From horror to hopelessness: Kenya's forgotten Somali refugee crisis

I. Summary

Kenya is in the midst of a rapidly escalating refugee crisis. In 2008 alone, almost 60,000 Somali asylum seekers-165 every day-crossed Kenya's officially closed border with Somalia to escape increasingly violent conflict in Somalia and to seek shelter in three heavily overcrowded and chronically under-funded refugee camps near Dadaab town in Kenya's arid and poverty-stricken North Eastern Province. The camps now shelter over 260,000 refugees, making them the world's largest refugee settlement.

The continuous cross-border movement gives the impression that the closing of the border by the Kenyan government in January 2007 has not affected Somali asylum seekers' ability to seek refuge in Kenya. In reality, however, it has led to the Kenyan police forcibly returning asylum seekers and refugees to Somalia in violation of Kenya's fundamental obligations under international and Kenyan refugee law, and to serious abuses of Somali asylum seekers and refugees. Emboldened by the power over refugees that the border closure has given them, Kenyan police detain the new arrivals, seek bribes-sometimes using threats and violence including sexual violence-and deport back to Somalia those unable to pay. By forcing the closure of a UNHCR-run registration center close to the border, the Kenyan authorities have also seriously aggravated the humanitarian assistance needs among Somalis arriving in the three camps near Dadaab town.

The influx of tens of thousands of new arrivals into the already severely overcrowded and under-resourced camps has exacerbated shortages of shelter, water, food, and healthcare for all refugees-new and old. An unknown further number of Somalis, possibly in the tens of thousands, have travelled directly to Nairobi where most disappear into the city, receiving no support and remaining invisible to the outside world.

Kenya officially closed its border with Somalia days after the Ethiopian military intervened to oust the Union of Islamic Courts (UIC) from south-central Somalia. Apparently aimed at preventing the entry of fleeing supporters of the UIC into Kenya, the border closure has had an extremely negative impact on Somali civilians trying to flee the violence.

The border closure has allowed Kenyan police to forcibly deport Somali asylum seekers and refugees in flagrant violation of international law and has caused Kenyan political authorities to turn a blind eye to police corruption and abuses in the border areas and the camps. The authorities have also forced the United Nations High Commissioner for Refugees (UNHCR) to close its refugee transit center near the border, and for well over a year Kenyan authorities have failed to respond to calls for new land to decongest the camps. "To their credit, however, in an unspoken compromise, the Kenyan authorities allowed UNHCR to register almost 80,000 Somali refugees in the camps in 2007 and 2008, and, in February 2009, granted a limited amount of land to help begin decongesting the camps.

Under its Immigration law, Kenya has the right to regulate the presence of non-nationals in its territory and may, therefore, prevent certain people from entering or remaining in Kenya, including those deemed a threat to its national interests. However, international and Kenyan law obliges Kenya to allow all people claiming to be refugees ("asylum seekers") access to Kenyan territory to seek asylum with the Kenyan authorities or with UNHCR, and every asylum seeker has a right to have his or her case considered.

Since the border closure, the Kenyan authorities have deported hundreds, possibly thousands, of Somali refugees and asylum seekers, thereby violating the most fundamental part of refugee law, the right not to be refouled-forcible return to a place where a person faces a threat to life or freedom on account of race, religion, nationality, membership of a particular social group, or political opinion. Under its obligations in the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problems in Africa (1969 OAU Convention), Kenya is also bound not to send refugees or asylum seekers back to situations of generalized violence, such as in Somalia.

The Dadaab refugee camps were originally designed for 90,000 refugees, but by the end of February 2009 held 255,000, a 48 percent increase since January 2008. Because of the lack of new land to expand the camps, UNHCR declared the camps full in late August 2008. Between then and the end of February 2009, just over 35,000 new arrivals received no shelter and have been forced to sleep under open skies in makeshift shelters that provide little protection from the harsh weather, or in cramped confines with relatives or strangers who were already living in conditions well below minimum humanitarian standards. By the end of 2009, the camps are likely to hold at least 300,000 refugees and UNHCR estimates it could be as many as 360,000.

Aid agencies who already had limited resources are working overtime, struggling to meet basic minimum standards in food, water, shelter, sanitation, and healthcare assistance for the mushrooming camp population. Malnutrition rates have reached at least 13 percent since mid 2008 and children under the age of five suffer from high malnutrition rates below international standards. Tens of thousands of refugees almost certainly receive well below the required daily amount of water. Basic minimum sanitation standards are not being met. Healthcare agencies are understaffed, lack sufficient drugs, and cannot adequately meet refugees' healthcare needs: mortality rates for women, infants, and under-fives are all under minimum international standards. A recent international NGO assessment concluded that the camps face a situation that is conducive to a public health emergency.

For at least one year, UNHCR unsuccessfully tried to negotiate with Dadaab's local authorities for land for additional camps. The Kenyan negotiators demanded development aid and environmental protection measures in return for hosting the increasing refugee population. In the second half of 2008 a serious registration crisis - caused by a combination of the high number of monthly arrivals, UNHCR's decision to register new arrivals in only one camp after May, and limited UNHCR registration resources - left thousands of refugees, including the sick, women, and children, waiting weeks and even months to receive food.

As a result of mounting criticism from nongovernmental organizations, in December 2008 UNHCR changed its registration system to streamline registration of new refugees and issued a donor appeal for US$92 million. In early February 2009 the Kenyan Prime Minister promised the Deputy High Commissioner for Refugees new land for up to 50,000 refugees , one-third of the land required to adequately decongest the camps and to shelter the minimum number of expected new arrivals in 2009. However, UNHCR has not yet agreed with the local community living near the camps on numerous issues concerning how the camp is to be set-up and managed, leading to a delay in building it.

Kenya has never officially adopted a policy requiring Somali (or other) refugees to stay in camps. However, in practice Kenya and UNHCR have used a number of disincentives to limit the number of refugees choosing to live or move outside of camps. The first disincentive is the shared policy of the Kenyan government and UNHCR that refugees cannot receive humanitarian assistance outside of camps.

The second disincentive-which violates refugees' right to freedom of movement in Kenya- is the government's policy restricting officially sanctioned movement between the camps and other parts of Kenya. Once registered in Dadaab's camps, refugees are not permitted to travel unless they fulfil one or more unpublished criteria for obtaining a "movement pass" co-signed by the Kenyan authorities and UNHCR. If the police stop a refugee registered in the camps travelling without a movement pass, the refugee risks being arrested and fined, and, in practice, even worse (detention and refoulement).

The third disincentive for Somalis to live outside the camps has been UNHCR's lengthy refugee status determination procedures in Nairobi, compared to swift procedures in Dadaab's camps. In early 2009, Somalis still waited up to nine months to have their status determined, leaving them vulnerable to police abuses in the interim. In March 2009, UNHCR said it was seeking to cut the average time to two months.

Kenya has legitimate security concerns and a right to control its border, but closing the border to asylum seekers and the refoulement (unlawful forced return) of Somali asylum seekers and refugees violates Kenya's fundamental obligations under international and national refugee law. Kenya should immediately cease refoulement and take steps to ensure that refugees have access to assistance and protection in Kenya. To this end, Kenyan authorities should invite UNHCR to re-open its refugee transit center in Liboi and ensure that its police guarantee all Somali asylum seekers free movement to Dadaab's camps or to Nairobi - where UNHCR or the Kenyan authorities can register them as refugees.

Kenya should urgently take steps to end the impunity with which abusive police officers operate in the border areas, in and near Dadaab's camps, and between Dadaab and Nairobi.

Finally, Kenya should build on its recent commitment to provide new land for 50,000 refugees by cooperating fully with the United Nations Country Team in its efforts to secure land capable of accommodating a further 100,000 refugees to help decongest Dadaab's existing camps and to accommodate new arrivals in 2009.

To ensure that further land is rapidly made available, UNHCR should relinquish its control over negotiations with the local Kenyan authorities in Fafi and Lagdera Districts, which house Dadaab's camps, and help organize joint negotiations between development and environmental agencies in the United Nations Country Team and five Kenyan Ministries with refugee and development mandates relevant to Kenya's North Eastern Province.

Despite competing demands from other agencies struggling with other crises in Kenya, including chronic food shortages, donors should respond generously to UNHCR's supplementary appeal for funds to address the appalling situation in Dadaab's camps. Donor governments should also intervene with the Kenyan government to stop the refoulement of Somali refugees and asylum seekers.

With regard to Kenya's de facto encampment policy, the Government of Kenya should guarantee Somali asylum seekers' right to travel from Somalia directly to Nairobi, to apply for refugee status, if they so choose. The Kenyan authorities should grant full freedom of movement to all asylum seekers recognized as refugees in Dadaab's camps in accordance with Kenya's international and constitutional legal obligations, and UNHCR should advocate for full freedom of movement for all recognized refugees in Kenya. UNHCR should publish the criteria asylum seekers need to meet to justify applying for refugee status with UNHCR in Nairobi. UNHCR should also reduce to a minimum the average waiting time for Somali asylum seekers to be recognized as refugees to ensure that Somalis in Dadaab and in Nairobi are treated the same way, and to minimize the time that Somali asylum seekers are vulnerable to police abuses in Nairobi.