REFUGEE LAW AND HOW MUCH DO WE UNDERSTAND ITS IMPORTANCE? A NEXUS BETWEEN REFUGEE LAW AND HUMAN RIGHTS…WRITTEN BY MWAVISHI LETITIA SHITAGWA

To have a nationality and a sense of belonging gives one an entitlement to say that I belong. What happens when such belonging is taken away due to unforeseeable circumstances it leads to one being clueless on what connects them.

Refugees are a cadre of people that find themselves in such a situation and for them it is worse as the situation ends up being a threat towards there enjoyment of their source of belonging.

War is one of the huge factors among many that displaces people from their country of origin forcing them to start their lives in an unplanned manner in a different country sending them into waves of culture shock but with the end goal of BEING SAFE. Each country has their own sovereignty to protect its people and ‘outsiders’ entering a country that is not their origin…well it might be so difficult to belong when the rules are not to what they are accustomed to.

In Kenya the Refugee Act, No. 10 of 2021 has been enacted to RECOGNIZE, PROTECT and MANAGE refugees. This has been well crafted in line with the international instruments such as the 1957 Convention relating to the Status of Refugees; 1957 Protocol Relating to the Status of Refugees; 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

Kenya’s Constitution is a participatory of acknowledging international instruments as part of their law as per the provisions of Article 2(5) and 2(6) which guarantees that international law and treaty ratified by Kenya shall form part of the Kenyan Law but the same reading goes in line with Article 2 (1) which upholds that the Kenyan Constitution is supreme and any instrument that goes against the letter, intent and spirit of the Constitution shall be null and void on its applicability.

Refugee Law has been well guided under the principle of non-refoulment which has been described to mean that a person should not be forced to go back to their country of origin when the fear of persecution and/or threat still exists. This principle is an international law principle that aids State parties to be mindful of steps taken to cease offering a refugee the protection they need.

Human Rights/Humanitarian Law applicability in refugee law is a very key element that needs to be strongly witnessed when applying some of the United Nation principles such human rights which ascribes that human rights are universal and inalienable; indivisible; interdependent and interrelated. Human rights approach is multifaceted which looks deeply beyond the political arena of a situation it goes beyond the common principles such as human dignity; non-discrimination; equality before the law as it brings out the human person perspective angle.

DISECT OF THE REFUGEE ACT, NO. 10 OF 2021

Prior to the enactment of this piece of refined legislation, the Refugee Act, 2006 was a guide on matters refugee. The Act (2006) was very limited in which the powers on managing status of refugee was solely vested upon the Commissioner for Refugees Affairs and the decision to consider whether a person qualifies to be granted the status of refugee status was vested on the Commissioner. Where a person is aggrieved with that decision the person could Appeal to the Refugee Appeal Board and there after exhaust to the High Court

The Act also did not have provision on local integration of refugees which the new Act has provided for. It defines local integration to mean

‘…..means the gradual process through which refugees are incorporated into the society through a process that ensures that refugees attain broader rights,have improved standards of living and positively contribute to the social life of the host country’

The 2021 Act enactment has expanded its mandate to recognize, protect and manage status of refugee in a more practical approach as compared to the old Act. There is introduction of an Eligibility Panel which aids the Commissioner into looking into the eligibility of a person seeking to be issued with a refugee status. An introduction of a Refugee Advisory committee takes this role from the commissioner to focus into advising the Cabinet Secretary on matters relating to refugees and coming up with policies to aid the commissioner in implementing its functions.

The key take away is the mandate vested upon the Commissioner to ensure that refugees are integrated with the host communities in terms of accessing public institutions such as health facilities, educational facilities, employment etc. Further the Commissioner has the responsibility to put forth the needs of refugees when sustainable development plans are being considered by both level of governments. This a form of integration that was silent on the repealed legislation.

HUMAN RIGHTS BASED APPROACH

Human Rights based approach is a tool that is very necessary when considering making major national decisions that binds State and its various organs to be considerate of those it governs.

Article 10 ‘inhibits national values principle of governance which binds State organs, State Officers, public officers and all persons to have in mind when applying and/or interpreting the provisions of the Constitution; enacting, applying or interpreting any law or making and/or implementing public policy decisions.

Among the provided principles Human rights, Human dignity, equity, inclusiveness, equality are core in which decisions made should reflect the applicability of this principles. Refugee is an international recognized issue that internationally it cannot be handle politically but with the human rights based approach because the circumstances are humanitarian.

The new Act has features of Human Rights approach in a way that it an inclusive approach in that refugees are not that persons to be discriminated in national and county plans and that in line with promoting their recognition and protection they are not left out in critical decisions that may affect them despite of their status.

Human rights Approach looks into the human dignity principle, equal protection before the law, Non-discrimination principle and that every person as defined in the Constitution has an inclusive approach to cater for each person individually and specifically.

Major rights of persons with the refugee status include the right to remain in the country they have sought protection and not to be arbitrarily removed without due process being complied with in accordance to national legislations and international principles.

Human dignity is a universal recognized right that interlinks rights provided for the peoples’ enjoyment. A person’s dignity is to be recognized, respected, promoted and upheld in all circumstances in the absence of any form of unreasonable discrimination.

Laws and policies are mandated to be inclusive with specific provisions relating to refugees. There is need to have refugees be involved economically, socially, politically and culturally to ensure their integration to their host without feeling like a stranger in the circumstances they are forcibly ingrained up in.

20th JUNE is a day set aside as World Refugee Day this day is marked to celebrate refugee all over the world. The day is merely a celebration rather it is a recognition that the world has the refugee needs at heart and they are accommodated to enjoy their rights in the circumstances they are in. The 2022-year theme was the right to seek safety. The day was marked with three facets to it

Whoever-they are, people forced to flee should be treated with dignity;

Wherever- they come from people forced to flee should be welcomed;

Whenever-people are forced to flee, they have a right to be protected