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“We Cannot Manage This Plight Alone Anymore”: Analysing the Kenyan Threats to Forcibly Repatriate All Somali Refugees from Dadaab Camp

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Refugees and Forced Migration in the Horn and Eastern Africa

Abstract

The closing of the Dadaab Refugee Camp has been at stake for several years already. However, in spite of the threats from the Kenyan government, the camp is still open, although relations between refugees and the local population are not optimal all the time. Through an analysis of the main legal instruments applicable at the situation and the practice put in place by both the Kenyan authorities and the organisations (governmental and non-governmental) working there, I highlight that Kenya cannot be the only responsible in handling Dadaab and all its issues. Repatriation of Somalis seems to be an option, but evidences show that this is not an option all the time and not for all the caseloads. But it is clear that a final solution should be found for all the Somalis living there because they need to know what their future holds. They do not deserve to continue living in the present incertitude for years, for decades or, worse, for the rest of their lives. As all the human beings, also Somalis in Dadaab need a peaceful and serene life that Kenya, without any external help, cannot provide to all of them.

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Notes

  1. 1.

    Blair E., Lough R. (21 September 2013) “Islamists claim gun attack on Nairobi mall, at least 39 dead”, Reuters, http://www.reuters.com/article/us-kenya-attack-idUSBRE98K03V20130921. Accessed 10 August 2018.

  2. 2.

    HRW (2 April 2015) “Kenya: at least 147 dead in heinous Garissa Attack”, http://www.refworld.org/docid/55239aea4.html. Accessed 10 August 2018.

  3. 3.

    HRW (1 January 1990) Human Rights Watch World Report 1989—Kenya, http://www.refworld.org/docid/467bb4911e.html. Accessed 10 August 2018.

  4. 4.

    UNHCR (no date available) Mid-Year Report 2001: 72, http://www.unhcr.org/3e6e16177.pdf. Accessed 10 August 2018.

  5. 5.

    United States Committee for Refugees and Immigrants (20 June 2001) US Committee for Refugees World Refugee Survey 2001—Kenya, http://www.refworld.org/docid/3b31e16510.html. Accessed 10 August 2018.

  6. 6.

    Kenya (30 December 2006) The Refugees Act, 2006, No. 13, http://www.refworld.org/docid/467654c52.html. Accessed 10 August 2018.

  7. 7.

    Kenya (22 December 2014) The Security Laws(Amendment) Act, 2014, No. 19, http://www.refworld.org/docid/4df202da2.html. Accessed 10 August 2018.

  8. 8.

    Following sub-sections of the same section clarify as follows: “(2) The National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya. (3) Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding 6 months only. (4) The National Assembly may review the period of variation for a further 6 months”.

  9. 9.

    Kenya, High Court (23 February 2015) Coalition for Reform and Democracy and others v. Republic of Kenya and others, Petition No. 628 of 2014, consolidated with Petition No. 630 of 2014 and Petition No. 12 of 2015, http://www.refworld.org/docid/54ecbdef4.html. Accessed 10 August 2018.

  10. 10.

    Ibid, para 427. The principle of non-refoulement is clearly enshrined in Article 33 of the UNGA (28 July 1951) Convention Relating to the Status of Refugees, UNTS, vol. 189: 137, http://www.refworld.org/docid/3be01b964.html. Accessed 10 August 2018. In detail, Article 33 (“Prohibition of expulsion or return (“refoulement”)”) stipulates: “(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. (2) The benefit of the present provision may not, however, be claimed by a refugee for whom there are reasonable grounds to regard as a danger to the security of the country in which he/she is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. In this regard, see also Attalo A. (6 July 2016) “The Ramifications of Kenya’s Decision to Expel Refugees from Dadaab Camp”, Oxford Human Rights Hub, http://ohrh.law.ox.ac.uk/the-ramifications-of-kenyas-decision-to-expel-refugees-from-dadaab-camp/. Accessed 10 August 2018: “[W]hile Article 33.2 of the 1951 Refugee Convention allows for lawful refoulement, the provision must be applied only on an individual and exceptional basis. The directive issued by the government however seeks to expel hundreds of thousands of refugees for the ostensible reason that terrorists were using Dadaab Camp as a hideout. Despite the threat posed by terrorism being beyond dispute, this cannot be used as an excuse for weakening fundamental human rights enshrined in both international and domestic laws binding to Kenya. Not only would this be a violation of an absolute and peremptory rule of international law, it may also amount to a crime against humanity”.

  11. 11.

    Redden J. (12 February 2012) “Dadaab: World’s biggest refugee camp 20 years old”, http://www.unhcr.org/news/makingdifference/2012/2/4f439dbb9/dadaab-worlds-biggest-refugee-camp-20-years-old.html. Accessed 10 August 2018.

  12. 12.

    Rawlence B. (17 May 2016) “Story of cities #44: will Dadaab, the world’s largest refugee camp, really close?”, The Guardian, https://www.theguardian.com/cities/2016/may/17/story-of-cities-44-dadaab-kenya-worlds-largest-refugee-camp-closed. Accessed 10 August 2018.

  13. 13.

    UNHCR (1–15 April 2018) Dadaab, Kenya (Operational Update), http://www.unhcr.org/ke/wp-content/uploads/sites/2/2018/05/15-April-Dadaab-Bi-weekly-Operational-Update.pdf. Accessed 10 August 2018.

  14. 14.

    Miller T, Kim AB, Roberts JM (2018), 2018 Index of Economic Freedom: 242–243, https://www.heritage.org/index/pdf/2018/book/index_2018.pdf. Accessed 10 August 2018.

  15. 15.

    The World Bank (19 April 2018) Kenya Overview, https://www.worldbank.org/en/country/kenya/overview. Accessed 10 August 2018.

  16. 16.

    UNHCR (19 June 2018) Global Trends 2017, Annex, Table I: 65, http://www.unhcr.org/5b27be547.pdf. Accessed 10 August 2018.

  17. 17.

    Ibid. 29.

  18. 18.

    Ibid. 49. In this regard, as stressed by Victor Nyamori from Amnesty International: “Without registration papers, unaccompanied minors and children who have been separated from their families making the arduous journey into Kenya from Somalia are also at heightened risk of exploitation, child labour and early marriage”. See Victor Nyamori (20 February 2018) Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse, https://www.amnesty.org/en/latest/news/2018/02/kenya-failure-to-register-somali-refugees-putting-them-at-risk-of-starvation-and-abuse. Accessed 10 August 2018.

  19. 19.

    Wesangula D (1 February 2016) “Dadaab: the city you cannot leave”, The Guardian, https://www.theguardian.com/global-development-professionals-network/2016/feb/01/dadaab-somalia-home-cannot-leave-refugees. Accessed 10 August 2018.

  20. 20.

    Redden J, above, note 11.

  21. 21.

    Hujale M (20 January 2016) “The refugee camp that became a city”, IRIN, http://www.irinnews.org/analysis/2016/01/20/refugee-camp-became-city. Accessed 10 August 2018.

  22. 22.

    UNGA (3 October 2016) New York Declaration for Refugees and Migrants: Resolution adopted by the General Assembly, para 73, A/RES/71/1, http://www.refworld.org/docid/57ceb74a4.html. Accessed 10 August 2018.

  23. 23.

    UNHCR, The Global Compact on Refugees (Final Draft) (26 June 2018) para. 54: 10.

  24. 24.

    Amnesty International (19 November 2016) Nowhere Else to Go: Forced Returns of Somali Refugees from Dadaab Refugee Camp, Kenya, https://www.amnestyusa.org/sites/default/files/dadaab_report_final_14_november_2016. Accessed 10 August 2018: “[D]espite the increase in returns, during the population verification exercise carried out in July and August 2016, UNHCR found that only 25% of the refugees in Dadaab were willing to return. In a survey by the medical NGO, Médecins Sans Frontières (MSF), 86% of refugees interviewed stated that neither they nor their family wanted to return to Somalia due to security concerns, including fear of forced recruitment by armed groups, and the lack of health care and other services available. According to UNHCR, since it launched a Return Help Desk in August 2014, 64,660 individuals, approximately 20% of the Somali refugee population, expressed an interest in returning to Somalia. While there is some variability across this data, all three information sources (the verification exercise, the MSF survey and the Returns Desk) point to the vast majority of people not wanting to return”.

  25. 25.

    UNSC (10 November 2016) The Situation in Somalia, Resolution No. 2317 (S/RES/2317, 2016), para 27, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2317(2016). Accessed 10 August 2018. In this regard, see also UNSC (21 April 2016) Press Statement on Somalia (SC/12333-AFR/3365), http://www.un.org/press/en/2016/sc12333.doc.htm. Accessed 10 August 2018: “The members of the Security Council expressed grave concern at the fragility of the security situation in Somalia. They reiterated their strong condemnation of attacks and recruitment of children by the terrorist group Al-Shabaab […] The members of the Security Council expressed concern about the fragile humanitarian situation in Somalia […], they urged all parties to facilitate timely, unhindered and safe access for humanitarian actors and to find durable solutions for the 1.1 million Somalis internally displaced and appealed donors to increase support to the humanitarian appeal for Somalia”.

  26. 26.

    UNSC (30 July 2018) The Situation in Somalia, Resolution No. 2431 (S/RES/2431, 2018), para 50, http://undocs.org/S/RES/2431(2018). Accessed 10 August 2018.

  27. 27.

    Yarnell M (4 November 2016) “Field Report: Kenya”, Refugee International: 11, http://reliefweb.int/sites/reliefweb.int/files/resources/20161104%2BSomalia.pdf. Accessed 10 August 2018.

  28. 28.

    Kenya (6 May 2016) Government Statement on Refugees and Closure of Refugee Camps, https://minbane.wordpress.com/2016/05/06/httpwp-mep1xtjg-2ed/. Accessed 10 August 2018.

  29. 29.

    Buchanan E (17 May 2016) “Kenya: Refugees face police persecution and death after disbanding of Department of Refugee Affairs”, International Business Timeshttp://www.ibtimes.co.uk/kenya-refugees-face-police-persecution-death-after-disbanding-department-refugee-affairs-1560474. Accessed 10 August 2018.

  30. 30.

    AFP (6 June 2016) “Kenya faces legal action over refugee camp closure”, ENCA,https://www.enca.com/africa/kenya-faces-legal-action-over-refugee-camp-closure. Accessed 10 August 2018.

  31. 31.

    Edwards A (ed. T. Gaynor) (9 May 2016) “UNHCR appeals to Kenya over decision to end refugee hosting”, http://www.unhcr.org/news/latest/2016/5/5730b5f36/unhcr-appeals-kenya-decision-end-refugee-hosting.html. Accessed 10 August 2018.

  32. 32.

    Amnesty International (7 November 2016) “Kenya: High Court to hear petition against closure of Dadaab refugee camp”, https://www.amnesty.ie/kenya-high-court-hear-petition-closure-dadaab-refugee-camp/ Accessed 10 August 2018.

  33. 33.

    High Court of Kenya (Constitutional and Human Rights Division) (9 February 2017) Kenya National Commission on Human Rights and Kituo Cha Sheria v The Hon Attorney General and al., Constitutional Petition No. 227 of 2016: para i: 32–34.

  34. 34.

    Ibid, para ix: 36.

  35. 35.

    Ibid, para ii: 34–35.

  36. 36.

    Ibid, para iv: 35: (2.5): “The general rules of international law shall form part of the law of Kenya”; (2.6): “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”.

  37. 37.

    Ibid, para vi: 35. For the text of Article 33, see above, note 10. Section 18 reads: “No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to subjected any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where: (a) the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or (b) the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country”.

  38. 38.

    Ibid, para vii: 35.

  39. 39.

    10 August 2018.

  40. 40.

    Website of the Department of Refugee Affairs, http://www.refugeeaffairs.go.ke/. Accessed 10 August 2018.

  41. 41.

    Al Jazeera Staff (3 June 2016) “Kenya’s plan to shut Dadaab refugee camp criticised”, Al Jazeera, http://www.aljazeera.com/news/2016/06/dadaab-refugee-camp-somalia-diplomat-opposes-closure-160603051614121.html. Accessed 10 August 2018.

  42. 42.

    Ibid.

  43. 43.

    Yarnell M above, note 27: 5.

  44. 44.

    For an analysis of the 2013 Tripartite Agreement, see below, para 13.4.

  45. 45.

    Al Jazeera Staff, “Kenya’s plan to shut Dadaab refugee camp criticised” above, note 41.

  46. 46.

    Menkhaus K (7–8 January 2012) “After the Kenyan Intervention in Somalia”, The Enough Project, http://www.enoughproject.org/files/MenkhausKenyaninterventionSomalia.pdf. Accessed 10 August 2018.

  47. 47.

    Zimmermann K (22 October 2011) “Timeline: Operation Linda Nchi”, Critical Threats, https://www.criticalthreats.org/analysis/timeline-operation-linda-nchi. Accessed 10 August 2018.

  48. 48.

    Atta-Asamoah A, Kisiangani E (25 October 2011) “Kenya’s ‘Operation Linda Nchi’ has far-reaching implications for the two countries and for the region. Was this thoroughly thought through and if it was to protect Kenya’s tourism industry from attacks by Al-Shabaab, what will be the cost of a full-scale war on its borders?”, Institute for Security Studies (ISS), https://www.issafrica.org/iss-today/implications-of-kenyas-military-offensive-against-al-shabaab. Accessed 10 August 2018.

  49. 49.

    Anderson DM, McKnight J, “Kenya at War: Al-Shabaab and its Enemies in Eastern Africa”, 114 African Affairs (2015) 27.

  50. 50.

    Atta-Asamoah A, Kisiangani E above, note 48.

  51. 51.

    UNHCR (20 August 2014) Addis Ababa Commitment towards Somali Refugees, para 4, 2 http://www.refworld.org/docid/5600f1804.html. Accessed 10 August 2018.

  52. 52.

    Ibid, para 6, 2.

  53. 53.

    OAU (10 September 1969) Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, http://www.refworld.org/docid/3ae6b36018.html. Accessed 10 August 2018.

  54. 54.

    UNGA, New York Declaration, note 22, para 68, 13. In this regard, see also UNHCR, The Global Compact on Refugees above, note 23, particularly Part III A (Programme of Action/Arrangement for Burden and Responsibility Sharing).

  55. 55.

    “In the aftermath of the signing, on 10 November 2013, of the Tripartite Agreement, between the governments of Kenya and Somalia and UNHCR, governing the voluntary repatriation of Somali refugees living in Kenya, a pilot project to assist returns of Somali refugees from Kenya to Somalia was officially launched on 8 December 2014. This project targeted refugees intending to return to the three (3) districts of Baidoa, Kismayo and Luuq in Somalia. During the pilot phase, 2589 refugee returnees were supported with return assistance and reached their destinations without encountering any specific security incidents or ending up in a situation of internal displacement. As agreed by the Tripartite Commission which was established under the aforementioned Tripartite Agreement to supervise its implementation, the pilot project ended on 30 June 2015 and is now replaced by a new set of enhanced arrangements to support voluntary repatriation from July 2015 contained in this operational plan”. See UNHCR (29 July 2015) Voluntary Repatriation of Somali Refugees from Kenya (Operations Strategy 2015–2019) 5, http://www.unhcr.org/561627e39.pdf. Accessed 10 August 2018.

  56. 56.

    Article 5.1 of the 1969 OAU Convention clearly stipulates: “(1) The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will”.

  57. 57.

    “The two leaders [the Presidents of Kenya and Somalia]: (5) Committed to working jointly on the orderly, humane and dignified of the repatriation of the Somali refugees back to Somalia as per the Tripartite Agreement; (6) Underscored that the Tripartite Agreement provides the framework for fast-tracking orderly, humane and dignified repatriation of the Somali refugees”. See Joint Communique of the Republic of Kenya and Federal Republic of Somalia (8 June 2016) paras 5–6, http://www.president.go.ke/2016/06/08/joint-communique-of-the-republic-of-kenya-and-federal-republic-of-somalia/. Accessed 10 August 2018.

  58. 58.

    UNHCR (10 November 2013) Tripartite Agreement between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees Living in Kenya, 2013, http://www.refworld.org/docid/5285e0294.html. Accessed 10 August 2018.

  59. 59.

    For a definition of “reintegration” see UNHCR (May 2004) Handbook for Repatriation and Reintegration Activities, 5, http://www.refworld.org/docid/416bd1194.html. Accessed 10 August 2018: “Reintegration is a process that should result in the disappearance of differences in legal rights and duties between returnees and their compatriots and the equal access of returnees to services, productive assets and opportunities. Such a process assumes that refugees return to societies that are more or less stable. […] Indeed one of the challenges in reintegration is to preserve gains made in exile when refugees return to more traditional social structures. Reintegration in this sense can be a socially transformative process. The ‘end state’ of reintegration is the universal enjoyment of full political, civil, economic, social and cultural rights. Reintegration, therefore, is a collective responsibility under government leadership; some actors (e.g. UNHCR and other humanitarian agencies) play a lead role in the earlier stages, while other actors (e.g. development agencies) play a greater role later in the reintegration process. Given [these] definitions […] the facets of reintegration are: Legal: Access to legal processes; legal support for ownership of property, land and housing; Political: Stable government; full participation in political processes; gender equality in all aspects of political life; freedom of thought and expression; protection from persecution; Economic: Access to productive resources (e.g. land, agricultural inputs and livestock); and Social: Access to services; security; absence of discrimination; community-level dispute resolution”.

  60. 60.

    UNHCR (May 2016) UNHCR Position on Returns to Southern and Central Somalia (Update I) para 23, 13 http://www.refworld.org/pdfid/573de9fe4.pdf. Accessed 10 August 2018.

  61. 61.

    HRW (14 September 2016) Kenya: Involuntary Refugee Returns to Somalia, https://www.hrw.org/news/2016/09/14/kenya-involuntary-refugee-returns-somalia. Accessed 10 August 2018: “During an August 2016 visit to Dadaab by Human Rights Watch, refugees described intimidation by the Kenyan government, silence over alternative options that would allow them to remain in Kenya, inadequate information on conditions in Somalia, and a USD400 UN cash grant they would forfeit if they were deported later this year. The refugees said that these factors were prompting many camp residents to return now to Somalia, where they face danger, persecution, and hunger”.

  62. 62.

    Adow M (10 June 2016) “Dadaab camp refugees offered cash to return to Somalia”, Aljazeera, http://www.aljazeera.com/news/2016/06/dadaab-camp-refugees-forced-return-somalia-160610093959604.html. Accessed 10 August 2018: “We have no reason to stay here”, Addawe told Al Jazeera. “Kenya says we are unwanted guests. We have to go back home”. […] They are leaving the camp before the deadline. Those willing to return are given some cash to help them settle back home, before being taken across the border by bus”.

  63. 63.

    UNHCR, Voluntary Repatriation of Somali Refugees from Kenya (Operations Strategy 2015–2019) above, note 55, 13: “After the confirmation of the voluntariness of the decision to return, UNHCR provides return assistance comprising pre-paid transportation, a cash grant of USD120 per individual (USD150 for persons with special needs) to refugees travelling by road or USD60 per individual (USD75 for persons with special needs) to those travelling by air from Dadaab and Kakuma. Urban-based refugees travelling through Nairobi receive USD80 (USD100 for persons with special needs)”.

  64. 64.

    Ibid, 15.

  65. 65.

    UNHCR (January 1996) Handbook on Voluntary Repatriation: International Protection, http://www.refworld.org/docid/3ae6b3510.html. Accessed 10 August 2018.

  66. 66.

    Ibid, para 2.3 (“Voluntariness”), no indication of page provided.

  67. 67.

    Ibid, para 4.2 (“Information Campaigns”), no indication of page provided.

  68. 68.

    Idem.

  69. 69.

    Idem.

  70. 70.

    UNHCR (29 July 2015) Voluntary Repatriation of Somali Refugees from Kenya Operations Plan: July 2015–December 2019 (July 2015–June 2016) 10–11, http://www.unhcr.org/561627e39.pdf. Accessed 10 August 2018. In detail, the tasks of the RHD should be the following: “(a) Counselling of the situation in the area of planned return in Somalia, in particular with regard to security, public services and available humanitarian assistance; (b) Provision of regular area of origin general information; (c) Travel conditions on road from Kenya to Somalia border and on transit to final destination areas in Somalia, especially with regard to safety and security; (d) Provision of family reunification services and information to prevent child trafficking risks; (e) Completion of return counselling questionnaire to verify voluntary nature of the decision to return; (f) Provision of information on the available UNHCR humanitarian assistance for returning refugees in Kenya and Somalia; (g) Facilitation and guidance on documentation and procedures required to benefit from return assistance (Government of Kenya movement pass, completion of Voluntary Repatriation Form, requirement to surrender ration card, Kenya government issued alien/refugee identity card, residential plot); (h) Provision of a Frequently Asked Questions leaflet for post counselling reference by refugees; (i) Initial mine risk education, sexual and gender-based violence and child protection awareness; (j) Issuance of civil and educational documentation for individuals who do not have them; (k) Registration of refugees who freely and voluntarily decide to return to Somalia in order to provide targeted protection and community services, particularly with regard to people with specific needs. In addition, de-registration of returning refugees to ensure that the integrity of the population database is maintained and to facilitate protection and reintegration monitoring in Somalia; (l) Composition of passenger manifest and sharing with UNHCR Somalia and WFP; (m) Facilitation of medical health screening for returning refugees; (n) Support referral for the collection of the cash grant (USD120 per person or USD150 per person with special needs as certified by a medical practitioner on the Fit to Travel Form); Refugees returning by air transport will receive USD60 (USD75 for people with specific needs). Refugee traveling from Nairobi USD80 (USD100 for people with specific needs); (o) Support referral for the collection of core relief items and high energy biscuits”.

  71. 71.

    UNHCR, Handbook—Voluntary Repatriation: International Protection, above, note 65, para 2.3 (“Voluntariness”), no indication of page provided.

  72. 72.

    Ibid, para 4.2 (“Information Campaigns”), no indication of page provided.

  73. 73.

    Ibid, para 4.1 (“Establishing the Voluntary Character of Repatriation”), no indication of page provided. In this regard, see also HRW, Kenya: Involuntary Refugee Returns to Somalia above, note 61.

  74. 74.

    UNHCR (26 July 2016) “UNHCR appeals for additional USD115 million for voluntary return, reintegration of Somali refugees from Dadaab camps”, http://www.unhcr.org/news/press/2016/7/5797585c4/unhcr-appeals-additional-115-million-voluntary-return-reintegration-somali.html. Accessed 10 August 2018.

  75. 75.

    UNHCR, Refugees in the Horn of Africa: Somali Displacement Crisis, Dadaab, http://data.unhcr.org/horn-of-africa/region.php?id=3. Accessed 10 August 2018.

  76. 76.

    UNHCR (1–15 April 2018) Dadaab, Kenya, http://www.unhcr.org/ke/wp-content/uploads/sites/2/2018/05/15-April-Dadaab-Bi-weekly-Operational-Update.pdf. Accessed 10 August 2018.

  77. 77.

    UNHCR Joint Communiqué: Ministerial Tripartite Commission for the Voluntary Repatriation of Somali Refugees from Kenya to Somalia (25 June 2016) http://www.unhcr.org/news/press/2016/6/576ea0474/joint-communique-ministerial-tripartite-commission-voluntary-repatriation.html. Accessed 10 August 2018. In this regard, see also UNHCR (27 January 2015) Dadaab Refugee Camps, Kenya support to the spontaneous voluntary return of Somali refugees from Kenya, 1: “The UNHCR, Government of Kenya and partners have, as of 27 January 2015, supported 1166 refugees to return home from Kenya to Somalia under the current voluntary return pilot project […] All refugees have reached their final destination in safety and dignity. There are no reports of security incidents affecting the returnees, or of return to a situation of internal displacement”. See https://data.unhcr.org/horn-of-africa/download.php?id=1517. Accessed 10 August 2018.

  78. 78.

    About the access to basic services, see UNHCR (21 April 2016) Kenya Comprehensive Refugee Programme 2016: Programming for Solutions, https://data.unhcr.org/SouthSudan/download.php?id=2739. Accessed 10 August 2018: “[W]ithout creation of suitable conditions in Somalia, Somali refugees in the camps may not opt to return in significant numbers, and the return of those choosing to do so is unlikely not be sustainable. In numerous areas, conditions provided to Somali refugees in the camps or elsewhere in Kenya are far better than what these refugees are likely to find in areas of return. Access to adequate health and educational facilities/services in Somalia are just two obvious examples. Moreover, Somali refugees in Kenya have concretely pointed to the lack of basic services among the reasons for their reluctance to return […] Meanwhile, while waiting for longer term efforts to yield concrete results, more specific assistance is being currently considered for returnees, in addition to the current return package, such as coverage of school fees for each returnee child attending primary or secondary school for a period of one year, or free health care for each returnee for a period of one year. Harmonization with the assistance provided to IDP returnees and returnees from other countries would have to be ensured”.

  79. 79.

    UNHCR, Joint Communiqué above, note 77.

  80. 80.

    Hassan MO (29 August 2016), “Somalia Blocks Returnees, Cites Inadequate Humanitarian Support”, Voa News, http://www.voanews.com/a/somalia-blocks-returness-cites-inadequate-humanitarian-support/3485367.html. Accessed 10 August 2018.

  81. 81.

    Buchanan E (30 June 2016) “Kenyan refugees may be forced to join al-Shabaab or face sexual abuse if repatriated to Somalia”, International Business Times, http://www.ibtimes.co.uk/kenya-refugee-repatriation-somalia-may-see-many-join-al-shabaab-face-sexual-abuse-1568051. Accessed 10 August 2018.

  82. 82.

    Danish Refugee Council (DRC) and Norwegian Refugee Council (NRW) (2013) Durable Solutions: Perspectives of Somali Refugees Living in Kenyan and Ethiopian Camps and Selected Communities of Return, 49, https://drc.dk/media/1311894/durable-solutions-perspectives-of-somali-refugees-2013.pdf. Accessed 10 August 2018.

  83. 83.

    UNHCR, UNHCR Position on Returns to Southern and Central Somalia (Update I), above, note 60, para 17, 12.

  84. 84.

    Danish Refugee Council (DRC) and Norwegian Refugee Council (NRW), above, note 82.

  85. 85.

    Buchanan E (22 August 2016) “Kenya softens its position on Dadaab refugee camp closures and refugees repatriation to Somalia”, International Business Times, http://www.ibtimes.co.uk/ngos-welcome-kenyas-decision-keep-dadaab-refugee-camp-open-1577383. Accessed 10 August 2018.

  86. 86.

    UNHCR (16 November 2016) UNHCR welcomes Kenya statement, urges flexibility on timeframes for Somali refugees, http://www.refworld.org/docid/582da2fb4.html. Accessed 10 August 2018.

  87. 87.

    Reuters Staff (16 November 2016) “Kenya delays closure of Somali refugee camp”, Reuters, http://www.reuters.com/article/us-kenya-somalia-idUSKBN13B13Q. Accessed 10 August 2018. In this regard, see also Yusuf M, Anyadike O (16 November 2016), “Reprieve but no solution for Kenya’s Dadaab refugees”, IRIN,http://www.refworld.org/docid/582db58d4.html. Accessed 10 August 2018.

  88. 88.

    European Parliament (17 May 2017) Resolution on the Dadaab refugee camp, No. 2017/2687(RSP), para 1, http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B8-2017-0300&format=XML&language=EN. Accessed 10 August 2018.

  89. 89.

    Ibid, para 3.

  90. 90.

    Ayandike O (19 May 2016) “Will Kenya really close Dadaab?”, IRIN, http://www.irinnews.org/analysis/2016/05/19/will-kenya-really-close-dadaab. Accessed 10 August 2018. See also UNHCR, Kenya Comprehensive Refugee Programme 2016: Programming for Solutions, above, note 78: 20.

  91. 91.

    Amnesty International, Nowhere Else to Go: Forced Returns of Somali Refugees from Dadaab Refugee Camp, Kenya, above, note 24: 6.

  92. 92.

    For an analysis of the SPP, see Reliefweb (18 November 2011) UNHCR Special Appeal–Kenya: Enhanced Security Partnership Project (SPP) 2011–2012,http://reliefweb.int/report/kenya/unhcr-special-appeal-kenya-enhanced-security-partnership-project-spp-2011-2012. Accessed 10 August 2018: “To address specific national security concerns with regard to law and order more effectively, a joint Government and UNHCR initiative, the Security Partnership Project (SPP), was launched in 2010. The core aims of the SPP are: (1) To reinforce the security environment in the refugee camps and surrounding hosting areas with an enhanced police presence as well as through community policing; (2) To maintain the civilian and humanitarian character of the institution of asylum and refugee camps in Kenya by overseeing and managing cross-border movements of people and their property through the establishment of an operational Liboi Screening and Reception Centre at the Kenya-Somalia border; and (3) To secure the humanitarian space, workers and assets for the effective delivery of essential services and material assistance to refugees. The project covers the refugee camps (and their extensions) in Dadaab and Kakuma, as well as reception and screening facilities, transit corridors and surrounding refugee hosting areas. In April 2011, the Government of Kenya and UNHCR signed a Memorandum of Understanding governing the project, which is for an initial period of 3 years and subject to an annual review as and when necessary”.

  93. 93.

    UNHCR, Kenya Comprehensive Refugee Programme 2016: Programming for Solutions, above, note 38: 19–20

  94. 94.

    Above, in correspondence of note 61.

  95. 95.

    HRW, Kenya: Involuntary Refugee Returns to Somalia above, note 61.

  96. 96.

    In detail, Section 16.2 stipulates: “(2) The Minister may, by notice in the Gazette, in consultation with the host community, designate places and areas in Kenya to be—(a) transit centres for the purposes of temporarily accommodating persons who have applied for recognition as refugees or members of the refugees’ families while their applications for refugee status are being processed; or (b) refugee camps”. Section 35.1 stipulates: “(1) An asylum-seeker or a refugee may apply to the Commissioner, through the refugee camp officer, for permission to travel outside a designated area”.

  97. 97.

    Kenya, High Court, Kituo Cha Sheria and others v. The Attorney General, Petition No. 19 of 2013, consolidated with Petition No. 115 of 2013, 26 July 2013, para 87, http://www.refworld.org/docid/51f622294.html. Accessed 10 August 2018.

  98. 98.

    IGAD (25 March 2017) Nairobi Declaration on Durable Solutions for Somali Refugees and Reintegration of Returnees in Somalia, paras 2.1 and 2.3, https://igad.int/attachments/article/1519/Special_Summit_Declaration._Nairobi_Declarationdocx.pdf. Accessed 10 August 2018.

  99. 99.

    UNGA, New York Declaration above, note 22.

  100. 100.

    UNHCR (October 2017) Global CRRF Update, http://www.unhcr.org/afr/events/conferences/5a09b1107/global-update-comprehensive-refugee-response-framework-october.html. Accessed 10 August 2018.

  101. 101.

    UNHCR (June 2018) Global CRRF Update,http://www.unhcr.org/afr/events/conferences/5b57390e7/global-update-comprehensive-refugee-response-framework.html. Accessed 10 August 2018.

  102. 102.

    UNSC (26 May 2017) The Situation in Somalia, Resolution No. 2355 (S/RES/2355, 2017), para 1, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2355(2017). Accessed 10 August 2018.

  103. 103.

    UNSC (27 March 2018) The Situation is Somalia, Resolution N. 2408 (S/RES/2408, 2018), para 1, http://undocs.org/S/RES/2408(2018). Accessed 10 August 2018.

  104. 104.

    Otuki N (26 February 2016) “Kenya buys Sh1bn pilotless aircraft in war on Al Shabaab”, Business Daily, http://www.businessdailyafrica.com/Kenya-buys-Sh1bn-pilotless-aircraft-in-war-on-Al-Shabaab/539546-3091184-klw836z/index.html. Accessed 10 August 2018.

  105. 105.

    Index Mundi, Country Comparison > Military expenditures – percent of GDP https://www.indexmundi.com/g/r.aspx?v=132. Accessed 10 August 2018.

  106. 106.

    UNHCR (17–18 May 2005) Strengthening Refugee Protection, Assistance and Support to Host Communities in Kenya and Comprehensive Plan of Action for Somali Refugees: Report on Kenya Stakeholder Consultation: 8, http://www.refworld.org/pdfid/53e1fc484.pdf. Accessed 10 August 2018.

  107. 107.

    Chkam H, “Aid and the Perpetuation of Refugee Camps: The Case of Dadaab in Kenya 1991–2011”, 35 Refugee Survey Quarterly (2016) 84.

  108. 108.

    UNHCR (21 March 2015) Kenya Comprehensive Refugee Programme, http://reliefweb.int/sites/reliefweb.int/files/resources/UNHCRKenyaKCRP2015.pdf. Accessed 10 August 2018.

  109. 109.

    Mwancha D (16 July 2015) “Local integration of Somali refugees, a workable option that Kenya refuses to consider”, Somali Agenda,https://somaliagenda.com/local-integration-of-somali-refugees-a-workable-option-that-kenya-refuses-to-consider/. Accessed 10 August 2018.

  110. 110.

    Article 34 (“Naturalization”) stipulates as follows: “The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings”.

  111. 111.

    For the list of all the ratifications to the 1951 UN Refugee Convention: http://www.unhcr.org/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html. Accessed 10 August 2018.

  112. 112.

    Article 2.6 stipulates as follows: “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”. See The Constitution of Kenya (27 August 2010) http://www.refworld.org/docid/4c8508822.html. Accessed 10 August 2018.

  113. 113.

    “IGAD convened its first Ministerial meeting on Migration in November 2016 and established the IGAD Sectoral Ministerial Committee on Migration to complement the functions of the two technical platforms, the RMCC and the RCP. The aim of the Ministerial Committee on Migration is to guide the migration policies and enhance the harmonization of various efforts and initiatives related to migration in the IGAD region and streamline these efforts for the benefit of the region”. See IGAD website, section Migration, http://migration.igad.int/migration-program/sectoral-ministerial-committee-on-migration/. Accessed 10 August 2018.

  114. 114.

    Amnesty International, Nowhere Else to Go: Forced Returns of Somali Refugees from Dadaab Refugee Camp, Kenya, above, note 24: 31.

  115. 115.

    Foucault M, “Of Other Spaces, Heterotopias” 5 Architecture, Mouvement, Continuité (1984): 46–49. Original Publication: Conférence au Cercle d’études architecturales (14 March 1967) https://foucault.info/doc/documents/heterotopia/foucault-heterotopia-en-html. Accessed 10 August 2018.

  116. 116.

    HRW, Kenya: Involuntary Refugee Returns to Somalia, above note 61.

  117. 117.

    Yarnell M above, note 27: 9–10.

  118. 118.

    Ibid, 22: “Despite improvements made in 2015, some facilities such as the Dhobley way station turned out to be unable to accommodate sustained return movements, particularly if three convoys of approximately 250 persons each were dispatched per week. In Mogadishu, a cap of 120 persons arriving per day has also been recommended and established. In Baidoa, a maximum of 100 persons per day has been recommended. In 2016, reinforcing and increasing reception facilities and capacity of partners will be necessary for the effective reception of the returnees from Kenya”.

  119. 119.

    IGAD, above n. 98, para 5.4.

  120. 120.

    Anker E (13 June 2018) “Nearly impossible to close Dadaab”, https://www.nrc.no/news/2018/june/nearly-impossible-to-close-dadaab-new-page/. Accessed 10 August 2018.

  121. 121.

    AU (26 May 2013) 50th Anniversary Solemn Declaration, adopted by the 21st Ordinary Session of the Assembly of Heads of State and Government of the African Union, Addis Ababa, letter E (vi), 5, https://www.au.int/web/sites/default/files/pages/31464-file-50th_anniversary_solemn_declaration_en.pdf. Accessed 10 August 2018.

  122. 122.

    I. Kant (1795) Perpetual Peace: A Philosophical Sketch, excerpts https://www.mtholyoke.edu/acad/intrel/kant/kant1.htm. Accessed 10 August 2018.

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  1. South African Research Chair in International Law (SARCIL), University of Johannesburg, Johannesburg, South Africa

    Cristiano D’Orsi

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  1. Department of Political Science, Aalborg University, Aalborg, Denmark

    Johannes Dragsbaek Schmidt

  2. Jomo Kenyatta University of Agriculture and Technology, Nairobi, Kenya

    Leah Kimathi

  3. Department of Political Science, School of Development and Strategic Studies, Maseno University, Maseno, Kenya

    Michael Omondi Owiso

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D’Orsi, C. (2019). “We Cannot Manage This Plight Alone Anymore”: Analysing the Kenyan Threats to Forcibly Repatriate All Somali Refugees from Dadaab Camp. In: Schmidt, J.D., Kimathi, L., Owiso, M.O. (eds) Refugees and Forced Migration in the Horn and Eastern Africa. Advances in African Economic, Social and Political Development. Springer, Cham. https://doi.org/10.1007/978-3-030-03721-5_13

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