Implementation of international refugee law: the case of Kenya
This study examines how international refugee law is implemented in Kenya. It further examines the challenges faced in the implementation of international refugee law and how the state handles those challenges. As such it seeks to answer the questions: To what extent has Kenya been guided by the provisions of international conventions on refugees in handling refugee issues? What policies have been put in place to address the refugee situation in the country and to what extent do they conform to international refugee law? To what extent do security concerns affect the implementation of international refugee law? The findings of the study are based on documentary sources, field survey and observation. The study uses two theoretical approaches: liberal-idealism and realism. The central assumptions of the study are that implementation of international refugee law in the national setting is anathema in the absence of corresponding municipal legislation, and that a state security concerns jeopardize the protection of refugee rights. The major findings of the study are first, the way Kenya handles refugees is determined by security concerns. Second, there are numerous obstacles faced in attempts to meet the minimum set standards in implementation of international refugee law in Kenya. These include insufficient resources such as lack of trained manpower, the unprecedented continued influx of refugees as well as lack of viability of durable solutions due to continued conflicts in the principal source countries of refugees in the region, inadequate legislation, lack of comprehensive policy, among other problems. Third, although Kenya plays its part as a responsible member of the international community by giving asylum to hundreds of thousands of refugees, there exist cases of flagrant violations of international refugee law. These include violation of non-refoulement, police extortions, and discrimination against refugees by not only those who are supposed to give them protection, but by the host populations as well. Fourth, the UN refugee agency to a large extent plays major roles that the state should play in refugee protection And finally,majority of refugees in Kenya are less likely to benefit from the traditional durable solutions. Based on the findings, the study makes the following conclusions and recommendations. First, unless the right policies are put in place to address the challenges plaguing the implementation of refugee law in Kenya, attainment of the minimum standards would remain a mirage. Second, policies and practices that violate human rights of refugees worsen their conditions. Therefore, the policies and practices adopted by the host state should be well informed by the provisions of international refugee law. Third, since the traditional durable solutions leave vast majority of refugees in the status quo, alternative measures such as prevention of conflicts should be given priority. And fourth, states violate the law due to security concerns, social, economic and environmental impacts involved in Refugeeism, as well as failure of the international community to make their contribution, thus results into shift of host state's policy from 'open-door' to restrictive one, including refouler.