Kenya: Could Kenya be the next champion of refugee rights?

Kenya: Could Kenya be the next champion of refugee rights?

London — “While the Kenyan government has yet to address refugee citizenship rights, it has shown signs of adopting more progressive refugee policies.”

Hadija*, a Somali in her 40s, has been living in the Dadaab refugee camp in Kenya for more than two decades. She has been married to a Kenyan national for 18 years and the couple has four children together. Her children, who are registered as Kenyan citizens, can leave the confines of the camp to access school, health care and visit her father, something Hadija cannot do, despite having the status. of refugees.

She is not alone in this situation. Kenya generously hosts more than 700,000 refugees emerging from protracted crises in the Great Lakes, Somalia, Ethiopia and other neighboring countries. Most live in camps: Kakuma and Kalobeyei in Turkana County, and Dadaab in Garissa County.

Many have lived in Kenya for more than a decade and many were born in the country. But Kenya’s strict camp policy, coupled with conflicting laws, means refugees are kept in perpetual limbo, never knowing life outside the camps and with limited options for meaningful integration or other durable solutions.

Hadija should have the right to apply for citizenship. Under Article 15(1) of the Constitution of Kenya, a person married to a citizen for seven years or more has the right to apply for registration as a citizen. The newly adopted Kenya Refugee Law also states that refugees must be granted the same rights and privileges as other foreign citizens in Kenya.

However, in contradiction to both the Constitution and the Refugee Act, the Kenya Citizenship and Immigration Act does not consider refugee IDs as proof of legal residence, denying refugees the right to apply for Kenyan citizenship. way than other foreign citizens.

The only other avenue Hadija could pursue under the Immigration Act would be to apply for a ‘Class M’ work permit, which would require her to find an employer willing to sponsor her and provide a detailed letter to the director of Immigration Services, among others. things. This is something that is impossible to do when living in a camp.

And while Hadija is lucky that her children are registered as Kenyan citizens, giving them rights that she does not have, many other children born to mixed Kenyan-refugee unions cannot access this right, even though it is also clearly established in the constitution. .

Progressive policies but unstable plans

While the Kenyan government has yet to address refugee citizenship rights, it has shown signs of adopting more progressive refugee policies in recent years.

Together with the United Nations Refugee Agency (UNHCR) and its development partners, it has drafted a multi-year, multi-million dollar ‘Shirika Plan’, which aims to transform Kenya’s growing city-camps into self-sustaining open settlements, where refugees can live, work and establish businesses among their local hosts.

The plan will give camp residents, like Hadija, the opportunity to live with their family, beyond the camp fences, and, more broadly, expand protection space for refugees.

The Kenya Refugee Act 2021, which complements the Shirika Plan, also grants refugees numerous rights that were not previously available. These include: employment in a profession or practice recognized by Kenyan authorities; granting refugee ID cards the same status as the “Alien Card” issued to other foreign nationals (making the renewal process less cumbersome); and, for East African Community (EAC) refugees, the option to renounce their refugee status and become EAC citizens.

These expanded rights are promising. But its scope remains limited. For example, although refugees may have their profession or practice recognised, their documents would have to be certified by the Kenya National Qualifications Authority.

The process would involve obtaining permission to leave the camp and travel to the capital, Nairobi, which would be both challenging and costly for refugees with little or no income. Similarly, the process for EAC refugees to renounce their refugee status remains unclear, including the rights they would have if they did so.

Freedom of movement also remains restricted under the Refugee Law, and refugees can only reside in “designated areas”, limiting prospects for meaningful integration across the country. Movement outside of these areas, without the proper permit, would result in a fine of around $1,500 or up to five years in prison.

This means that the majority of refugees would only be able to live and work in and around Garissa and Turkana counties, two economically disadvantaged areas currently lacking sufficient investment.

Civil society advances beyond the margins

As the Shirika Plan continues to develop, civil society groups are challenging inconsistencies in Kenya’s laws to expand refugee rights and offer meaningful integration.

Haki na Sheria, an NGO that seeks to empower marginalized communities in northern Kenya, has filed two petitions in the Garissa High Court. The first, presented in November 2022, focuses on access to citizenship for the children of a refugee and a Kenyan father. The second, introduced in February 2023, focuses on the citizenship rights of refugee spouses, like Hadija, who are married to a Kenyan citizen.

In February 2023, Kenya’s oldest legal empowerment organization Kituo cha Sheria also filed a petition at the Nairobi High Court. The petition requests that the court declare sections of the Citizenship and Immigration Law unconstitutional and asks that refugees gain the right to apply for permanent residence or citizenship like other foreign citizens.

The three petitions are awaiting hearings. If successful, they would have a significant impact on the lives of refugees in Kenya, paving the way for them to move freely, access services and contribute fully to its economy.