persecution on the basis of race, religion, political opinion, nationality or membership to a particular social group is outside the country of his nationality or habitual residence and is unwilling or unable to present himself of the protection of that country. That is basically a paraphrased definition.

Owing to the wars/struggles of liberation that ravaged the continent (Africa), there was need to include in the definition those people running away from conflict. The Organization of African Unity (as it then was) came up with an additional criteria for defining a refugee. Thus they came up with a uniquely African document that borrowed the definition of the Geneva Conventions and added people fleeing from events that cause public disorder in either the whole or part of the country and those fleeing external aggression, occupation and foreign domination.

Flowing from this move by the OAU, there is the question on whether people fleeing natural calamities are included in this definition. While the mainstream humanitarian actors are of the opinion, I think different. The OAU refugee convention allows refugees fleeing from events seriously disturbing public order in any part or the whole of the country they are fleeing from. Therefore if a tsunami or hunger ravages a country and is deemed to seriously disturb public order, people fleeing from such countries should be considered as refugees.

Closer home, Kenya has a Refugees Act which was enacted in 2006. The definition therein is the same as the one provided under the OAU convention. It basically has a domestication effect as well as provide the day-to-day management of refugees. Owing to the promulgation of the Consitution of Kenya, 2010 acts of Parliament have to undergo reviews. The Refugees Act is no exception. I do not see the definition changing and in any case Kenya as a signatory to the Geneva Conventions and the OAU convention which according to article 2(6) of our constitution form part of our laws.

Defining the term refugee is important to the realization of the right to seek asylum. Under the human rights rubric, it is a human right to seek and receive asylum. Thus defining the term refugees aids in identifying such persons that may need assistance in seeking asylum. It should be noted that this status is not permanent. This subject will be looked into in subsequent posts.