From Refuge To War Zone: Policy Faılure In The Involuntary Return Of Somali Refugees To War-Torn Somalia By The Government Of Kenya

Abstract

In the world’s real state of nature, people are forcefully evicted from their homes every other time either because they are targets of their state’s persecutions or their state’s failure to protect them from violent conflicts and wars that make people’s homes inhabitable. They flee to other states in search of safety and because States, the world over, have collectively claimed the territories in form of physical boundaries, autonomy and sovereignty, these subjects of eviction transform to being refugees. Pushed from their homes, coupled with the fact that States continue to erect high border fences and walls and legislate restrictive migration policies aimed to wade off refugee claims, as they portray refugees as a burden and a problem to be addressed, their protection has been of primary concern to the international community. National asylum systems, however, have been inadequate and their procedures ineffective in addressing the plight of refugees. Structured around the following general research question: What are the policy failures in the motivations, interests and strategies by the Kenya Government, Federal Republic of Somalia, UNHCR and other stakeholders in pushing for repatriation of Somali Refugees spontaneously and prematurely?, the study answers the question by tracing the Kenyan asylum procedures over time with respect to the principles of non-refoulement and the right to asylum. Following a theoretical evaluation of these two key principles, both at the international and domestically in Kenya, and in the framework of the 1951 Refugee Convention, this study endeavored to show that the Kenyan asylum laws are not independent from the international asylum legal framework, and that Kenya must honour its international obligation to protect refugees. Taking account of Kenya’s international obligation, the Federal Republic of Somalia’s duty to create conditions of just return for its citizens and UNHCR’s mandate to protect refugees, the study continues its analysis by qualitatively investigating the role and motivation of those three parties in promoting return of refugees at a time when Somalia is still not safe and the Federal Government of Somalia has admitted to not being able to accommodate large-scale returns of its nationals. The study concludes that the Government of Kenya’s security and sovereignty concerns, the Somali Government’s push for legitimacy after decades of war, and UNHCR’s battle with host State’s pressure to return refugees informed the decision to prematurely evict refugees from Kenya. Moreover, the study reveals the inadequacy of the Kenya’s asylum space and advocates for hastening of the repeal of the Refugee Act 2006 by parliament so that refugees can adequately access protection. But before that happens, refugees in Kenya continue to suffer from inadequate protection challenges, and the international community and donor States are strongly encouraged to readapt their practices and align them to the refugee challenges of the 21st century. Top of the chart is the need to support Somalia’s demographic security challenge whose picture portrays an outright outlier in the demographic sense, besides fixing the physical security situation in Somalia.