Is the Principle of Non-Refoulment undermining State Security: A Case Study of Kenya (2010-2014)

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RESEARCH PAPER SUBMITTED IN PARTIAL FULFILLMENT
OF THE BACHELOR OF LAWS (LL.B) COURSE. (GPR 410)
IS THE PRINCIPLE OF NON-REFOULMENT UNDERMINING
STATE SECURITY?
.
BY ARNOLD OCHIENG OGINGA
REG. NUMBER: G34/35563/2010
SUPERVISOR: PROF EDWIN ABUYA
DATE OF SUBMISSION: 9 MAY 2014
WORD COUNT (11,099)

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UNIVERSITY OF NAIROBI
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Signature_______________________________________________________
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DEDICATION
This work is dedicated to the Ogingas.
My parents, brothers and sisters you are my pillar, motivation and source of
inspiration.

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ACKNOWLEDGEMENT
My sincere gratitude goes to my supervisor Prof. Edwin Abuya for guiding me
through my paper. You have made me improve greatly on my research skills. I will
forever be indebted to you.
My fellow colleagues especially those with whom we were being supervised by Prof
Abuya, special acknowledgement also goes to Miss Armanda Mokaya, officials from
the Refugee Organizations’ that I managed to interview and source for information.(It
is unfortunate that you have to remain anonymous)
Above all I give God all the glory and honor for making everything possible.

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“THE GRANT OF ASYLUM TO SOMALI REFUGEES IS NEITHER A
PRIVILEGE NOR AN ACT OF CHARITY, IT IS AN INTERNATIONAL
OBLIGATION AND KENYA CANNOT DARE FORCEFULLY
REPATRIATE THE CURRENT SOMALI REFUGEES.”

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TABLE OF CASES.
1. Chan v Minister for Immigration and Ethnic Affairs (MIEA) 1989 169 CLR
379.
2. Haitian Centre for Human Rights v US, Case 10:675 Inter. Am Commission
on Human Rights.
3. Nicaragua Case, judgment, ICJ Reports 1986 pg14 [183]
4. R v Uxbridge magistrates’ Court and Another ex parte Adimi 199 IMMMAR
560.

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INTERNATIONAL INSTRUMENTS.
1. Council of Europe, European Convention for the Protection of Human Rights
and Fundamental Freedoms as amended by Protocols No. 11 and 14, 4
November 1950, ETS 5.
2. International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10)
chp.IV.E.1.
3. Organization of African Unity (OAU), Convention Governing the Specific
Aspects of Refugee Problems in Africa “OAU Convention” 10 September
1969, 1001 U.N.T.S.45.
4. Treaty Establishing the East African Community 7 July 2000.
5. UN General Assembly, Universal Declaration of Human Rights, 10
December 194, 217A (III)
6. UN General Assembly, Convention Relating to the Status of Refugees, 28 July
1951, United Nations, Treaty Series, vol. 189, pg 137.
7. UN General Assembly, Protocol Relating to the Status of Refugees 31 January
1967, Treaty Series, Vol. 606 pg 267.
8. UN General Assembly, Declaration on Territorial Asylum, 14 December
1967, A/RES2312(XXII)
STATUTES
1. Refugee Act of Kenya 2006.

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Contents
1.0 CHAPTER ONE. .................................................................................................... 4
1.1 IS THE PRINCIPLE OF NON-REFOULMENT, UNDER REFUGEE LAW
UNDERMINING STATE SECURITY? ...................................................................... 4
1.2 Introduction............................................................................................................. 4
1.3 Background to the study. ........................................................................................ 6
1.4 Problem statement................................................................................................... 8
1.5 Objectives................................................................................................................ 8
1.6 Research questions.................................................................................................. 8
1.7 Justification for the study. ....................................................................................... 8
1.8 Hypothesis............................................................................................................... 9
1.9 Methodology. ..................................................................................................... 9
1.10 Limitations of the study. .................................................................................. 10
1.11 Dissemination. .................................................................................................... 10
1.12 Theoretical framework. ....................................................................................... 10
1.13 Literature review................................................................................................. 11
1.14 Chapter breakdown............................................................................................. 18
2.0 CHAPTER TWO .................................................................................................. 20
2.1 THE PRINCIPLE OF NON-REFOULMENT ITS SCOPE AND RIGIDITY..... 20
2.2 Introduction........................................................................................................... 20

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2.3 The principle of non-refoulment under refugee law: What does the principle
entail?.......................................................................................................................... 21
2.4 What is the scope of the application of the principle? .......................................... 22
2.5 To what extent is the principle rigid? ................................................................... 25
2.6 What are some of the burdens the principle has placed upon kenya? .................. 29
Conclusion. ................................................................................................................. 30
3.0 CHAPTER THREE .............................................................................................. 32
3.1 Refugee protection vis-à-vis state security ........................................................... 32
3.2 Introduction........................................................................................................... 32
3.3 Refugee protection and the national security of a receiving state......................... 32
3.4 How does the principle undermine state security? ............................................... 34
3.5 What are some of the impacts of the principle of on the national security of
Kenya? ........................................................................................................................ 35
3.6 How are all these security impacts linked to the refugees? .................................. 37
3.7 How have other states acted with regard to such mass influxes of refugees in their
attempt to safeguard the security of their citizens?..................................................... 39
3.8 Conclusion ............................................................................................................ 42
4.0 CHAPTER FOUR................................................................................................. 44
4.1 Recommendations................................................................................................. 44
4.2 Introduction........................................................................................................... 44

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4.3 What is the way forward? ..................................................................................... 45
4.4 Conclusion ............................................................................................................ 52
4.5 APPENDIX A....................................................................................................... 56
4.6 INTERVIEW QUESTIONNAIRE. ...................................................................... 56
4.7 APPENDIX B ....................................................................................................... 58
4.8 LIST OF INTERVIEWEES.................................................................................. 58
4.9 BIBLIOGRAPHY................................................................................................. 60

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1.0 CHAPTER ONE.
1.1 IS THE PRINCIPLE OF NON-REFOULMENT, UNDER REFUGEE LAW
UNDERMINING STATE SECURITY?
1.2 Introduction.
Kenya hosts 544,480 refugees.1 Being a party to the 1951 convention on the
status of refugees,2 Organization of African Unity Convention Governing the
specific aspects of refugee problems in Africa 1969 3 and the 1967 Protocol
1
UN Statistical data. Available at <www.unhcr.org/cgi-bin/texis/vtx/page?page=49e483a16>
(accessed 25 October 2013)
2
Convention Relating to the Status of Refugees (Adopted 28 July 1951, entered into force 22
April 1954) 189 UNTS 137 (Refugee Convention) art 33, (hereinafter referred to as the
principle) See Erika Feller who posits that this Convention has a legal, political and ethical
significance that goes well beyond its specific terms; legal in that it provides the basic
standards on which principled action can be based; political in that it provides a truly
universal framework within which states can cooperate and share the responsibility resulting
from forced displacement; and ethical in that it is a unique declaration by the 141 states
parties of their commitment to uphold and protect the rights of some of the world’s most
vulnerable and disadvantaged people. He further adds that non-refoulment is one of the
fundamental concepts of the refugee protection regime. In Erika Feller, ‘International
Refugee Protection 50yrson: the Protection Challenges of the Past, Present and Future’ 2001
Vol 83 No. 843 International Journal of Refugee law. Available at
<www.icrc.org/eng/assets/files/other/581-606_feller.pdf> (accessed on 17 April 2014)
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Organization of African Unity Convention Governing specific aspects of refugee problems
in Africa of 10 September 1969, 1001 U.N.T.S.45. art II (3) George notes that a number of
countries still strive to meet their obligations towards refugees. He further adds that policies
and legislation which reflect positive and progressive trends can be seen. On the other hand,
many countries still remain on their statute books laws carried over from the days when the
explicit objective of government policy was the control and containment of refugees, not the
furtherance of their rights. In George Okoth-Obbo, ‘Thirty Years on: A Legal Review of the
1969 OAU Refugee Convention’ Vol 1 1995 International Journal of Refugee Law.
Available at <http://rsq.oxfordjournals.org/content/20/1/79.full.pdf> (accessed 18 April
2014)
See also Obonyo who posits that the 1969 OAU Convention is progressive and a landmark
instrument. Its refugee definition is wider to accommodate asylum seekers and that the
Convention is the only international legal instrument which establishes and codifies the idea
of voluntary repatriation. He further adds that this Convention is an important supplement to
the 1951 Convention. In Obonyo Jonas, ‘Reflections on the Refugee Protection Regime in
Africa: Challenges and Prospects’ Vol 14, June 2012, 71-94, University of Botswana Law
Journal. Available at. <http://www.pulp.up.ac.za/pdf/2013_o4/2013_04.pdf> (accessed 20
April 2014)

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Relating to the status of Refugees4 it affirmed its commitment by enacting the
Refugee Act of 2006. The principle of non-refoulment prohibits the return of
refugees to territories where they risk facing persecution. This paper seeks to
examine the rigidity of the principle and its implication on national security. The
question of refugees and the security of the refugee hosting state remain crucial.
‘‘Admission of displaced persons, particularly in massive numbers strains the
normal boundaries of the sovereignty of the refuge state and raises doubts over
regional peace and security. There are certain rights which, whether for natural
law reasons or due to the development of protective instruments and stances in
the 20th century, must be upheld. The right to seek protection and to receive it
outside the country of origin, not to be returned to a country where one’s life
would be endangered….’’5 Forceful repatriation amounts to violation and breach.
The questions then that arise are, is the principle undermining state security?
Should Kenya erode refugee laws for the protection of its citizens? Pirkko6 posits
that threats to human security within democratic societies warrant alternative,
precautionary measures, build ‘fortresses’, barriers through border controls and
defensive alliances. Should Kenya take such measures? No we should not. This
paper will further seek to propose ways through which Kenya can mitigate the
challenges posed by the influx without violating refugee laws more so the
principle.
4
UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967,
Treaty Series, vol. 606 p 267.
5
JV Thorburn, Refugee Protection in Europe: Lessons of the Yugoslavia Crisis. (Martinus
Nijhoff Publishers Hague 1998.) 17 [2]
6
P Kourala, Broadening the Edges: Refugee definition and International Protection
Revisited (Martinus Nijhoff Publishers Hague 1997)

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1.3 Background to the study.
Any refugee of Arabic decent is thought to be a terrorist as a result of most terror
suspects and the main Al-shabaab being of Arabic decent.7 Furthermore, Al-shabaab
has claimed responsibility for the terror attacks experienced in Kenya. It should
however be noted that the Al-shabaab is also composed of persons not of Arabic
decent. Mass influxes of refugees have made it hard to distinguish between genuine
refugees and terrorists otherwise known as Al-shabaab sympathizers.8 Calls have
7
Narmeen posits that the word Arabs reduces individuals and countries to a distinct target,
open to stereotypes and bias. Arabs are seen as terrorists and murderers due to how the media
presents them. Newspapers use key words such as extremists, terrorists and fanatics to
describe Arabs. He adds that this inability to separate stereotypes from reality governs not
only political policy, but economic policy as well. A stereotype or the reinforcement of a
stereotype removes the need to examine individuals on the basis of their character. He points
out that such stereotyping extends beyond Arabs as they encompass the Muslim religion. TV
programs and the mass media do not examine the fact that Islam religion preaches equality
and peace. The distortion of Islam and ensuing misconceptions lead TV viewers to believe
that it is a mysterious religion prone to acts of terrorism, violence and fanaticism. In Narmeen
El-Farra, ‘Arabs and the Media’ Vol 1, No. 2 Spring 1996, Journal of Media Psychology.
Available at <http://www.calstatela.edu/faculty/sfischo/Arabs.html> (accessed 18 April
2014)
See also Natsu who argues that, although Arabs trace their roots to the Middle-East and claim
many different religious backgrounds, and Muslims come from all over the world and adhere
to Islam, these distinctions are blurred and negative images about either Arabs or Muslims
are often attributed to both. He further notes that the stereotypes of Muslims and Arab
Americans as “terrorists” affect law enforcement as well. In Natsu Taylor Saito, ‘Symbolism
under Siege: Japanese American Redress and the “Racing” of Arab Americans as
“Terrorists” 8, 11-17 Asian Law Journal. Available at.
<http://www.academic.udayton.edu/race/06hrights/waronterrorism/Arabs01.htm> (accessed
17 April 2014)
See also Debra who shares the same sentiments and adds that popular culture and mass
media in the US have generated and sustained stereotypes of a monolithic evil Arab, these
stereotypes constructed all Muslims as Arabs and all Arabs as terrorists. In Debra Merskin,
‘The Construction of Arabs as Enemies: Post-September 11 Discourse of George W Bush’
27, 2004, 7(2) 157-175. Journal of Communication Inquiry. Available at
<http://www.asc.upenn.edu/usr/ogandy/C45405%20.lesources/Moskin%20the%20constructi
on.pdf> (accessed 18 April 2014)
8
The Al-shabaab insurgency has reportedly ‘leaked’ into the Dadaab camp. Bulletins that
Al-shabaab sympathizers are among the new arrivals of refugees are not uncommon among
those refugees who live in the camps.

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emerged for the closure of Dadaab camp.9The national security committee chairman
boldly declared the camps the country’s biggest security threats after the 21
September 2013 Westgate shopping mall terror attack10 Such calls for the closure of
the camp have met resistance. Various international organs have come forth to
condemn such calls for example Amnesty International.11 If Kenya takes such action,
it will be in breach of its international obligation. How can Kenya solve the security
threat posed by the mass influxes without violating international law? I agree with
Kourala when he opines that people being returned to countries where their safety
cannot be guaranteed. In these cases, it is not only the ultimate returning state which
is ethically, morally and legally responsible for the violation of the right to non-
return, but also the country in which the application for protection was made and
which started the chain of return.12 The security status of Dadaab has deteriorated.
The area has become high-risk and dangerous.13 Such conditions have negatively
impacted on the image of the camp and the inhabitants. Kenya is in a dilemma on
9
UNHCR set up Dadaab between October 91 and June 92 following a civil war in Somalia
that had culminated in the fall of Mogadishu and overthrow of the central government.
Available at <www.unhcr.org/4f439dbb9.html> (accessed 25 Oct 2013.)
10
He said the camps were hosting dangerous elements that ended up harming Kenyans. See
statement by Security Committee chairman in the Standard Online Newspaper of 30
September 2013. Available at <www.standardmedia.co.ke/mobile/?articlelD=2000094572->
(accessed 25October 2013.)
11 “Returning refugees to Somalia where all parties to the conflict continue to carry
out attacks would be in violation of international law instead, Kenya must protect
those living in a vulnerable situation in camps. Blaming Kenya’s security concerns on
thousands of refugees discriminate against some of the most vulnerable people in the
country.” Sarah, Amnesty International’s deputy Africa director, Tuesday
01/10/2013. Available at <www.amnesty.org/en/news-somalia-refugees-2013-10-01>
(accessed 25 October 2013)
12 Ibid 5 page 49 para 2.
13 UNHCR 2013 Country Operations Profile - Kenya Working Environment.
Available at <www.unhcr.org/pages/49e483a16.html> (accessed 30 October 2013.)

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whether to close the borders and forcefully repatriate the current Somali refugees or
to continue allowing mass flows from Somalia which jeopardizes the country’s
security. Such conditions have prompted the author to examine whether the principle
of undermines state security.
1.4 Problem statement
The study seeks to examine the rigidness of the principle and whether it has any
implications on the security of the country.
1.5 Objectives.
To study ramifications of the terror attacks in Kenya on refugees in the country and to
analyze ways in which the current refugee dilemma can be resolved without violating
the principle.
1.6 Research questions.
How can Kenya maintain national security without prejudicing the rights of refugees?
To what extent do security concerns affect the implementation of refugee laws more
so protection of non-refoulment?
1.7 Justification for the study.
The study is a contribution to the growing debate on whether to forcefully repatriate
Somali refugees in the light of the growing security concerns and the deteriorating
security status of the Dadaab camp which has extended in the north eastern part of the
country. This study seeks to offer solutions to the current dilemma. The study further
aims to advocate for flexibility in the principle under refugee law.

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1.8 Hypothesis.
The principle undermines state security. Security concerns necessitate the need to
erode refugee protection; through appropriate legislations states can strike a proper
balance between national security and refugee protection.
1.9 Methodology.
Secondary research was used. Various international and national legal instruments
relating to refugee law i.e. statutes, resolutions of the U.N organs were looked at.
Internet research aimed at capturing the most recent primary articles relating to this
topic was also employed.
Recorded television interviews on this topic were used with the aim of getting more
views from law enforcement agencies with regard to the current refugee situation.
The recorded interviews were handy owing to the difficulties in conducting such
interviews due to the bureaucracies’ involved.
Primary data was acquired by interviewing UNHCR, HIAS and the RCK officials
with the aim of getting their views on whether the principle undermines state security
and whether they are in support of the proposition that the principle should be
amended to allow for some flexibility. The interviews also sought to get to know
what they are doing in trying to help us solve the refugee problem, the effectiveness
of the measures they have taken so far and their opinion on whether we should
continue hosting refugees in spite of the security challenges.(see Appendix A, a
questionnaire used in the interviews)

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1.10 Limitations of the study.
Due to bureaucracies and various procedural requirements, I did not get the chance to
conduct face to face interviews with the police commissioner and various top rank
security personnel.
Getting the various contacts of the various individuals within the refugee
organizations proved to be a challenge. Getting responses to emails was also an
obstacle14, only a few questionnaires were filled15, some officials declined to be
interviewed.16
1.11 Dissemination.
This paper intends to disseminate the findings and recommendations in an academic
journal or an online article with the expectation that the recommendations will be
used in trying to solve the current refugee problem in Kenya.
1.12 Theoretical framework.
This paper is centered on the realist theory. The realist approach will be employed
at this study will be looking at the principle and the way it has been applied in Kenya.
The realist approach theory provides. ‘Life of the law has not been logic, it has been
experience.’ The realism in ‘legal realism’ is the use of that term in its colloquial
meaning: ‘being realistic’ as being worldly, perhaps somewhat cynical looking
14
Mabel, a staff in one of the refugee organization did not respond to my mail despite talking
to her via phone. At some point, my supervisor had to intervene in order to have some of my
interviewees respond for example Hazel.
15
Ozil was supposed to have one of my questionnaires filled by one of his staff members
stationed at Dadaab but this never happened.
16
Armanda, an official in one of the refugee organizations declined to be interviewed.

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beyond ideals and appearances for what is ‘really going on’17 Cotterrell posits that
law is to be viewed instrumentally, not as a doctrine deriving worth from its integrity
or normative unity as a system of abstract ideas but as a means to practical ends, an
instrument for appropriate governmental purposes’ he is of the opinion that a realist
view of legal theory is likely to view developments in legal philosophy in terms of
their functional relevance, or lack of relevance, to the legal needs of the time and
place.18
1.13 Literature review.
There are extensive writings on this topic.
a) THE PRINCIPLE OF NON-REFOULMENT, ITS SCOPE AND RIGIDITY
‘Principle of Non-refoulment, an Australian Perspective’ 19 considers the
interpretation and application of Article 33 from the perspective primarily of
Australian policy and case law. I do agree with the article whereby it stipulates that
the Refugee Convention provides a definition of the term refugee and it does not give
to a person who falls within the definition any right to enter or remain in the territory
of a contracting state.20 The article further examines the application of the principle
with regard to extradition and stating the position in Australia being that the
17
B Bix, Jurisprudence: Theory and Context (4th
edn London. Sweet and Maxwell 2006) pg
178.
18
R Cotterrell, The Politics of Jurisprudence: a Critical Introduction to Legal Philosophy
(Butterworths publishers London 1989.) 185.
19
The Australian Department of Immigration and Border Protection, ‘Principle of Non-
refoulment; an Australian Perspective.’ Working paper. Available
<www.immi.gov.au/media/publications/refugee/.../06_refoulment.pdf>(accessed 4 November
2013)
20
Ibid pg 6.

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extradition arrangements are designed to ensure that considerations relevant to the
non-refoulment obligation are taken into account in the extradition proceedings.21
The article restricts itself to the Australian perspective. It does not analyze the impact
of influx of refugees in other states. This paper will analyze the Kenyan situation with
regard to the application of the principle.
M Baaz22 analyses the principle under refugee law and international human rights
law. He discusses how it is under attack from different actors from having been
considered absolute, it has now started to erode especially due to the fact that many
states consider it necessary to resort to extreme measures to combat terrorism. He
asserts that as a result of perceived terrorism threats, a number of governments have
made reservations to the absolute nature of non-refoulment. They claim that there is
need for exceptions or a more flexible interpretation of the prohibition, taking state
security into consideration. Are such reservations permitted under refugee law? No.
His article mainly focuses on the principle of diplomatic assurance examining cases
of extradition and expulsion of individuals. He does not focus much on refugees
though. This article will be of great help as it expounds more on non-refoulment.
E Lauterpacht and D Bethlehem23 analyze the interpretation and application of the
principle. They propose it must be construed as encompassing the expulsion, return or
transfer of a refugee both to a territory where he or she may be at risk directly and to
21
Ibid pg 8.
22
M Baaz, ‘Diplomatic Assurance Undermining Non-refoulment’ Available at
<www.gupea.se/bitstream/2077/22053/1/gupea_2077-22053-1.pdf> (accessed 2 December
2013)
23
E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-
refoulment, (2001) Working paper Available at <www.refworld.org/docid/3b3702b15.html>
(accessed 4 November 2013)

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a territory where they may be at risk of subsequent expulsion, return or transfer to
another territory where they may be at risk. They assert that the implications of the
inclusion of the word ‘territories’ in article 33(1)24 is that the legal status of the place
to which the individual may be sent is not material and that it has wider significance
as it suggests that the principle will apply also in circumstances in which the refugee
is within their country of origin but is nevertheless under the protection of the armed
forces of another contracting state. This article however does not look into the impact
of the principle on the security of the host state.
Mushkat25 examines the 1995 closure of the Indochinese Refugees and Hong
Kong’s acts of 1991, the ‘Orderly Return Programme’ and the principle of non-
refoulment. She further analyses various deviations from the rule giving examples of
Thai ‘push-back’ policies of the late 1970’s and again in 1988, the towing of boats
out to sea by Malaysian authorities in 1989-90. The article questions whether a
deviation from the principle of non-refoulment is a new emerging customary norm of
international law and it examines whether Hong Kong breached its duty of non-
refoulment. The examples she gives of the deviations are evidence of the impacts of
the rigidness of the principle. She alludes to the rigidness of the principle by saying:
‘The normative strictness of non-refoulment has not yet been cast off.’26 This article
is important as it analyses the principle. It does not however talk about the impacts of
hosting large number of refugees. I will subsequently in this paper respond to the
24
ibid 2.
25
R Mushkat, ‘Mandatory Repatriation of Asylum Seekers is the Legal Norm of Non-
refoulment Dead?” [1995] 25 Hong Kong law journal 42-51. Available at
<www.heinonlinebackup.com/hol-cgi-bin/get-pdf_cgi?handles=hein> (accessed 4 November
2013)
26
Ibid pg 7.

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question she puts forth on whether deviation from non-refoulment is a new emerging
customary norm.
J Thorburn27 analyzes the practical experience of various temporary protection
mechanisms in Europe. He focuses mainly on European refugee crises by looking at
laws and policies of states and organizations with regard to those who flee armed
conflict. I do concur with her when she opines that non-refoulment is an essential and
very widely accepted and supported concept in international protection which
tempers claims to sovereign rights, overall admissions and offers a valuable safeguard
to not only refugees but, through its wider application, to all displaced persons who
have managed to cross an international frontier.28 He does not however give an in-
depth analysis of the rigidness of the principle. His article is limited to the study of
European practice with regard to refugees.
Baxewanos29 analyzing the principle, states that it prohibits a particular result not
a particular conduct. (None of the provisions under the 1951 Convention mentions
specific forms of action that are prohibited as explicitly held by the Refugee
Convention,) He further posits that refoulment is prohibited ‘in any manner
whatsoever. He opposes the notion that one essential rule of international human
rights law is the idea that state control entails state responsibility and that, more
specifically, ‘state competences and individual rights are two sides of the same coin’
27
ibid 5.
28
Ibid pg 130.
29
F Baxewanos, ‘Non-refoulment and Extraterritorial Immigration Control – the Case of
Immigration Liaison Officers
<www.intlaw.univie.ac.at/fileadmin/user_upload/int.../Baxewanoslipdf> (accessed 4
November 2013)

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He admits that in practice, it therefore seems difficult to envisage scenarios of
effectively complying with non-refoulment obligations without admitting asylum
seekers to a national asylum procedure.’30 He does not however look at the aspect of
the rigidness of the principle.
Hathaway31 admits that blunt denials of access to territories continue to face modern
refugees. He gives examples of actions by states that amount to non-refoulment.32 He
correctly posits that the duty of non-refoulment is not the same as a right to asylum
from persecution in at least two ways. 33 He further notes that the duty of non-
refoulment inheres on a provisional basis even before refugee status has been
formally assessed by a state party. He admits that there is no express provision
dealing with non-refoulment in instances of mass influxes under the 1951 Convention
but there is an implied authorization is such and in that it can be justified in the case
of mass influx only where it is the sole realistic option for a state that might otherwise
be overwhelmed and unable to protect its most basic national interests. He however
contends that such a reliance on an implied exception is not a happy solution for it is
30
Ibid pg 16.
31
James C. Hathaway, The Rights of Refugees under International law. (Cambridge
University Press,New York 2005)
32
He further states that blunt barriers can serve much the same end as border closures. He
gives examples like: summary ejection by officials, ejections being carried out by non-state
agents with the encouragement or toleration of authorities, interceptions at sea, rejection at
the borders, refusal to process claims to refugee status, adoption of non-entrée policies such
as visa requirements. See Ibid.
33
Firstly, that the duty of non-refoulment only prohibits measures that cause refugees to be
pushed back into the arms of the persecutors, it does not affirmatively establish a duty on the
part of states to receive refugees and secondly that a critical distinction between non-
refoulment and a right of asylum follows directly from the purely consequential nature of the
implied duty to admit refugees under Article 33 because the right of entry that flows from the
duty of non-refoulment is entirely a function of the existence of a risk of being persecuted, it
does not compel a state to allow a refugee to remain in its territory if and when that risk has
ended. See Ibid.

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unsatisfactory not only because it leaves states with only a blunt tool to respond to
difficult circumstances. Hathaway however, does not link the principle to security
challenges of the host state. He only talks of most basic national interests. I will use
some of his ideas to propound this research.
b) THE IMPACTS OF THE PRINCIPLE ON NATIONAL SECURITY.
P Kourala34 acknowledges that security conditions have from time immemorial
dictated actions of individuals and states. Threats to human security within
democratic societies warrant alternative, precautionary measures. National or regional
security threats still make states build ‘fortresses’, barriers through border controls
and defensive alliances. He further admits that the causes and magnitude of mass
movements are posing security concerns that need to be tackled and managed in a
more comprehensive manner than hitherto. I agree with him. He does not however
talk much about the rigidness of non-refoulment.
Crisp 35 examining the security situation at Dadaab and Kakuma identifies
categories of violence; domestic and community, sexual abuse, armed robbery,
violence within national refugee groups and refugees and local populations. This
article is of great importance as it outlines some of the impacts of hosting refugees.
The paper is centered on events that occurred in 1998 so it is probable that a lot has
changed at the camps since then. I will incorporate the 1998 situation with the current
34
ibid 6.
35
J Crisp, ‘New Issues in Refugee Research- a State of Insecurity: The Political Economy of
Violence In refugee-populated Areas of Kenya.’ Working paper no. 16. Available at
<www.unhcr.org/3ae6a0c44.pdf> (accessed 4 November 2013)

17
state of affairs at the camp. J Hyndman36 also analyses the situation at the camp. She
admits that the capacity of communities to cope with distress and dual humanitarian
crises is no doubt eroded by the fact that the displacement from previous rounds of
conflict has not been resolved and that chronic conflict over two decades and repeated
drought has taken a terrible toll on the livelihoods and security of the people in East
Africa. She too does not link the insecurities to the principle.
R Bruin and K Wouters37 address the balance between national security and the
protection against refoulment. They are of the opinion that membership of a terrorist
organization cannot in itself be qualified as a terrorist act. I disagree with this position
because such membership entails some form of responsibility under criminal law and
such members can be held liable as accomplices. They further urge states to uphold
the absolute or non-derogable character of the principle and to take steps necessary,
both legal and practical to prosecute suspected terrorists. They fail to address other
security challenges apart from terrorism. My paper will look at other security
challenges apart from terrorism.
P Emiko38 admits that members of the international community have under the
guise of protection of internal security, closed their doors to those individuals. He
36
J Hyndman, ‘A Refugee Camp Conundrum: Geopolitics, Liberal Democracy and
Protracted Refugee Situations.’ Volume 28 no 2, Journal of refugee studies. Available at
<https://pi.library.yorku.ca/ojs/index.php/refuge/article/view/.36472> (accessed 18 April
2014 )
37
R Bruin and K Wouters, ‘Terrorism and the Non-derogability of Non-refoulment.’
International journal of refugee studies. Available at
<www.oppenheimer.incgill.ca/IMG/pdf/Bruin-2.pdf> (accessed 4 November 2013)
38
P Emiko ‘Refugee Rights v State Security: Social Conditions of Refugees and the law.’
Available at <www.commonlii.org/in/journals/NALSARStulawRw/2008/6.pdf > (accessed 4
November 2013)

18
highlights on the vulnerability of the present framework of refugee law in the face of
restrictions imposed to preserve state security and its inadequacy in providing
adequate criterion for the determination of refugee status along with the
experimentation by various countries in their attempt to solve the latter issue. He is of
the opinion that host states are obliged to look beyond their security concerns and
address the humanitarian issues involved. He fails to look into the impacts of mass
influx of refugees.
1.14 Chapter breakdown
a) Chapter 1- Research proposal
b) Chapter 2: The principle of non-refoulment, its scope and rigidity.
This will examine the principle looking at its scope and rigidity and the burden it has
placed upon Kenya.
c) Chapter 3: The impacts of the principle on national security.
This will examine how the influx of refugees coupled with the principle has impacted
on security. It will analyze various state practices with regard to refugee protection
vis-à-vis protection of the right to security of its citizens. The main focus however
will be Kenya.
d) Chapter 4: Recommendations to conclusions.
Here the study will seek to provide recommendations to the problem caused by the
influx coupled with the principle. It will seek to provide solutions and alternatives

19
that will ensure state security is upheld and refugees’ rights are protected without any
violations. This will be followed be a conclusion of the research paper.

20
2.0 CHAPTER TWO
2.1 THE PRINCIPLE OF NON-REFOULMENT ITS SCOPE AND RIGIDITY.
2.2 Introduction.
The theory of state liability centers on the principle that every state must be held
responsible for the performance of its international obligations under rules of
international law, whether derived from custom, treaty or any other source of
international law therefore, failure to perform such obligations amounts to an
international wrong. 39 The United Nations General Assembly, in its Resolution
A/RES/49/169 of 20 December 1994 called upon states to take measures necessary to
ensure respect for the principles of refugee protection and the humane treatment of
asylum-seekers in accordance with internationally recognized human rights norm.40
This chapter proceeds on to look at the principle of non-refoulment under refugee
law. It examines its scope of application, rigidity and some of the burdens it has
placed upon Kenya. The main refugee instruments used here are the 1951
Convention, the 1969 OAU Convention and the Kenyan Refugee Act of 2006.41
39
C Beyani, ‘State Responsibility for the Prevention and Resolution of Forced Population
Displacements in International Law’ 1995 (special issue)131. International journal of Human
Rights.
40
Available at <www.un.org/documents/ga/res/49/a49r169.htm> (assessed on 21 January
2014)
41
Refugee Act no 13 of 2006.

21
2.3 The principle of non-refoulment under refugee law: What does the principle
entail?
Article 33 (1)42 provides that 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) further provides that the benefit of the present provision may not however, be
claimed by a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the community of
that country.
The 1969 OAU Refugee Convention43 reaffirms the above position in article 2 (3)
providing that no person shall be subjected by a member state to measures such as
rejection at the frontier, return to or expulsion, which would compel him to return to
or remain in a territory where his/her life, physical integrity or liberty would be
threatened for the reasons set out in Article 1, paragraphs 1 and 2.44
Article 2(6) further provides that for security reasons, countries of asylum shall, as far
as possible, settle refugees at a reasonable distance from the frontier of their country
of origin.
42
ibid 2.
43
ibid 3.
44
Persecution for reasons of race, religion, nationality, membership of a particular group or
political opinion or who is compelled to leave his country of origin or place of habitual
residence in order to seek refuge from external aggression, foreign domination or events
seriously disturbing public order.

22
Kenya being a party to the conventions, enacted the Refugee Act45 and incorporated
the principle under Section 18 which provides that, no person shall be refused entry
into Kenya, expelled, extradited from Kenya or returned to any other country or
subjected any similar measure if, as a result of such refusal, expulsion, return to or
remain in a country where the person may be subject to persecution on account of
race, religion, nationality, membership of a particular social group or political
opinion.
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.
2.4 What is the scope of the application of the principle?
The scope of the application of the principle is extensive. UN Resolution 55/74 of 12
February 2001 acknowledging article 14 of the Universal Declaration of Human
Rights46 provision that everyone has the right to seek and enjoy in other countries
asylum from persecution it calls upon all states to refrain from taking measures that
jeopardize the institution of asylum, particularly by returning or expelling refugees or
asylum seekers contrary to international standards. The resolution further condemns
all acts that pose a threat to the personal security and well being of refugees and
asylum seekers such as refoulment. 47 Does this mean that the principle applies to
persons who have not yet been granted asylum in a particular state? Lauterpacht and
45
ibid 41.
46
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III)
47
A/RES/55/74,12 February 2001, para 6 and 10. Available at <www.unhcr.org/cgi-
bin/texis/vtx/search?page=search&skip=49aea93a20&scid=49aea93a1a&comid=3b4f0ffa4.>
(accessed on 21 January 2014)

23
Bethlehem opine that the principle precludes any act of refoulment, of whatever form,
including non-admittance at the frontier that would have the effect of exposing
refugees or asylum-seekers to a threat of persecution. 48 Killian notes on the extra
territorial applicability of the principal in the high seas.49 Amnesty International in
their briefing50 with regard to the Syrian war51commented that all asylum-seekers
from Syria should be considered to be in need of international protection and further
stated that forcing such persons to return would amount to a violation of the principle
of non-refoulment. From the above, it is quite evident that the principle applies not
only to persons that have been accorded refugee status but also to persons who are
48
ibid 23 pg 46. Also see Haitian Ctr for Human Rights v US, Case 10: 675 Inter-Am. C.H.R,
Report No. 51/96, OEA/ser.l/v/11.95 7 rev. 157 (1997) where the court stated ‘The
commission shares the view advanced by the UN High Commissioner for Refugees in its
amicus curiae brief argument before the supreme court, that Article 33 had no geographic
limitations. Available at <www.umn.edu/humanrts/cases/1996/unitedstates51-96.htm>
(accessed 2 April 2014) para 157.
49
He posits that persons rescued on the high seas fall under the jurisdiction of the flag state,
which is however, in no way required to provide the rescues with asylum. He notes that
indeed, the flag state is not subject to any specific obligations at international law in this
regard, hence the practice of “next port of call”. This practice necessarily implies that the
coastal state is faced with the prospect of (at least temporarily) accepting the asylum-seekers
under the principle of non-refoulment. In Killian S. O’Brien, ‘Refugees on the High Seas:
International Refugee Law Solutions to a Law of the Sea Problem’ 3(2011)2
Journal of International Law, 715-732. Available at
<www.gojil.eu/issues/32/32_article_obrien.pdf> (accessed 31 March 2014)
50
Amnesty International Briefing, 13 December 2013. Available at
<www.whenyoudontexist.eu/content/assets/docs/An-International_Failure
The_Syrian_Refugee_Crisis.pdf> (accessed 17 January 2014)
51
Also known as the Syrian uprising or the Syrian crisis is an ongoing armed conflict
between forces loyal to the Ba’ath government and those seeking to oust it. The unrest began
on 15 March 2011. In April 2011, Syrian army was deployed to quell the uprising and
soldiers fired on demonstrators across the country. After months of military sieges, the
protests evolved into an armed rebellion. The unavoidable conclusion to be drawn from
reports emanating from Syria is that the government’s tactic of choice has been to
indiscriminately and relentlessly attack entire towns, villages and cities in an attempt to
terrorize opponents and thereby repress the uprising once and for all. See Laurie R. Blank and
Geoffrey S. Corn, ‘Losing the Forest for the Trees: Syria, Law, and the Pragmatics of
Conflict Recognition.’ Vol 46 May 2013 No.3 Vanderbilt Journal of Transnational Law.
Available at www.vanderbilt.edu/jotl/.../wp.../Corn-FINAL.pdf> (accessed on 19 March
2014)

24
seeking asylum and hence those not yet within the territories of the countries they are
seeking asylum also fall within the ambit of the principle. This implies an obligation
upon the host state to take care of the concerns of the person seeking asylum or
refugee status. Article 3152 prohibits the imposition of penalties on refugees who
enter a country illegally coming from a territory where their life or freedom was
threatened in the sense of Article 153, provided they present themselves without delay
to the authorities and show good cause for their illegal entry or presence. This
provision too implies that the principle of non-refoulment still applies to persons who
enter a country illegally coming from a territory where their life or freedom was
threatened as stipulated and their application for refugee status or grant of asylum is
rejected. This position has indeed been reaffirmed by courts for example in the
Uxbridge case54 where the Divisional court in the United Kingdom stated, “Article 31
extends not merely to those ultimately accorded refugee status but also to those
claiming asylum in good faith (presumptive refugees) is not in doubt. Nor is it
disputed that article 31’s protection can apply equally to those using false documents
as to those who enter a country clandestinely.”
From this, it is clear that Kenya is under an obligation not to expel any refugees or
persons who are in the country illegally to territories where they risk facing
persecution. Kenya is obligated to ensure and accord such persons temporary
52
ibid 2.
53
Ibid.
54
R v Uxbridge Magistrates’ Court and Another ex parte Adimi 1999 IMM AR 560.

25
protection and asylum.55 Kenya is therefore under an obligation not to refoul Somali
refugees currently in the country. Does this imply that the grant of asylum by Kenya
to Somali refugees is mandatory? Is the principle mandating the grant of asylum be it
temporary or permanent? Yes it is. I do concur with Baxewanos when he affirms that
the extraterritorial application of the principle of non-refoulment stands largely
undisputed today.56
2.5 To what extent is the principle rigid?
The rigidity of the principle firstly manifests itself under Article 42(1) 57 which
prohibits any reservations from being made with regard to Article 33 of the 1951
Convention. The prohibition outlines the strict nature of the principle which creates
an obligation that cannot be deviated from. Robinson notes that Article 42 divides the
convention into such parts to which reservations by states are permissible and such
which have to be accepted as they stand or no adherence to the Convention may take
place at all and that this is the result of the provisions are so fundamental that, if they
are not accepted by a state, the Convention could not fulfill its purpose.58 Robinson’s
sentiments allude to the strictness implied by article 42 (1). Article 33 was designed
to protect refugees from being returned either to their country of origin or to other
countries in which they would be at risks of persecution and as such it is the
cornerstone of the refugee convention and establishes the most important obligation
55
Article 31 (2) 1951 convention obligates contracting states to allow refugees illegally in the
country a reasonable period and all the necessary facilities to obtain admission into another
country.
56
ibid 29 pg 11.
57
ibid 2.
58
Phil C.W Chan ‘The Protection of Refugees and Internally Displaced Persons: Non-
refoulment under Customary International Law?’ (2006) 3 International journal of Human
Rights, Pg 233.

26
of states in respect of refugees.59 The main protection here is from persecution. This
position has been reaffirmed by courts for example in Chan v Minister for
Immigration and Ethnic Affairs (MIEA)60 the High Court identified both subjective
and objective elements in the Convention definition. It stated that, the subjective
element requires the person to have an actual fear of persecution to be well-founded
for reasons listed in the definition of a refugee and the objective element on the other
hand requires that subjective fear to be well-founded. On the question of what
constitutes a well-founded fear, the court said that it is not necessary for there to be
50% or greater chance of persecution to be more probable than not. The High Court
said the definition would be satisfied provided there is a real chance of persecution.
The rigidity also manifests itself under Article 33 (2) which requires that it must be
established that the refugee constitutes a danger to the security or to the community
of the country of refuge. Where the exception does operate, its application must be
subject to strict compliance with principles of due process of law. 61 Does mere
suspicion or assumption that a person is a security threat amount to a reasonable
ground for regarding such persons as a danger? Bruin and Kees believe that the
threshold indicated by the text of Article 33 (2) needs to be applied. Therefore there
needs to be a danger to the security of the country of refuge or its international
relations. The danger needs to be proven and cannot be based on assumptions.62 How
do we establish that a refugee constitutes a danger to the security or to the community
59
ibid 23 pg 3.
60
Chan v Minister for Immigration and Ethnic Affairs (MIEA)199 169 CLR 379 also
available at <www.ags.gov.au/publications/legal-briefing/br42.htm> (accessed on 31 January
2014)
61
ibid 23 pg 63 [179]
62
ibid 37 pg 18.

27
of the country of refuge in instances of mass influxes? The nature of mass influxes is
complex in that it is difficult to examine each individual case as such large groups are
hard to handle. Hathaway posits that it is not usually practical for a country
overwhelmed by a mass influx of refugees to engage in this kind of detailed case-by-
case analysis of risks to its own well-being.63 The mass influx of refugees from
Somalia poses a great challenge and any rejection at our frontiers would amount to a
violation of the principle. Leuterpacht and Bethlehem pose that a denial of protection
in the absence of a review of individual circumstances would be inconsistent with the
prohibition of refoulment.64 The burden upon Kenya is to evaluate each individual
case in order to justify derogation from the principle. The rigidity of the principle
makes it mandatory for every state to evaluate every individual case even in instances
of mass influxes. Catherine65correctly states that the question of individual eligibility
for protection becomes largely theoretical and of little relevance when a great mass of
people cross a frontier. The rigidness comes about due to the requirement of
assessment of every individual even in instances of mass influxes.
The rigidity of article 33 also comes about with regard to the requirement that a
person who has been denied asylum shall not be refouled to a territory where he/she
risks facing persecution. This principle obligates states to grant temporary asylum to
such persons as they are to allow such persons a reasonable period and all necessary
facilities to obtain admission into another country.66 Article 267 prohibits rejection at
63
ibid 31 pg 357.
64
ibid 23 pg 39 [10]
65
Catherine Muskali, Thesis, Domestic Implementation of International Refugee Law: The
Kenyan Case. 2003.
66
ibid 2 art 31 (2)

28
frontiers. It provides that no person shall be subjected by a member state to measures
such as rejection at the frontier, return or expulsion, which would compel him/her to
return to or remain in a territory where his/her life, physical integrity or liberty would
be threatened for reasons set out in Article 1 paragraph 1 and 2.68 Leuterpacht and
Bethlehem write that where states are not prepared to grant asylum to persons who
have a well founded fear of persecution, they must adopt a course that does not
amount to refoulment. This may involve removal to a safe third country or some
other solution such as temporary protection or refuge.69
A further manifestation of the rigidness of the principle is found in Article 2 of the
OAU Convention which prohibits acts of refoulment and it does not provide for any
exceptions. What should a state party do under circumstances where a person poses a
security threat to the state? The OAU Convention is silent on this and this implies a
qualification of the absolute nature of the principle.
The rigidity of the principle should not be looked at only in one side. Hathaway states
that suspension of protection from refoulment must be carried out in a way that is
minimally invasive of the human dignity of refugees.70 Hazel71 and Ozil admit that
indeed it is rigid in a good way.72 I do concur for I believe the rigidity is aimed at
guaranteeing refugee protection. In Ozil’s words ‘it guarantees non-derogability
67
ibid 3.
68
Ibid .
69
ibid 23 pg 33.
70
ibid 31 pg 360.
71
She adds that taking away non-refoulment is taking the human dignity more so for mothers
and children. She looks at it strictly from a humanitarian perspective. Interview with Hazel, a
country director for a Refugee Organization in Kenya. 1 April 2014 in Nairobi.
72
Interview with Ozil, the Assistant Programme officer, Information and Research at a
Refugee Organization in Kenya. (10 February 2014)

29
from fundamental human rights and their protection i.e. the right to life and
protection from persecution.’
2.6 What are some of the burdens the principle has placed upon kenya?
The rigidity of the principle as stipulated above mandates Kenya to take
responsibility over Somali refugees and asylum seekers who have fled from Somali
and are at our frontiers. This does not only apply to Somali refugees but to all other
persons seeking asylum and to those refugees who have entered the country illegally.
The principle further bestows the burden of granting temporary asylum to such
persons in order to enable them get asylum in other countries. The government is
thereby under an obligation to allow them a reasonable period and all necessary
facilities to obtain admission into other countries. What duration constitutes
reasonable period? What facilities should the government offer to such persons to
facilitate their safe entry to other countries? Which country will be more willing to
accept such persons within its territories? Such responsibilities placed upon Kenya
means that Kenya will have to channel more of its resources for instance;
construction of more structures to act as waiting points for persons within the country
awaiting the grant of asylum, employment of more personnel to deal with the large
numbers of people fleeing from their countries, purchase of more equipments to
facilitate and enable persons who have been denied asylum to apply and get asylum
in any other countries. All this comes at a cost and it therefore means that Kenya has
to incur a financial burden.
In general it is quite evident that the rigidity of the principle of non-refoulment has
created responsibilities and liabilities upon Kenya. The responsibility here is to grant

30
asylum even if it is temporary and the liability is that Kenya will be held liable in
instances where it violates the principle as enshrined under both international law and
refugee law. Such a burden indeed was contemplated during the drafting of the 1951
convention relating to the status of refugees and it is evident in the preamble.73 If
Kenya violates article 33, it will be in breach of its international obligation.
Despite the burdens enumerated above, the principle to a large extent has ensured that
refugees and asylum seekers have been protected in Kenya. Hosting and granting
asylum over a long period of time by Kenya manifests the respect that we have for
the principle. Hosting the largest refugee camp in the world indeed is a humane act.
Over the years, a number of resettlements have been conducted which guaranteed the
safe return of refugees.
Conclusion.
The principle guaranteeing the protection of refugees and persons seeking asylum has
played a big role in refugee protection. The rigidity has placed huge burdens upon
states as alluded above and it has led to states devising various methods of going
round the principle or even out rightly violating it. I concur with Bix when he says
that the life of the law has not been logic, it has been experience.74 What is the way
forward for Kenya? The customary status of the principle of non-refoulment remains
unquestionable. Non-refoulment is the cornerstone of international refugee law,
underpinning the obligation assumed by the international community to ensure the
73
The preamble stipulates ‘the grant of asylum may place unduly heavy burden on certain
countries and that a satisfactory solution of a problem of which the United Nations has
recognized the international scope and nature cannot therefore be achieved without co-
operation.’
74
ibid 17.

31
protection of people fleeing their country because of persecution or other forms of
human rights deprivation from which their governments cannot or will not protect
them.75 From this, I do believe Kenya is under an obligation to respect and uphold the
principle of non-refoulment.
75
ibid 25 pg 2

32
3.0 CHAPTER THREE
3.1 Refugee protection vis-à-vis state security
3.2 Introduction
The refugee definition and international protection now operate within multifaceted
efforts to maintain peace and security.76 Having examined the rigidity of the principle
in the subsequent chapter, this chapter seeks to highlight on some of the impacts that
the principle has had on the security of the country. Granting asylum to large number
of people especially in instances of mass influxes comes with various challenges.
Security challenges will be the main concern of this chapter. Should Kenya violate
the principle in attempting to protect its nationals? Is it right for me to jump to the
conclusion that the principle undermines state security? Such are the questions that I
will seek to address. I will also analyze various state practices in relation to the
principle of non-refoulment and state security.
3.3 Refugee protection and the national security of a receiving state.
The question of refugees and the security of the receiving state cannot be ignored.
The issue of refugees and the receiving state security has been largely identified in
the Conventions for example; in the 1951 Convention relating to the status of
refugees, article 1F77, 33(2)78 and 3279 among others and also under Article 1 (5)80
76
ibid 6 pg 34
77
It provides that the provisions of this Convention shall not apply to any person with
respect to whom there are serious reasons for considering that: he has committed a crime
against humanity, or has been guilty of acts contrary to the purposes and principles of the
United Nation.
78
It provides that the benefits of the present provision may not, however be claimed by a
refugee whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.

33
and 2(6)81 of the OAU 1969 Convention. For security reasons, states have the power
to deny asylum or to expel such elements who may pose as a threat. There is a lot of
scholarly opinion on the question of refugees and state security for example: Pirkko
posits that refugee movements themselves are increasingly seen as posing a threat to
national, regional or international peace and security.82 A fact I agree with. Juan83
Dina84 and Robyn85 share almost a similar sentiment. From the above, I am inclined
to say that one cannot turn a blind eye to the question of refugees and the receiving
states’ security.
79
Provides that the contracting states shall not expel a refugee lawfully in their territories
save on grounds of national security or public order.
80
Affirms article 1F. See ibid 3.
81
It provides that, for security reasons, countries of asylum shall as far as possible, settle
refugees at a reasonable distance from the frontier of their country of origin.
82
He further admits that the refugee hosting countries may be inclined to deal with the
refugee problem essentially in security-rather than humanitarian-terms. See ibid 6.
83
States that it is necessary to ensure that the legitimate security interests of states are
consistent with their international human rights obligations and that immigration controls do
not indiscriminately affect those refugees in need of international protection. He further adds
that security plays a role in the search for lasting solutions for refugees. He argues that
security considerations may affect the exercise of fundamental rights of refugees, such as the
search for lasting solutions to their problems. See Juan Carlos Murillo,’ The Legitimate
Security Interests of the State and International Refugee Protection.’ Sur journal. Available
at <www.surjournal.org/eng/conteudos/getArtigolo.php?artigo=10,artigo_murillo.htm>
(accessed on 27 March 2014)
84
Notes that, despite states compliance to the rule of non-refoulment, at the same time, many
states do act against the principle and justify the breach and violation by citing security
reasons among others. She adds that in mass influx situations, states deliberately close their
borders to asylum-seekers. Security and economic shortages are two most widespread
explanations for their negative actions. See Dina Imam Supaal, ‘Escaping the Principle of
Non-refoulment’ Vol. 2, Issue 3 (June) International Journal of Business, Economics and
Law. Available at <www.klibel.com/.../KLL234-DINA-IMAM-SUPAAT> (accessed on 31
March 2014)
85
Posits that population movement and in particular refugees have emerged as core concerns
of the new global security agenda. She adds that the refugee problem represents a danger to
the national security of receiving state. See Robyn Lui, ‘World Order and UNHCR’s
“Comprehensive” Approach to Refugees. Borderlands e-journal. Available at
<www.rs.sqdi.org/volumes/14.1_-_lui.pdf> (accessed on 31 March 2014)

34
3.4 How does the principle undermine state security?
The rigidity of the principle undermines state security in a number of ways. Firstly,
under Article 42(1) of the 1951 Refugee Convention, a party cannot make any
reservations even on security grounds. The Article prohibits the making of any
reservations with regard to Article 33. This undermines states’ security in that no
matter the security situation of the receiving state, one cannot make any reservations
with regard to the principle.
Secondly, looking at the OAU Convention, Article 2 prohibits acts of refoulment and
does not provide for any exceptions even on security grounds. This undermines the
receiving state’s security in that it cannot dare refoul any refugees no matter the
situation.
Thirdly, the exception under article 33(2) requires an assessment of each individual
case. This poses a challenge in instances of mass influxes. How do we analyze each
individual case in such instances? Handling mass influxes is strenuous. Ellen alludes
to this.86 It is hard especially for a developing country like Kenya. The Convention is
silent when it comes to such. It only provides for the protection of all refugees in
general. This may be seen as posing a massive security challenge to the receiving
state. Ellen notes that if asylum-seekers are still engaged in hostilities in their country
of origin, the receiving country may face domestic and international security
86
She admits that mass movements of refugees, also accompany practical concerns for states,
including consumption of resources, national security problems, and issues surrounding
domestic infrastructure. She adds that refugees from countries engaged in internal combat can
often raise security concerns for states. She further notes that mass movements may strain
international relationships between states, especially if one state becomes increasingly
burdened by mass migrations. See Ellen F. D’Angelo. ‘Non-refoulment: The Search for a
Consistent Interpretation of Article 33.’ Vol. 42:279. Vanderbilt Journal of Transnational
Law. Available at <www.vanderbilt.edu.com> (accessed on 31 March 2014)

35
concerns.87 33(2) undermine the receiving state’s security by obligating it to grant
asylum to such masses with an exception of refoulment only being allowed after
evaluation of each individual case.
3.5 What are some of the impacts of the principle of on the national security of
Kenya?
The mass influx of refugees into Kenya coupled with the principle has brought
with it various security challenges. The mass influx of Somali refugees has negatively
impacted on the security of Kenya. Crisp88 opines that security has been a central
concern of Kenyan refugee policy since the colonial period. He comments on a
UNHCR report of 1998 October which highlighted on the deteriorating security
situation at the camp ’….Despite additional live fencing being installed, banditry89
attacks within the camps (including looting, shooting) have become almost daily
occurrences. The problem of banditry in Dadaab is regularly manifested in the form
of armed robbery. Indeed, the scale of this phenomenon is such that all vehicles in the
area are obliged to travel in organized convoys, led and followed by armed police
87
Ibid pg 36.
88
ibid 35.See also an RCK Monitoring Mission Garissa and Dadaab 19th
-22nd
September
2011 Report which reveals that, insecurity in the camps is due to influx of refugees/asylum
seekers, it. Available at<http://www.rckkenya.org/rocdownloads/Resources/Reports/dadaab-
monitoring-mission-report.pdf> (accessed 19 April 2014)
See also Medecins Sans Frontieres, ‘Dadaab Refugees: An Uncertain Tomorrow’ which
states that the current security status of the camp has deteriorated and that refugees are
always at risk of violence, and the Aid Organizations that assist them are forced to operate
with a skeleton staff. It further posits that killings, abduction and rapes remain the major
concern for refugees and the Organizations that assist them and that the security environment
for refugees remains extremely unstable. Available at
<http://www.msf.org/sites/msf.org/files/bp-dadaab-march-2014-low.pdf> (accessed 20 April
2014)
89
Somalia Republic severed its diplomatic ties with Britain in the 1950s and mounted an
insurrection in Northeast Kenya which became known as the ‘shifta war’ shiftas were and
still are defined as bandits. Bandit activity is related to the systematic economic
marginalization of the ethnic Somalis living in this region of Kenya. See Ibid.

36
escorts.90 The principle targets include refugees, aid agency facilities and installations
including warehouses, schools and pumping stations, vehicles travelling in the region,
especially without the requisite police escort.91
The mass influx of refugees has led to cross boarder leakages which have resulted
into the illegal entry of asylum seekers and various ammunitions finding their way
into the country.92 James notes this too.93 Crisp highlights on the porosity of the
Kenyan border and dismisses the fact that the thorn bush fences placed in Dadaab are
impenetrable. He admits that in practice, they are not. He further adds that; while this
has certainly helped to curtail the level of violence in the immediate vicinity of the
camps, it has also prompted the bandits and criminals to operate along the roads and
in outlaying areas.’94 The Al-shabaab insurgency has repeatedly ‘leaked’ into the
camp. Bulletins that Al-shabaab sympathizers are among the new arrivals of refugees
are not uncommon among those refugees who live in the camps. 95 A number of
90
Ibid pg 9.
91
Ibid pg 10.
92
The Director of Refugee Affairs Dadaab Camp Manager Mr. H C Komen in a meeting with
RCK officials admitted this. The same sentiments were echoed by Victoria Mutuku a Deputy
Officer Commanding Station at Dadaab,in a separate meeting with the RCK officials. See
ibid 88.(RCK Monitoring Report)
93
He states that many refugees come from situations of civil war and bring their weapons
with them. These are then used by some for crimes, which include armed robbery and
poaching. He adds that a lack of international or interregional support and the added problem
of armed combatants mixing with civilian refugee populations have led to states resisting
granting asylum to refugees. See James Schneider, ‘The Refugee Crisis in Southern and
Central Africa’ Journal of humanitarian assistance. Available at
<http://sites.tufts.edu/jha/archives/142.html> (accessed 4 March 2014)
94
ibid 35 pg 32. See ibid 88 (RCK report) where one Garissa Officer Commanding Police
Division SSP Felix Munyambu admitted that insecurity along the Garissa-Dadaab route could
be attributed to the presence of refugees.
95
ibid 36 pg 4. Hazel also admits that the refugees have links with the Al-shabaab. Family
ties and the clan hood system in Somalia confirm the links. She adds that refugees are at
times desperate and the camp conditions force them to work with the Al-shabaab who in turn
gives them consideration in form of money or food. She admits that moving around the camp
and areas within the camp without any security personnel is risky. ibid 71(interview)

37
attacks have been witnessed in the recent past especially in the North-Eastern part
and other places in Kenya for example; the Al-shabaab militants attacked a rural
border patrol unit of administration police near Elwaq in Mandera district, 96 two
grenades were hurled at the East African Pentecostal Church in Garrisa town killing
two including an 8-year-old girl. Five others were seriously injured,97 various grenade
attacks at bus terminals for example; OTC bus terminal where one person was killed
and 18 others were seriously injured, 98 all this attacks are attributable to the Al-
shabaab who have claimed responsibility. The question then that arises is how the
grenades do and shotguns find their way into the country? I tend to believe all this is
as a result of the mass influx and the cross boarder leakage. The Al-shabaab are
taking advantage of the porosity of our borders and using the mass movements to
gain entry into the country. This in turn taints the image of refugees negatively.
3.6 How are all these security impacts linked to the refugees?
The principle, as I have discussed, mandates states to grant asylum to every person
and obligates states not to expel or return refugees or asylum seekers to territories
where they risk facing persecution. Kenya has for a long time provided asylum to
refugees. The Al-shabaab has carried out retaliatory attacks upon the Kenyan people
because of the invasion of Somalia by Kenyan forces. The Al-shabaab is an Islamic
96
Available at <www.standardmedia.co.ke/m/story.php?id=2000094160&pageNo=2>
97
This was on 5 November 2011. Available at <www.bbc.co.uk/news/world-africa-
15612162> (accessed on 31 March 2014)
98
This was on 24 October 2011. Available at
<www.allafrica.com/view/group/main/id/00014362.html> (accessed on 31 March 2014) See
also Cyrus who reported on 6 March that a Somali refugee identified as Ibrahim Aden
Ibrahim, who was supposed to be in Dadaab refugee camp was found with bomb-making
materials and Al-shabaab training materials in a rental house where he resided. In Cyrus
Ombati, ‘Police Recover Bomb-making Materials at a House in Eastleigh Nairobi.’ Available
at <www.standardmedia.co.ke/thecounties/article/2000108750> (accessed on 7 March 2014)

38
group and most of its members are of Arabic decent. Most refugees at camp are of
Somali origin and they undoubtedly have ties in Somali. The porosity of the Kenya
Somali border has made the group to take advantage of the situation and use this
borders as gateways into Kenya. Due to the mass influxes of refugees, it has been
hard to distinguish between genuine refugees and Al-shabaab sympathizers
masquerading as refugees. Circumstantial evidence furthermore points to the refugees
as being used as agents by the Al-shabaab especially in instances of mass influxes.
The acts of the Al-shabaab have undoubtedly led to the stereotyping and labeling of
any person of Arabic decent as a terrorist.99 Would the current security situation in
the areas near the camp be the same if we were not hosting refugees? I am not
dismissing the fact that without the camps there would be no conflict in the North-
Eastern region. Indeed there would but it would not have been of the same magnitude
as that being experienced now. Kimaiyo reluctantly admits that the entry of arms into
the country illegally is attributed to corrupt border officials.100 Ozil also agrees with
Kimaiyo’s view that the border officials are to blame, he further adds that the cross
border leakage is attributed to inadequate border policing, poor screening and
99
Ben states that refugees have become doubly victimized- persecuted at home and
marginalized abroad. The use of force against states suspected of harboring terrorists has
generated new refugee outflows at the same time the protection possibilities are diminishing.
He further adds that there is little evidence that international refugee law has been misused by
suspected terrorists to gain admission to other states or as a means of safe heaven. He also
points out that terrorists are far more likely to pursue illegal migration channels to infiltrate a
state than to use asylum procedures. See Ben Saul, ‘Protecting Refugees in the Global “War
on Terror” ’ Available at <www.sydney.edu.au/law/scil/.../SCILWP3_Final.pdf> (accessed
on 31 March 2014) I however partly disagree with him when he says that there is little
evidence that refugee law has been misused by suspected terrorists to gain admission to other
states. He turns a blind eye to instances of mass influxes and cases where states have denied
asylum to refugees on security grounds.
100
Kimaiyo, the Inspector General of the police said this while being interviewed by Larry
and Victoria (NTV journalists) after the Westgate Mall attack. Interview footage available at
<www.youtube.com/watch?V=af9_kjtZTxc> (accessed on 13 February 2014)

39
monitoring and complacency by border authorities101 I tend to believe that in as much
as the blame is put on border officials, we should not turn a blind eye to the
challenges of handling mass influxes which strains the whole process. All in all it is
not justifiable to blame the security implications on refugees with regard to terror
attacks. On a number of occasions, the terror attacks have been perpetrated by non-
refugees furthermore; Alfred and Iteere admit that Kenyans from other tribes not of
Somali origin have gone to Somali to receive Alshabaab training.102
Duale asserts that the attacks often draw negative stereotypes and associations
against the Somali community, yet it is not written on anyone’s forehead that they are
members (of the group). To target the Somali community is profiling and
xenophobia103
3.7 How have other states acted with regard to such mass influxes of refugees in
their attempt to safeguard the security of their citizens?
States have handled the refugee problem differently more so due to their capacities.
The practice is different especially looking at developed and developing countries.
States have interpreted the principle of non-refoulment differently mostly in terms
favorable to it. Security concerns have been given priority by countries. I concur with
Kourala when he posits that international protection is increasingly dictated by
security considerations as is illustrated in situations where international, regional or
101
ibid 72.(interview)
102
Alfred Mutua the then government spokesman and Mathew Iteere the then police
commissioner admitted this during a joint press briefing with regard to the Westgate Mall
attack. Footage available at <www.youtube.com/watch?V=A6UOGe6gI8U > (accessed on 13
February 2014)
103
Adan Duale, Member of Parliament of Garrisa, during an interview with Sabahi. Available
at <www.Sabahionline.com/en-GB/articles/hoa/articles/features/2012/12/28/feature-01>

40
national security of asylum-seekers or prima facie refugees collides. 104 UNHCR
admits that in recent years, the elevated security concerns of states have increasingly
led to practices that ignore international human rights standards.105
Article 3(2) of the Declaration on Territorial Asylum106provides that the exception of
non-refoulment may be made only for overriding reasons of national security or in
order to safeguard the population, as in the case of mass influx of persons. Think
Security Africa notes that a sustained border closure is the mildest manifestation of
tension between states. It further adds that the most common reason for such closures
is to prevent instability spreading across borders.107 Pavini gives an example of Sudan
refugees who had fled to Israel where they were arrested for illegal entry, locked up
104
ibid 6 pg 277-278.
105
UNHCR, ‘Looking to the Future.’ Available at <www.unhcr.org/4444af...> (accessed 4
March 2014) pg 13.
106
UN General Assembly, Declaration on Territorial Asylum, 14 December 1967,
A/RES2312(XXII)
107
The article further cites examples such as; Sudan closing its border with Libya in 2010 to
prevent rebels crossing back into Sudanese territory, Tunisian authorities closing their
borders to prevent Libyan nationals from entering their territories and Nigeria closing its
borders with Niger, Cameroon and Chad since the escalation of violence in the North, in an
attempt to prevent extremists from continually moving across borders. In Think Security
Africa, ‘Border Security in Africa’ 1st
edition 2012. Available at
<http://www.thinksecurityafrica.org/wordpress/wp-content/uploads/Border-security-in-
Africa.pdf> (accessed 20 April 2014)
See also Vanguard news which reported that Nigeria sealed a portion of its Northeastern
border with Cameroon to block the movement of insurgents and other criminal groups. The
closure was imposed on Adamawa a state in the northeast which was placed under
emergency rule in May 2013 following waves of attacks by Boko Haram Islamists. In
Vanguard news, ’Boko Haram: Nigeria Seals border with Cameroon’ Available at.
<http://www.vanguardngr.com/2014/02/boko-haram-nigeria-seals-border-cameroon/>
(accessed 20 April 2014)
See also a report by ACAPS (Assesment Capacities Projects) which noted that the ongoing
attacks by Boko Haram Islamist insurgents continue to constrain access to the northeast of
the country and triggered further population displacement. The report further states that
Nigeria closed its borders with Cameroon’s far north Region due to concerns about cross-
border insurgent movement and the flow of weapons into the area. In ACAPS (Assessment
Capacities Projects), ‘Global Emergency Overview Snapshot, 18-25 February.’ Available at
<https://www.reliefweb.int/sites/reliefweb.int/files/resources/Global%20Emergency%20Over
view%20Snapshot%2018%20-%2025%20February.pdf> (accessed on 20 April 2014)

41
in Israeli jails between one to four years with nothing other than routine tribunal
hearing. I tend to agree with him when he asserts that such acts serve to highlight
how perceptions of state security have overshadowed the ideals of the Geneva
Convention, an obstacle that the existing framework of the convention seems to
provide no resistance to.108
Should states jeopardize the security rights of their citizen by according asylum
and protection to asylum seekers and refugees who come in mass influxes and impact
on the state’s security? Mushkat opines that governments have asserted a sovereign
right/duty to regulate and prevent the entry of illegal aliens and safeguard the nations’
security by what are technically permissible means. 109 What are this technically
permissible means? Have they been permitted by the international community? No. I
believe states are acting in a manner that suits their needs and so they believe their
actions are permissible. The European countries have exhibited a different kind of
practice despite the security threats posed. This is so as a result of Article 3 of the
108
ibid 38 pg 4. See also Dina who gives an example of a 1996 incident where two ships
carrying Liberian refugees attempted to disembark at a few ports in West Africa fleeing the
civil war. The ships were not allowed to remain at various docks but at some points were
permitted to get urgent supplies. One of the ships, Zolotitsa, was forced to return to Liberia
after no state volunteered to take in the refugees. In this occasion, states justified their
violation with suspicion of armed militias that could pose a threat to national security. ibid 84
pg 3.
See also. Olivia who gives an example of Tanzania, where he states that refugees are now
presented as threats to physical and economic security. He admits that some of the security
concerns are warranted. He goes on that there were certainly violent elements among the
refugee outflow from Rwanda, and Burundian refugees in Tanzania have reportedly
supported and participated in various rebel movements. Olivia Bueno, ‘Perspectives on
Refoulment in Africa’ Available at <www.refugee-
rights.org/.../papers/.../Refoulment.April2006.pdf> (accessed on 31 March 2014)
109
ibid 25

42
European Convention on Human Rights110 which prohibits the return of any person to
a country where they risk facing inhuman or degrading treatment or punishment. The
UK following the ECHR has not expelled any individuals who pose security risks to
it. For example, Chahal111an Indian national belonging to the Sikh population, who
had been suspected of having committed terrorist acts. He had asked for asylum in
the UK.
3.8 Conclusion
From the above, it is quite evident that states which are facing the refugee hosting
burden are out rightly violating the principle of non-refoulment due to unavoidable
circumstances and not out of their own volition. Should Kenya take such measures?
The principle does not take into account the security challenges posed by mass
influxes. At this point I am justified to draw the conclusion that indeed the principle
undermines state security. Kourula admits that security concerns affect the
application of the refugee definition and the type of protection granted to the forcibly
displaced.112 Juan notes that some countries now take the refugee’s manner of entry
into the country, nationality, ethnic origin, and region of origin into account when
determining refugee status. 113 Olivia adds that, the perception that refugees are
110
Council of Europe, European Convention for the Protection of Human Rights and
Fundamental Freedoms as amended by Protocols Nos 11 and 14, 4 November 1950, ETS 5.
111
Chahal v United Kingdom 15 November 1996, European Court of Human Rights, APPL
NO22414/93
112
He adds that, such concerns have become most apparent in the application of the exclusion
clauses of the 1951 Convention definition of a refugee to alleged terrorists and perpetrators of
gross violations of human rights as well as in the failed efforts to separate militia elements
from civilian refugees in refugee camps, most notably in the Great Lakes region of Africa.
See ibid 6.
113
He also notes that in some cases, refugees have been perceived as threats to the security of
states and even as potential terrorists based on their nationality, religion or country of origin.
He adds that indeed, an uninformed public opinion, or manipulation of information for

43
security threats has hardened public attitudes towards refugees114 a fact I agree with. I
do believe with international cooperation and assistance, we can address the
challenge posed by mass influxes. By strengthening our screening capacity at the
border points, we shall safeguard both the security of refugees and the Kenyan
nationals. With such, we will be able to strengthen our asylum protection system and
guarantee the security of everyone without having to lay blame on innocent refugees.
populist ends, can generate xenophobia and discrimination against refugees from a certain
nationality, a particular ethnicity or a specific religion. See ibid 83.
114
ibid108.

44
4.0 CHAPTER FOUR.
4.1 Recommendations.
4.2 Introduction.
Kenya is in a dilemma. It cannot forcefully repatriate the current refugees in the
country. Should we follow the emerging state practices whereby they have blatantly
violated the principle of non-refoulment in order to protect their own citizens? Their
security concerns have pushed them to such limits. The recent signing of a tripartite
agreement115 between the UNHCR, the government of Kenya and that of Somalia
brings some ray of hope. This chapter proceeds forth to provide recommendations
that the author believes if implemented will help in resolving the refugee problem.
The last part of this chapter will be a conclusion of the whole paper.
There is little doubt that in a world exhibiting ‘compassion fatigue’ and hardening
attitudes towards asylum seekers, repatriation is a ‘favored solution’ for refugees as
suggested by the US state Department Representative to the Geneva Conference- in
an attempt to explain the American change in policy to force people back to Vietnam
after they were screened out- there has been a progression in world policy on dealing
with asylum seekers. 116 Kenya’s dilemma necessitates a need for a permanent
solution to the current refugee crisis. I cannot turn a blind eye to the fact that efforts
have been made in the past. The question of refugees becomes hard to settle due to
115
The agreement was signed by Kenya’s foreign affairs secretary Amina Mohamed,
Somali’s deputy premier and the United Nations High Commissioner for refugees. The
deputy president William Ruto who witnessed the signing said the pact provides for the
establishment of a repatriation commission which will be charged with undertaking a
harmonized regulatory framework for the voluntary repatriation of the refugees to Somalia.
Available at <www.capitalfm.co.ke/news/2013/11/Kenya-signs> (accessed on 24 January
2014)
116
ibid 25 pg 1.

45
the unpredictable and ever rising conditions that result to mass exoduses. With such
uncertainty and unpredictability, the best we can do is to try our level best to contain
the current situation.117 Kenya has shouldered the refugee burden since the inception
of the Dadaab refugee camp. 118 I do believe, with the help of the international
community we will be able to contain the current situation. How can we resolve the
refugee crisis and at the same time protect and uphold refugee rights and the right to
security of the people of Kenya?
4.3 What is the way forward?
I do agree with Thorburn when he opines that according to the 1951 Convention,
those recognized as refugees take on the duties of regular citizens. It could also be
envisaged that states offering protection would expect a further duty from those
granted temporary protection. As this is offered for a limited period of time, there is
an expectation that those protected would honor their duty to return to their country
of origin once the situation is sufficiently safe for them to do so.119 The setting up of
camps is a temporary solution for the protection of refugees. Some states have stated
this on a number of occasions for example, Pakistan which has always insisted that:
“the many Afghan refugees living on its territory have been granted only temporary
asylum, and will be expected to go home once conditions have improved in their
117
Ellen opines that because it is unlikely that situations leading to the creation of asylum-
seekers will cease, a collective response to these situation provides a positive result for states
and refugees. see ibid 86.
118
ibid 9. Also see CARE which notes that Dadaab camps were constructed in the early
1990s as a result of the civil war in Somalia. They were originally built to hold only 90,000
people. In CARE, ‘Dadaab Refugee Camps, Kenya’ Available at
<https://www.care.org/emergencies/dadaab-refugee-camp-kenya> (accessed 19 April 2014)
119
ibid 5 pg 54.

46
homeland.”120 All in all, once conditions that forced the flight seize, it is expected
that the refugees will honor their obligation to return to their own country.
Firstly, I hereby recommend that we do repatriate the refugees to safe areas within
Somalia. The tripartite agreement for repatriation that was signed must be fully
implemented. In addition to the repatriation, I also recommend that we do close our
Somali border indefinitely so as to resolve the current refugee crisis. This should be
done pursuant to Article 25 (1) of the UN Draft Articles on Responsibility of States
for Internationally Wrongful Acts121which provides that a state may invoke necessity
as a ground of breaching an international obligation. In this case we will invoke
necessity on grounds of safeguarding security as an essential national interest.
In line with the repatriation, I also do recommend that we grant asylum outside
Kenyan territories so as to fulfill our international obligations. This approach has
been mainly used in Europe. Hyndman observes that donor states of the global North
that support the camps with food, medical and housing assistance also actively deter
asylum seekers from such camps from coming to their borders to make a refugee
claim in a place where more rights might be available. 122 Kenya should employ
methods such as
a) Pushing for the establishment of refugee camps within areas of origin.
120
B.S Chimni (ed), International Refugee Law: A Reader, (Sage Publications, New Delhi,
2000) pg 141.
121
Article 25 (1) stipulates that necessity may not be invoked by a state as a ground for
precluding the wrongfulness of an act not in conformity with an international obligation of
that state unless the act: Is the only way for the state to safeguard an essential interest of the
state or states towards which the obligation exists, or of the international community as a
whole. International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts 2001.
122
ibid 36 pg 6.

47
This method is known as the Reception in the region of origin (it was a Dutch
proposal first raised by the then Dutch Secretary of State for justice, Aad Kotso, in
November 1993 at the fifth Conference of European Ministers Responsible for
Migration Affairs in Athens. It has been widely applied in Europe for example;
Slovenia pressed for the creation of ‘safe areas’ within Bosnia Herzegovina as a
means of shifting the political and economic burden of the large numbers of displaced
Bosnians. This method is considered as a future means of combining the wishes to
permit people to remain as close to their homes as possible, to protect, and try not to
attract large numbers of immigrants to Western European countries.123 The UNHCR
should now endeavor to establish camps in areas of origin so as to confine the
refugees within their countries but at some reasonable distance from any conflict or
any events that led to their fleeing. Through the funds and resources, the UNHCR
should in turn facilitate the protection of such camps by mandating the UN to provide
its troops for securing such camps. This will be advantageous as it will relieve Kenya
the burden. In order to achieve this, Kenya should also push for the amendment of
article 2(6)124 of the 1969 OAU Refugee Convention so as to include a provision
allowing the setting up of refugee camps in their areas of origin.
Secondly, I do recommend that we propose for a change in the tactics of resolving the
conflict in Somalia. The proposition should be made to the African Union and to the
123
ibid 5 pg 111. See also Jennifer Hyndman, Managing Displacement: Refugees and the
Politics of Humanitarianism (University of Minnesota Press, Volume 16) she refers to it as
preventive protection. She asserts that it is a spatialized strategy of assisting displaced
persons within countries nearby. She adds that it is less a humanitarian practice than a donor-
sponsored effort to contain forced migration and to avoid international legal obligations to
would-be refugees.
124
Article 2(6) currently provides that, for reasons of security, countries of asylum shall, as
far as possible, settle refugees at a reasonable distance from the frontier of their country of
origin.

48
UN Security Council. Mushkat posits that the dislocation of large number of people
could not be handled by the traditional solutions of resettlement or temporary asylum
and called for something more effective- the acknowledgment of the root causes of
their problems and subsequent action by the international community.125 In this case,
the root cause of the mass influx is as a result of the instability and conflict in the war
torn Somalia land. The restoration of peace has taken way too long and there is still
no stability. I think the approach taken by the international community with regard to
the Somali situation is effective but it has long term implications. New methods of
resolving the conflict in Somalia should be employed in order to facilitate a speedy
resolution of the conflict. I hereby do recommend that new tactics be used in trying to
solve the war. Peaceful conflict resolution methods should be used and the
international community and the UN Security Council should order for a ceasefire
and seek for negotiations with the militia group. This will avert the war and its overall
impacts which have resulted to the killing of innocent civilians and subsequent
fleeing of survivors into neighboring states.
Thirdly, I do recommend for legal reforms. It is time for Kenya to take advantage of
article 45 of the 1951 Refugee Convention 126 Kenya should therefore make a
notification to the Secretary-General requesting for revisions with regard to the
following sections:
i) Article 42
125
ibid 25 pg 6.
126
ibid 2. Which provides that: Any contracting party may request revision of this
Convention at any time by a notification addressed to the Secretary-General of the United
Nations. The General Assembly of the United Nations shall recommend the steps if any, to be
taken in respect of such request.

49
An amendment of article 42 of the 1951 refugee Convention to allow for reservations
to be made on security grounds with regard to Article 33.127 States should be allowed
to make reservations on security grounds as a result of implications felt by mass
influxes.
ii) Article 33 (2)
Article 33 (2) should also be amended so as to do away with the requirement of
individual assessment in situations of mass influxes. This requirement places a huge
burden on host states as a result of the challenges posed by such mass influxes. The
above provisions should be amended so as to have a provision similar to that of
article 3(2) of the UN Declaration on Territorial asylum128which provides that the
exception of non-refoulment may be made only for overriding reasons of national
security or in order to safeguard the population, as in the case of mass influx of
persons.
Fourthly, I recommend that the issuing of green cards129 to citizens should be
diverted and priority should be given to refugees so as to ease the burden of the
127
Provides for the principle of non-refoulment.
128
ibid 106. See also Jean and McAdams who argue that incorporation of a derogation clause
in the convention would provide states facing mass influx situations with some vulnerable
‘breathing space’, as a prelude to full, albeit gradual, implementation of the Convention’s
standards. They further add that there needs to be a threshold that takes into account both the
refugee rights at stake and the fact that the state cannot genuinely fulfill its obligations. The
state will need to show that the influx makes compliance with the convention obligations
impossible and/or impairs the functioning of national institutions. In Jean-Francois Durieux
and Jane McAdams, ‘Non-refoulment through Time: the Case for a Derogation Clause to the
Refugee Convention in Mass Influx Emergencies’ Vol 16 Issue 1,International Journal of
Refugee law. available at <https://ijrl.oxfordjournals.org/content/16/1/4abstract> (accessed 4
March 2014)
129
Every year, the United States Government makes available 50,000 diversity visas (DV) or
green cards through the Diversity Immigration Visa Program, also known as the Green Card
Lottery. These green cards are randomly given to people that apply by a computer generated

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