At the Borders between Divided Somalia and Terrorist Kenya - HRW Report on Abused Somali Refugees
Dr. Muhammad Shamsaddin Megalommatis
June 24, 2010
Similarly with Abyssinia (fake Ethiopia), Kenya must be broken to several pieces - countries so that the therein imprisoned and terrorized nations, once liberated and organized as democratic societies, serve as perfect break waves against the rise of the East African Islamic extremism tsunami.
The leading international NGO Human Rights Watch published a few days ago comprehensive Report on the subject, titled "Welcome to Kenya – Police Abuse of Somali Refugees".
In two earlier articles titled "Kenya. A Colonial Regime Specialized in the Criminal Mistreatment of Somali Refugees. HRW Report "
(http://www.americanchronicle.com/articles/view/164925) and "Kenya. Somali Refugees Persecuted by the Freemasonic Regime Kibaki. HRW Report"
(http://www.americanchronicle.com/articles/view/164931), I republished the related HRW Press Release and several parts of the Report, namely, the Table of Contents, the Summary, the Key Recommendations, the Methodology, and the Report´s first chapter, under title "Border and Refugee Transit Center Closures: A Recipe for Police Abuses".
In the present article, I republish the second chapter of the Report´s main part, which concerns "Police Abuses against Asylum Seekers near the Dadaab Refugee Camps"; I also add the Table of Contents, as a point of reference. In forthcoming articles, I will complete the republication of the Report,
"Welcome to Kenya" Police Abuse of Somali Refugees - Contents
http://www.hrw.org/en/node/90848/section/1
Maps
Summary
Key Recommendations
Methodology
I. Border and Refugee Transit Center Closures: A Recipe for Police Abuses
Border Closure
Closure of the Liboi Refugee Transit Center
Possible Opening of a New Refugee Screening Center in Liboi
II. Police Abuses against Asylum Seekers near the Dadaab Refugee Camps
Extortion and Violence in the Border Areas
Police Extortion in the Border Areas near Liboi
Police Violence in the Border Areas near Liboi
Unlawful Arrest and Detention of Asylum Seekers and Abusive and Inhumane Conditions of Detention
The Liboi Police Station
The Dadaab Police Station
The Garissa Police Station and Magistrates´ Court
Standards Governing the Detention of Asylum Seekers
Refoulement of Hundreds of Somali Asylum Seekers in Early 2010
Prohibition of Refoulement
III. Abuse of Asylum Seekers by Criminals in the Border Areas
IV. Police Violence against Refugees in the Dadaab Refugee Camps
Police Violence and Degrading Treatment in Public and in Refugees´ Homes
Police Violence in Ifo Camp Police Station
V. Police Failures to Respond to Sexual Violence in the Dadaab Refugee Camps
Noted Patterns of Sexual Violence & Consequences for Survivors
Violence against Women without Male Relatives and Minority Women
Assault of Girls and the Use of Drugs
Cycles of Violence Affecting Women Who Exchange Sex as a Means of Subsistence
Physical Consequences of Rape Related to Female Genital Mutilation (FGM)
Stigma, Abandonment, and Violence Following Rape
Failures to Investigate and Prosecute Sexual Violence
Investigations Bought and Sold
Collection of Forensic Evidence
Arrest and Release
Consequences of Police Inaction
Police Capacity to Respond to Sexual Violence
Police Capacity to Prevent Sexual Violence
VI. Unlawful Restriction on Refugees´ Free Movement and Abusive Imprisonment of Refugees Convicted of Moving without Permission
Kenya´s De Facto Encampment Policy
Keeping Refugees in "Designated Areas"
Special Permission to Move with "Movement Passes"
Security Agencies Taking Over: The "Security Vetting Committee"
Arrest of Refugees with Valid Movement Passes and Intercepting Ambulances
Imprisoning Refugees without Movement Passes and Abuses in Garissa Prison
Legal Principles
VII. UNHCR´s Role in Monitoring Violations of the Rights of Asylum Seekers and Refugees
VIII. Comprehensive Recommendations
To the Government of Kenya
To the United Nations High Commissioner for Refugees
To the African Commission on Human and Peoples´ Rights Special Rapporteur
on Refugees, Asylum Seekers, IDPs, and Migrants in Africa
To Donor and Resettlement Governments Providing Support to UNHCR and to
Kenya
IX. Acknowledgments
II. Police Abuses against Asylum Seekers near the Dadaab Refugee Camps
http://www.hrw.org/en/node/90848/section/7
"The border closure is one big money-making machine."
—International NGO staffer, Nairobi, March 3, 2010.
"The Kenyan police call Somalis ´mbuzi´ – goats – because goats are valuable."
—Person working with Somalis in Garissa, March 13, 2010.
The border and transit center closure has created the opportunity for Kenyan police operating in the border areas near Dadaab to intercept and extort money from newly arriving asylum seekers and to unlawfully arrest, detain, abuse—and in some cases deport—those who do not pay. Many police officers have willingly and systematically seized the opportunity. Some rape asylum seekers as they cross into Kenya and large numbers of Somalis face unlawful arrest and days and even weeks of arbitrary detention in inhuman and degrading conditions in the Liboi, Dadaab, and Garissa police stations.
Following Human Rights Watch´s reporting on similar abuses taking place in 2008, UNHCR raised the apparent increase in abuses with the Kenyan authorities "at the highest level" in January 2009.[50] The findings set out in this report suggest that the authorities have taken no action to end the abuses.
Under the Kenyan Constitution, which reflects key provisions of international human rights treaties to which Kenya is party, including the International Covenant on Civil and Political Rights,[51] all people in Kenya, including refugees and asylum seekers, are entitled to protection of their property,[52] freedom from arbitrary arrest and detention,[53] and freedom from all forms of inhuman and degrading treatment or punishment.[54]
Extortion and Violence in the Border Areas
Police stationed in the immediate Liboi border area and along the road running to Dadaab and Garissa systematically stop and extort money from thousands of Somali asylum seekers who cross the border in vehicles with the help of smugglers.[55] In some cases, police then rape women and assault men. When Human Rights Watch reported on such abuses in March 2009, a senior DRA official admitted that security forces might cause problems for asylum seekers arriving from Somalia because those forces did "not understand the implications of such actions."[56] Based on Human Rights Watch´s most recent findings, the Kenyan authorities appear have taken no action to help Kenya´s police officers to better understand the implications of their abuses.
Police Extortion in the Border Areas near Liboi
Human Rights Watch spoke to dozens of Somali refugees who described how police patrolling the border areas near Liboi had stopped their vehicles—carrying an average of around 25 women, children, and men—to extort money from them in exchange for free passage to the camps.[57] Refugees told Human Rights Watch that police sometimes held young children hostage to force their parents to pay money to secure their release.
Many people living and working in Liboi, Dadaab, and Garissa told Human Rights Watch that in their view the police—who, in the words of more than one interviewee, had become (Kenyan Shilling) "millionaires overnight"—were the only beneficiaries of Kenya´s border closure. This echoes views expressed in a public meeting in Garissa in the summer of 2009 during which Garissa community representatives said they felt ashamed that the police were constructing new buildings (homes and for business) in Garissa using the money they were making from their extortion of Somali refugees and asylum seekers.[58]
A driver working in the border areas told Human Rights Watch:
I used to drive from Dobley to the camps about three times a week. Until around July 2009 we never had any problems because every time we met the police, whom we knew well, we paid them money to pass. But in August, there was a big deployment of police and soldiers. The soldiers don´t ask for money and just take people to the Dadaab police station, but the new police officers ask for very large amounts of money to let people pass.[59]
Human Rights Watch spoke to many refugees who had faced extortion on the way to the camps in 2008, 2009, and 2010. The following are just two examples.
A 28-year-old woman from Mogadishu entered Kenya near Liboi with her six children on New Year´s Day 2009, traveling in a convoy of three vehicles. Shortly after crossing the border at dusk, her vehicle broke down. Soon after, policemen approached. The other two vehicles drove off, and she fled into the bush with other passengers and some of her children:
We started running because in Mogadishu we heard about Kenyan police raping Somali women near the border. I fled with two of my children—my new-born baby and my three year-old—and left my other children behind: my physically handicapped seven-year-old daughter and the three others, aged 12, eight, and six. I found my way back to the road and a vehicle picked us up and took us to the camps that same night.
In the morning I called the driver on his phone. He said the police were holding my children and the other passengers and that they would send them back to Somalia if we did not pay them KES 10,000 ($133). He said that all the passengers who had reached the camps should collect the money and give it to one of the drivers of the other two vehicles that had escaped. Once he had delivered the money they would release the car and the passengers. We paid the money and the police released everyone and the car. My children arrived in the camp later the same day.[60]
A 20-year-old man whose leg was blown off by a mortar that landed near his home in Mogadishu in 2006 said:
I crossed the border in a minibus near Liboi at the end of February [2010]. Three Kenyan policemen arrested all of us—four women, seven children, and four men—and walked us around Liboi from 7 in the evening until 2 in the morning until we agreed to pay them KES 3,100 ($41) so that we could continue to the camps. Then they stole our mobile phones and let us go.[61]
Police Violence in the Border Areas near Liboi
Human Rights Watch spoke with a number of refugees who said that police in the border areas near Liboi had assaulted them after stopping their vehicle to extort money from them. Two women said they had been raped, one said she had seen police take away other women who were almost certainly raped, and a number of male refugees said that the police had separated men from the women and children and had taken the men away while leaving the women behind with police officers. Others said that they and their fellow passengers were assaulted with rifle butts, kicked, beaten, and slapped by Kenyan police. In one case, soldiers shot at a moving minibus driving through the bush, killing a young man on board.
Rape and separation of men and women
Human Rights Watch spoke with two women who said police officers had raped them after stopping their vehicles in the border areas.[62] Other refugees said the police separated men and women and children, with some officers driving the men to the Liboi police station and others remaining behind with the women and children.
A married Somali woman with four children, including a 12-day-old baby entered Kenya near Liboi around February 15, 2010 on foot, together with around 25 men, women, and children:
Suddenly we saw ten Kenyan police officers. They had long guns and were wearing green uniforms. When they saw us they shot in the air. Everybody started running, but I had my baby so I could not run. Three of them stopped me. I told them I had a 12-day-old baby and asked them to leave me alone. They ignored me and one of them kicked me on the right side. I fell over with my baby. Then he raped me, with my baby on the ground close by. Then one of the other two men raped me. The third man stood close by. When they finished, they let me go. I grabbed my baby and ran after the others.[63]
A 35-year-old woman who traveled directly from Mogadishu to Liboi in February 2010 in a vehicle with five men, five children, and three women told Human Rights Watch:
It was night time when the driver stopped the car and said, "This is Liboi." Suddenly, around 10 men approached the car. They were wearing uniforms and black boots and the same belts. They had small guns. The driver said they were "officers." We did not know the language they were speaking but the driver understood them. They told us to get out of the vehicle. They pushed the women to one side and the men and children to another.
Then they gestured at us women to move. They slapped us and hit us with the guns and shouted at us. Four of them took the three of us away. When we stopped we could still hear the faint cries of the children. Then all four men raped each one of us. They also beat us. They kicked me in the stomach and back and on the head. While they raped me they held me in a choke position. I can´t remember how long it took because I was in so much pain. When it was over, they took everything we had—money and some food—and left us. We walked back to the car. The other officers had left. The men told us the officers had beaten and robbed them. Then we drove to the camp.[64]
Three male refugees told Human Rights Watch that when the police stopped their vehicles in the border area they separated the men from the women and children and took the men to the Liboi police station.[65] In all these cases, the men did not know what happened to the women and children. In one of the cases, a 21-year-old man traveling with his wife and one-year-old baby boy said that when the police stopped them at the end of February 2010 on the road to Dadaab south of Liboi, they told the men and single women to get off the vehicle and pregnant women and women with children to stay on the vehicle. Then half of the police officers took the men to the Liboi police station while the other half stayed with the women and children.[66]
Shooting and other violence
A number of refugees told Human Rights Watch that police officers stopped their vehicles in the border areas and assaulted them or that soldiers fired on their vehicles.
A 20-year-old woman who entered Kenya near Liboi with 20 other adults and some children on a pick-up truck in August or September 2009 said:
Just after the driver said we were near Liboi, three Kenyan policemen stopped us and shouted, "Go back to where you came from." The driver said, "Give them money, otherwise they will take us to jail." The policemen went to the back of the truck and slapped and hit some of the others with the butts of their guns, telling them to get off.
Everyone got off, but I stayed sitting in the front because I was sick. A policeman searched my pockets. Then he hit me in my stomach about two or three times using the butt of his gun and punched me on my thighs and back. Then he stole KES 5,000 ($67) from me. The policemen took the other passengers´ money and then all of them kicked, hit, and slapped them for about five minutes. Then they left us.[67]
Human Rights Watch spoke to a Kenyan minibus driver based in Garissa, who had worked for most of 2008 and 2009 in the border areas between Dobley and the Dadaab camps, but who had stopped because of increased police violence there. He said:
I stopped driving in September 2009 when one night the police stopped the bus three times. Each time they used sticks to beat the men all over, including their heads, and shouted at them, saying they were al-Shabaab and that they had illegally entered Kenya because the border was closed. In one of the places, they also poured hot tea over my assistant´s head.[68]
A woman who crossed into Kenya on January 15, 2010 together with 19 other women in a pick-up truck witnessed Kenyan police in Liboi whip one of the other women:
Five policemen stopped the truck near the Liboi police station. The other women told me that we had to give the police money so we could continue. I gave them everything I had—KES 5,000 ($67)—and the other women also gave the police money. But one woman didn´t have any so the police tugged at her clothes and then whipped her once with a belt on her back and threatened to put her in prison. The driver pleaded with the police to let her go and they let us continue our journey.[69]
Human Rights Watch spoke with a 20-year-old man who crossed the border around February 15, 2010 in a vehicle with 20 women, children, and men. Soldiers patrolling the border area fired shots at the vehicle, killing a man on board:
We crossed the border at around dusk. Soon after we heard shots and the driver accelerated. After a few minutes the bus stopped and I saw that a man who was about 25 years old and sitting in front of me had been shot through the chest. No one else was hit or injured. The man died about 30 minutes later. Just after we stopped, two military vehicles with soldiers arrived. They talked to the driver for about one hour before some of us, including me, were taken to the Liboi police station while other passengers stayed behind. The next morning the police forced everyone in my group back to Somalia.[70]
UNHCR says that in 2009, police also shot and injured a man when they opened fire on a vehicle that failed to stop at a police roadblock.[71]
Unlawful Arrest and Detention of Asylum Seekers and Abusive and Inhumane Conditions of Detention
"In the Garissa police cell, there were so many of us, we could not even sit at night. People complained of being in pain because they could not move. We were like animals in a truck."
—Human Rights Watch interview with a Somali refugee in Garissa, March 13, 2010.
Police in the border area between Liboi and the camps arrest Somali asylum seekers, usually after they have failed to hand over money.
Refugees told Human Rights Watch that police told them they were under arrest because they had "illegally entered Kenya" or were "illegally in Kenya."[72] UNHCR confirms that police often arrest asylum seekers intercepted in the border areas and charge them with illegal presence.[73] Kenya´s Immigration Act does prohibit entry into Kenya without a permit, an offense punishable by a fine of up to KES 20,000 (approximately $300) or one year´s imprisonment.[74]
However, the Act does not apply to asylum seekers. Under the Refugees Act, asylum seekers have a right to freely enter Kenya and travel within 30 days to claim asylum at the nearest office of Kenya´s Refugee Commissioner.[75] This right applies regardless of whether they have entered Kenya through an official border crossing point or whether they are in possession of identity documentation or a permit to enter Kenya.[76] If police stop a Somali national entering Kenya without a permit, they may only arrest and detain that person if he or she does not wish to claim asylum.
Every refugee Human Rights Watch interviewed about their arrest between the border and camps said that they had told the police they were fleeing violence in Somalia and were trying to reach the refugee camps, but that the police ignored their requests for asylum.
Human Rights Watch asked the Provincial Police Officer in Garissa whether he was aware that his police officers were routinely and unlawfully arresting scores of asylum seekers. He said that no such arrests were taking place. He then added, "If a person is here unlawfully, the law should take its course," but that if "they surrender to the police station as soon as they arrive, then we cannot arrest them."[77]
On May 5, 2010, the Minister of State for Provincial Administration and Internal Security informed Human Rights Watch that "the number of refugees from Somalia who have settled in Dadaab camps, who are currently estimated to be over 270,000, is testimony that we do not arbitrarily and unlawfully arrest and detain them in our police cells."[78] But many of the refugees interviewed by Human Rights Watch said they were first arrested and detained by the police before being released and allowed to register in the camps. The number of camp residents therefore has no bearing on whether they were unlawfully arrested and detained before they registered in the camps.
Asylum seekers unlawfully arrested in the border areas are arbitrarily detained for around four days and nights in the Liboi police station in inhumane conditions where at times they face police violence. If they give in to further extortion at the police station and pay bribes, they are released and can proceed to the camps. If they do not pay, they are unlawfully returned to Somalia or transferred to Dadaab and/or Garissa police stations where they are arbitrarily detained in equally inhumane conditions for days or even weeks at a time. In Garissa they are incorrectly charged with being unlawfully present in Kenya and face further extortion, including after the Garissa court has ordered their immediate release. The aim of charging asylum seekers in Garissa, and the related prolonged detention, appears to be to extort as much money as possible from detainees, using middle men to contact and pressure their relatives in Garissa and Nairobi to pay money to secure their detained relatives´ release.
The Liboi Police Station
Asylum seekers arrested in the border areas who are unable to give police money and who are not immediately deported to Somalia are taken to Liboi police station where they face days of further extortion, detention in inhumane conditions, and ill-treatment.
A number of refugees told Human Rights Watch that police kicked, punched, slapped, and stamped on them and used sticks to assault them.
A 21-year-old man who crossed into Kenya near Liboi at the end of February 2010 was intercepted by police south of Liboi. Five police officers took him and eight other men to the Liboi police station where they were detained in a 4m x 4m cell for five days:
They asked us for money and said that if we didn´t pay, they would beat us. All of us said we had no money, but the police found one man had $150 and took it from him. Then four policemen kicked, punched, and slapped us. For a few minutes, they slapped my face, punched me in the sides, and kicked my legs. They did the same to us every morning of the five days we were detained there and each time they asked us for money. They released us on the sixth day after a Liboi businessman paid the police KES 4,000 ($53).[79]
Echoing many other refugees who told Human Rights Watch that police officers called them "al-Shabaab" or "terrorists," a 20-year-old refugee—traveling with 18 other people who the police intercepted on the main road between the border and Liboi in February 2010—said:
The police took all of us to the Liboi police station and held us there for seven days. They said that if we each paid KES 10,000 ($133), they would release us and that if we did not pay they would take us to the Garissa court. No one could pay. For the first four days the police came into the cell twice a day and beat the legs of the four young in our group with sticks, saying they were al-Shabaab. They also slapped them in the face. After around four days, four of the men in our group paid about KES 7,000 ($93) each and were released. The rest of us couldn´t pay so we stayed another four days, but at least the beatings stopped.[80]
Asylum seekers are usually held in Liboi for about four days and nights in appalling conditions before being released (if they can pay bribes), or (if they can´t pay) returned to Somalia, or transferred to Dadaab and/or Garissa. Women, girls, and boys under the age of 10 and men and boys over the age of 10 are separated and held in groups of around 15 people in poorly ventilated and extremely hot 3m x 3m or 4m cells. Most refugees said they received no, or almost no, food and water and that they often depended on charitable Liboi locals for both. Some said they were not allowed to use the toilet and had to use the cell floor to urinate and defecate. Others said they were allowed to use a toilet after hours of pleading. Some said they were freed when locals paid police bribes and others said the police stole all their belongings.[81]
Typical of many refugees who told Human Rights Watch of the inhuman and degrading conditions in Liboi was a 20-year-old man from Mogadishu who was arrested near Liboi around February 22, 2010:
They put us 19 men in one very small cell for four nights. The cell was about 3m x 3m and there were three other men in there already. We couldn´t sit down; it was so small. There was very little air, only a small opening near the ceiling, so it was very hot. We were so stressed we could not sleep at night. We had to beg the police to allow us to go to the toilet. Usually after an hour or two of pleading, they let us go. They only gave us one glass of water a day and a little ugali [African porridge made of cornmeal] at lunch so we were always thirsty and hungry. They released us after the elders in Liboi paid the police KES 6,000 ($80) to have us released.[82]
UNHCR says that, despite continued security concerns for UNHCR staff, between January 2009 and end April 2010 it has undertaken 21 "protection border monitoring visits" to Liboi and that it has a "focal person to assess the conduct of government officials at the border." UNHCR says that this has improved asylum seekers access to asylum procedures, including through pressing the police in Liboi to release asylum seekers so that they can travel to the camps for registration.[83]
The Dadaab Police Station
Asylum seekers who are transferred from Liboi to Garissa are held for between one and four days and nights at one or both of the police stations in Dadaab town (where UNHCR and other aid agencies are based). Human Rights Watch spoke with many refugees who had been detained in Dadaab in small, poorly ventilated, and overcrowded cells (3m or 4m x 3m holding around 15 people) with very little water and little, if any, food. Some were allowed to leave to access the toilet and others said there was one bucket in the cell.
A 31-year-old man told Human Rights Watch how he and 30 other people—10 women, 5 children, 15 men—with whom he was travelling were intercepted and arrested just before they reached the camps on March 6, 2010. The police took all of them to the Dadaab police station where they were held for two days before the police transferred them to Garissa:
They put me in a cell with the other 15 men. They put the women and children in a separate cell. They gave us no food or water. Our cell was about 3m x 4m and there were already ten men there when we got there. It was so full that even standing up we could hardly move. The police did not allow us to leave the cell to go to the toilet so we had to use the floor. Before we left, they forced us to leave all our belongings behind—everything we had brought from Somalia—and we never saw them again.[84]
In another case, a refugee registered in the camps was expecting his six-month pregnant wife, their one-year-old son, and four-year-old deaf daughter to join him from Mogadishu in February 2010, only to find that they had all been arrested and detained in Dadaab. The same man said that, while he was in the police station pleading with the police to be allowed to see his wife, he saw a heavily pregnant Somali woman stumble out of the cell and vomit after complaining about the heat and stench in the cell.[85]
UNHCR says that its officials "regularly visit" the Dadaab police station "to maintain relationships with the police and, most importantly, to ensure that arrested refugees and asylum seekers are treated in accordance with applicable national and international law and to ensure their immediate release if the detention has no legal basis."[86]
Nevertheless, the ongoing detention of asylum seekers in appalling conditions at the Dadaab police station indicates that UNHCR needs to significantly improve its monitoring and advocacy efforts to ensure that the authorities do indeed treat asylum seekers in accordance with applicable laws.
The Garissa Police Station and Magistrates´ Court
If the police at the Liboi police station or in Dadaab fail to extort money from unlawfully arrested asylum seekers in the border areas, the police at the Garissa police station use further detention—coupled with the threat of court proceedings and imprisonment—to try one last time to do so. Police even detain asylum seekers for up to two weeks after the Garissa Magistrates´ Court has ordered their release. Many asylum seekers give in to the extortion and contact relatives in Garissa or Nairobi to pay the police tens of thousands of Kenyan Shillings (hundreds of dollars) to secure their release.
According to people living and working in Garissa, the police first started detaining large numbers of asylum seekers at the Garissa police station in March 2008, after the first large increase in new arrivals of Somalis since the mid 1990s.[87] According to numerous asylum seekers and people working and living in Garissa, the two small cells in Garissa police station are constantly full of detained Somali asylum seekers including large numbers of children and infants.[88] A local community leader who visits the police station at least twice a week told Human Rights Watch:
Everyone knows that in Garissa the police cells are always full of Somalis and that the police take bribes from everyone in the police station. At one point in February [2010], I counted as the police took everyone to court. They were all Somalis and I counted 97 people—men, women, and children.[89]
Most asylum seekers detained in Garissa police station told Human Rights Watch that the police arrested them in the border areas near Liboi or between Dadaab and Garissa before taking them to court in Garissa.[90]
Some asylum seekers bribe their way out of detention before their case goes to court. According to NGO staff and others working in Garissa, police bribes at the Garissa police station range from KES 20,000 ($266) to 50,000 ($666).[91]
Most asylum seekers pay with the help of relatives in Garissa or Nairobi who pay middle men acting as brokers between the police and detainees´ relatives, either directly in cash or through wire transfers.[92] Others go to court where at least one of the magistrates usually dismisses their case because newly arrived asylum seekers cannot be charged with unlawful entry or presence.[93]
Unaware of the law—and of the fact that they were being incorrectly charged with offenses under the Immigration Act that did not apply to them—a number of refugees told Human Rights Watch that they paid bribes to the court´s clerks who told them that paying a bribe would encourage the magistrate to dismiss the case.[94] In other cases, refugees and their relatives pay the clerks money to secure their immediate release after the court has fined them. One refugee said that after the magistrate had fined him KES 10,000 ($133) on around March 7, 2010 for being unlawfully present in Kenya as a newly arrived asylum seeker, the clerks told his relatives that if they paid another KES 10,000 he would be immediately released from custody but if not, he would be detained for three days at the Garissa police station.[95] This case indicates considerable collaboration between the court´s clerks and police based in the Garissa police station.
Refugees say they are usually detained for three days before appearing in court, followed by another three days after the court has dismissed their case while waiting for a UNHCR or police truck to take them to the camps. Two people with close knowledge of the situation said that sometimes asylum seekers are detained for two weeks after magistrates have ordered their release, pending UNHCR transportation to the camps. UNHCR does not have protection monitors working in Garissa which means that until February or March 2010, UNHCR waited for the police to contact—and request trucks from—them in Dadaab to collect up to 60 asylum seekers at time. Local NGOs and lawyers claim that Garissa police further extort asylum seekers even after the court has ordered their release, until newly arrested asylum seekers are brought to the police station. At that point the police call UNHCR to help empty the cells to make way for the newly arrested arrivals.[96]
On March 10, 2010, UNHCR said it had "recently" stopped trucking people from Garissa to the camps and that it had "told the police that arresting asylum seekers was against the law, so they have to deal with it [returning them to the camps once the Garissa court has ordered their release]."[97] UNHCR added that since the change of policy, it was giving fuel to the police to truck asylum seekers back to the camps.[98] UNHCR does not interview asylum seekers returned to the camps from Garissa about their experiences during their arrest and detention in the border areas and Garissa, but it does keep a lists of their names on file.[99]
Detention conditions in Garissa are even worse than in the Liboi and Dadaab police stations. Twenty to 50 detainees, including infants and children, are crammed into cells between 2m x 4m and 3m x 5m in size. At times police provide small amounts of food and water and at others detainees eat nothing or depend on relatives in Garissa. Refugees said that they were not allowed to use toilets and had to use buckets or the floor.[100]
Human Rights Watch spoke with Garissa´s mayor, who says he regularly visits the Garissa police station:
The conditions there are terrible – the stench, the mothers clinging to their babies. It is always packed full of people. I have raised this with the Provincial Police Officer, but nothing has changed.[101]
A 32-year-old woman from Mogadishu was detained at Garissa police station in December 2009. She was eight months pregnant and had a still-birth, apparently as a result of rough police treatment, overcrowding, and poor conditions in the cell:
A policeman slapped me when I refused to enter the cell. Three policemen forced me and others behind me into the cell which was about 4m x 2m. There were at least 12 women in there and it was full. As they pushed me in, I fell over and other people being pushed in behind me stumbled and stepped on my back. I felt a sharp pain in my belly during the four days I was in the cell. There were no windows and hardly any air and it was very hot. It was so full we could not lie down to sleep, so we had to stand or sit. People vomited and urinated on the floor because the police did not allow us to go to the toilet. A month after they released me I gave birth to a still-born baby.[102]
A 42-year-old man, his wife, and their 12 children all aged below ten entered Kenya on January 28, 2010 and traveled in a minibus to the camps where police intercepted the bus at 2 am. After four days in detention in appalling conditions at the Dadaab police station where they repeatedly and unsuccessfully asked the police to contact UNHCR located five minutes from the police station, they were transferred to Garissa the evening of Monday February 1:
Just like in Dadaab, they separated the men from the women and I spent another night separated from my family. On Tuesday morning they took us to court. My children were crying because they had hardly eaten. We told the judge what had happened in Dadaab. I told him I had been crying on one side of the wall and could hear my children crying on the other side and that it was the worst thing that has happened in my life. The judge cried with us and said, "What is this detention of children for?" He ordered us to be released immediately. Then he ordered us to be given food, in the court. Then the police took us back to the police station and we were held for another three days and nights waiting for a UNHCR truck to take us back to the camps. My cell which was about 5m x 3m and there were between 20 and 60 men at a time. There was no room to lie down.
When we complained enough, the police allowed us to go to the toilet, but never more than once a day. We were forced to urinate on the floor. My wife said that her cell was so full they had to stand most of the time, including at night time.[103]
Human Rights Watch also spoke with a witness of police violence at the Garissa police station. Detained at the Garissa police station for three nights in mid December 2008, he said:
I was detained with 20 other people in a very small cell. We were like animals in a truck. While I was there, I saw the police severely beat an 18-year-old Somali man in my cell. He was shouting because he had kidney pain. He begged the police to let him out. Three officers came in and attacked him. For about ten minutes, they punched him in the head and kicked him and whipped him with a Nyunyo [a thin rubber whip] all over his body. He lost consciousness.[104]
UNHCR says that in Garissa it has "endeavored to negotiate the release of refugees and asylum seekers arrested and charged with illegal presence in the country, though in most cases police have insisted that defendants be brought before the court," that it has "negotiated [for] space for children arrested in Garissa to be accommodated at a children´s home," and that "efforts have been made to ensure that asylum seekers do not remain in detention after being acquitted by the court communication with police and visits to police stations have reduced the period that refugees and asylum seekers are detained."[105]
Standards Governing the Detention of Asylum Seekers
Prohibition of arbitrary detention
Kenya is a party to the International Covenant on Civil and Political Rights which states that "no one shall be subjected to arbitrary arrest or detention [or] be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law."[106]
Detention is considered "arbitrary" if it is not authorized by law or in accordance with law. The UN Working Group on Arbitrary Detention has developed principles for determining when the deprivation of liberty of asylum seekers is arbitrary.[107] The principles specifically refer to "places of custody situated in border areas" and to "police premises." According to these principles, detention "must be founded on criteria of legality established by the law," detainees must "be brought promptly before a judge or other authority," and detention may "in no case be of excessive length."[108] Principle 10 states that "the Office of the United Nations High Commissioner for Refugees (UNHCR) … must be allowed access to the places of custody." Under Kenya´s Refugee Regulations, UNHCR has a right to visit all detained asylum seekers.[109]
Treatment of detainees and conditions of detention
The United Nations has adopted principles governing the treatment of detainees.[110] The principles set out the basic requirements under international law that all detainees be treated in "a humane manner and with respect for the inherent dignity of the human person," that arrest and detention be carried out "strictly in accordance with the law," that no detainees be "subjected to torture or to cruel, inhuman, or degrading treatment or punishment," that anyone arrested "shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him," that during interrogation no detainee be subject to "violence, threats, or methods of interrogation which impair his capacity of decision or his judgment," that any detainee or his legal representative are entitled to promptly "challenge the lawfulness of the detention," and that "to supervise the strict observance of relevant laws and regulations, … places of detention … be visited regularly by qualified and experienced persons."[111] The principles also specifically single out the rights of detained refugees to communicate with the representative of "the competent international organization," which in a context where UNHCR is present clearly refers to UNCHR.[112]
UN Standards on the Treatment of Prisoners require that children be detained separately from adults and that all prisoners receive adequate food and, at all times, drinking water.[113]
Refoulement of Hundreds of Somali Asylum Seekers in Early 2010
In the space of a few days, Human Rights Watch documented eight separate incidents in which Kenyan police returned Somali asylum seekers to their war-torn country. These eight incidents took place between September 2009 and March 2010 and involved 152 women, children, and men. This sample suggests that hundreds if not thousands of Somalis are being returned to Somalia every month. They join the hundreds if not thousands of Somalis returned to Somalia in 2008 and 2009.[114] In forcing Somalis back across the border, the Kenyan authorities are systematically violating the most fundamental principle of refugee law, the right not to be refouled—forcibly returned to face persecution and other threats to life and freedom.
The Minister of State for Provincial Administration and Security has told Human Rights Watch that "there are no reports or known cases of asylum seekers being returned to Somalia. It is highly unlikely that there is any refugee who has been returned to Somalia by any Government agency or department."[115]
Refugees told Human Rights Watch they were either forced back across the border directly upon arrival from Somalia after being apprehended in the bush or on the road to the camps, or in most cases forcibly returned after having been detained at the Liboi police station for several days. In all cases, the police first tried to extort money from them.
A 30-year-old woman traveling with her one-and-a-half-year-old son said that Kenyan soldiers—not police—told the driver of the bus carrying her and other Somalis across the border that they could either return to Dobley, in Somalia, or be arrested. The group chose to return to Dobley.[116]
A 30 year-old physically handicapped Ethiopian man traveling with his wife and newborn baby boy—born in Dobley during the journey—crossed into Kenya during Ramadan 2009 (August 21 – September 20, 2009) near Liboi. Police intercepted the minibus near Liboi, detained him, handed his wife and baby to the UN, and deported him to Somalia:
At the police station, the police asked us whether we knew that the border was closed. We said that we didn´t and that we were fleeing problems in Ethiopia and looking for safety in Kenya. Then one of the policemen hit me on the back with his police baton and pushed me into a cell. He said, "If you pay money you will be released." I gave him KES 7,000 ($93) and said it was for me, my wife and my baby. He took the money but only released my wife and baby. The next day the police told me they had handed my wife and baby over to the UN. Then they drove me and three other men back to where they had stopped us and told us to walk back to Dobley. I came back to Kenya and found my wife and baby in the camps four days later.[117]
A 26-year-old man traveling with his young daughter in a minibus with 25 other people, including eight women and six children, was detained in Liboi around January 25, 2010:
Four Kenyan policemen stopped us between Dobley and Liboi and said, "Give us money or we will send you back." The driver negotiated with them for two hours, but then they took us to the Liboi police station. They put me in a cell with the 10 other men for eight days and they put my daughter in a cell with the women. After eight days they put all of us in a pick-up truck and the police drove behind the truck to a place in the bush near the border. They told us to get off and walk the rest of the way to Dobley.[118]
Human Rights Watch spoke with a woman who entered Kenya with her 13 children in late January 2010:
The police stopped us on the road from the border to Liboi. We were in the police station for one night. The smugglers talked to the police all night, but they did not agree on a price [for our release]. The next day the police took us back to our bus and drove us to the edge of Liboi. They told the driver to drive us back to Dobley and he did.[119]
Human Rights Watch asked the North Eastern Province´s Provincial Police Officer about police forcing Somalis back across the border. He answered, "I have never heard of cases of refoulement. Returning people to Dobley is not part of our instructions."[120]
Human Rights Watch also spoke with a senior public figure in Garissa who said that police involved in the January 17, 2010 sweep against Somalis in Nairobi called him in the last week of January to let him know they were deporting 800 Somalis from Nairobi to Dobley in trucks. He saw the trucks pass through Garissa the following day.[121] UNHCR says that it is aware of "the refoulement of 60 persons of Somali origin from Nairobi and an additional 15 persons from Thika Law Courts" [40 kilometers from Nairobi], all of whom were arrested in Nairobi during the sweep.[122] UNHCR also says that in the first four months of 2010 it intervened to prevent the refoulement from Nairobi of 28 asylum seekers and 67 refugees.[123]
UNHCR says it wrote to the Minister of State for Immigration and Registration of Persons to raise UNHCR´s concerns about refoulement that had taken place from Nairobi after the January 2010 police operation. The Minister replied that the matter was in the hands of the President´s Office.[124]
Prohibition of Refoulement
Under its Immigration Law, the authorities have the right to regulate who is present on its territory and may prevent certain categories of people from entering or remaining in Kenya, including those deemed to be a threat to its national interests.[125] Despite legitimate security concerns (see above, Chapter I), Kenyan and international law obliges Kenya to allow asylum seekers access to Kenyan territory to seek asylum and prohibits their refoulement—forcible return—to a place where a person faces a threat to life or freedom on account of race, religion, nationality, membership of a particular social group, or political opinion.[126]International law further prohibits the refoulement of anyone, whatever their status, to a situation where they would be at real risk of torture or cruel, inhuman, or degrading treatment.[127]
Applying the refugee definition in the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), Kenyan law provides that any non-Kenyan in Kenya has the right not to be returned to a place where "the person´s life, physical integrity, or liberty would be threatened on account of external aggression, occupation, foreign domination, or events seriously disturbing pubic order…,"[128] and provides that such a person shall automatically be deemed to be a refugee ("primafacie refugee").[129] Somalis registering in Dadaab with UNHCR and—to an unknown extent—Somalis registering with the DRA in Nairobi are automatically granted status in Kenya on this prima facie basis.[130]
Kenya may only deny a person refugee status who otherwise qualifies under the criteria in the OAU Refugee Convention if the person falls within one or more categories excluded from refugee status by Kenyan law and then only after it has conducted an individual review of that person´s background.[131]
Notes
50] Human Rights Watch email exchange with UNHCR Geneva, February 5, 2009.
51] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, http://www2.ohchr.org/english/law/ccpr.htm (accessed March 19, 2008), acceded to by Kenya on May 1, 1972.
52] Section 75, Constitution of Kenya.
53] Section 72, Constitution of Kenya.
54] Section 74, Constitution of Kenya.
55] "People smugglers" should be distinguished from "human traffickers." A person smuggler facilitates transportation, including cross-border movement, for a fee that is voluntarily paid by the person being smuggled: "smuggling of migrants" is defined as "the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident." Article 3(a), Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf (accessed June 1, 2010). A human trafficker is a person engaging in unlawful activity involving "the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation." Article 3(a), Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf (accessed April 12, 2010).
56] Human Rights Watch, "Kenya: Instruct Officials to Protect Somali Refugees," April 11, 2009, http://www.hrw.org/en/news/2009/04/11/kenya-instruct-officials-protect-somali-refugees.
57] Human Rights Watch interviews in Ifo and Dagahaley camps, March 6 – 11, 2010. In Dobley, smugglers arrange for an average of around 25 people (men, women and children) to cross the border in minibuses or pick-up trucks and tell the passengers that the fare to the camps includes the cost of paying off corrupt Kenyan police to guarantee free passage to the Dadaab camps or to Garissa. In reality, once Kenyan police intercept a vehicle, the smugglers reportedly "negotiate" with the driver who then turns to his passengers and asks for additional money which, for the most part, passengers don´t have.
58] Human Rights Watch interview with NGO, name withheld, Nairobi, March 3, 2010.
59] Human Rights Watch interview, Dagahaley camp, March 8, 2010.
60] Human Rights Watch interview, Ifo camp, March 7, 2010.
61] Human Rights Watch interview, Ifo camp, March 8, 2010.
62] A third woman said that police had taken other women from her vehicle away and had returned with them—cut, disheveled and bleeding—two days later. See text box on page iii.
63] Human Rights Watch interview, Ifo camp, March 9, 2010.
64] Human Rights Watch interview, Dagahaley camp, March 9, 2010
65] Human Rights Watch interviews, Ifo camp.
66] Human Rights Watch interview, Ifo camp, March 7, 2010. When he was reunited with his wife in the camps a week later, he did not ask her what had happened to the women.
67] Human Rights Watch interview, Dagahaley camp, March 7, 2010.
68] Human Rights Watch interview, Dagahaley camp, March 8, 2010.
69] Human Rights Watch interview, Ifo camp, March 7, 2010.
70] Human Rights Watch interview, Dagahaley camp, March 9, 2010.
71] Human Rights Watch email exchange with UNHCR, May 7, 2010.
72] Human Rights Watch interviews with numerous refugees in Ifo and Dagahaley camps, March 7 – 11, 2010.
73] Human Rights Watch email exchange with UNHCR, May 6, 2010. UNHCR says that for some time, the police arrested asylum seekers who had reached the camps, took them away and charged them with illegal presence in Kenya. UNHCR says that it has intervened to stop this practice. Human Rights Watch email exchange with UNHCR, May 6, 2010.
74] Ss. 4 and 13(2)(c), Kenyan Immigration Act, 1967, http://www.immigration.go.ke/act.htm (accessed April 20, 2010). Human Rights Watch interview, Garissa, March 14, 2010.
75] Refugees Act, 2006, Act No.13 of 2006, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php (accessed April 20, 2010), section 11(1); Refugees (Reception, Registration and Adjudication) Regulations, 2009, http://www.unhcr.org/refworld/docid/4a1c0d782.html (accessed April 20, 2010), reg. 3. In the case of asylum seekers crossing the Somali border, the nearest offices are in the Dadaab camps (UNHCR) and Dadaab town (DRA).
76] Section 11(1), 2006 Refugees Act.
77] Human Rights Watch interview, Garissa, March 13, 2010.
78] Letter from George Saitoti, Minister of State for Provincial Administration and Internal Security, to Human Rights Watch, May 5, 2010. On file with Human Rights Watch.
79] Human Rights Watch interview, Ifo camp March 7, 2010.
80] Human Rights Watch interview, Ifo camp March 7, 2010.
81] Human Rights Watch interviews in Ifo and Dagahaley camp, March 7, 8 and 10, 2010.
82] Human Rights Watch interview, Ifo camp, March 8, 2010.
83] Human Rights Watch email exchange with UNHCR, May 6, 2010.
84] Human Rights Watch interview, Ifo camp March 9, 2010.
85] Human Rights Watch interview, Ifo camp, March 7, 2010.
86] Human Rights Watch email exchange with UNHCR, May 6, 2010.
87] Human Rights Watch interviews, Garissa, March 13 and 14, 2010.
88] Until 2007, the police station in Garissa only had one cell. In 2007, a second cell for women and children was added. Human Rights Watch interview with the Mayor of Garissa, March 14, 2010.
89] Human Rights Watch interview, Garissa, March 14, 2010.
90] Human Rights Watch also spoke with registered refugees detained in Garissa (and at times convicted in Garissa magistrate´s court) for moving outside the camps without authorization. See below, Chapter VI. According to lawyers working there, these are a small minority of cases and the vast majority of Somali detained in Garissa police station are newly arrived, unlawfully detained asylum seekers.
91] Human Rights Watch interview, Garissa, March 13, 2010.
92] A senior police officer tells brokers working with the police how much money the police want for a given Somali asylum seeker or refugee in detention. The brokers, many of whom come from prominent and wealthy families in Garissa, pass on the information to the detainees´ relatives who use the broker to transfer the money to the police (or to tell the police the amount is too high). The detainees and their relatives know it is better to pay the police before the case goes to court because if a person is released before going to court they can try to travel from Garissa to Nairobi. On the other hand, once a case has gone to court, then even if the magistrate orders the detainee to be released, (s)he is taken to the camps from where (s)he has to make his or her way through check points between the camps and Garissa if (s)he wants to reach Nairobi. Human Rights Watch interview with person working for years with Somalis in Garissa (name withheld), Garissa, March 13, 2010.
93] However, a person with good knowledge of these cases says that the outcomes sometimes "vary." Human Rights Watch interview (name, location and precise date withheld), Kenya, March, 2010. A person working for many years with Somalis in the region says that some magistrates use the court´s clerks to encourage asylum seekers and refugees and their relatives to pay money to secure a favorable judgment. Human Rights Watch interview (name withheld), Garissa, March 13, 2010. UNHCR says that "generally, the courts apply the Refugees Act, 2006 as opposed to the Immigration Act." Human Rights Watch email exchange with UNHCR, May 7, 2010.
94] Human Rights Watch interviews with refugees in Ifo camp, March 8 and 10, 2010. A lawyer working in Garissa confirmed that this practice is widespread. Human Rights Watch interview, Garissa, March 15, 2010.
95] Human Rights Watch interview, Ifo camp, March 9, 2010.
96] Human Rights Watch interviews with local NGO staff and lawyers working in Garissa, March 13 and 14, 2010. UNHCR first began trucking unlawfully arrested and detained asylum seekers from Garissa to the camps in mid 2009. Human Rights Watch interviews with local NGO staff and lawyers working in Garissa, March 13 and 14, 2010.
97] Human Rights Watch interview with UNHCR, Dadaab, March 10, 2010.
98] Ibid.
99] Human Rights Watch interview with UNHCR, Dadaab, March 10, 2010.
100] In mid March 2010, Human Rights Watch met with the Provincial Police Officer to share our findings, including on unlawful arrest and detention. According to reports from Garissa, a week or so later a new latrine was being built at the Garissa police station.
101] Human Rights Watch interview, Garissa, March 14, 2010.
102] Human Rights Watch interview, Ifo camp, March 11, 2010.
103] Human Rights Watch interview, Dagahaley camp, March 10, 2010.
104] Human Rights Watch interview, Garissa, March 13, 2010.
105] Human Rights Watch email exchange with UNHCR, May 6, 2010.
106] Article 9, International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, http://www2.ohchr.org/english/law/ccpr.htm (accessed March 19, 2008), acceded to by Kenya on May 1, 1972. Article 6, African [Banjul] Charter on Human and Peoples' Rights (ACHPR), adopted June 27, 1981, OAU doc. CAB/LEG/67/3rev.5, 21 I.L.M. 58 (1982) entered into force October 21, 1986, ratified by Kenya 1992, http://www.achpr.org/english/_info/charter_en.html (accessed May 18, 2010).
107] United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/2000/4, December 28, 1999, Annex II, Deliberation No. 5, "Situation Regarding Immigrants and Asylum Seekers," http://www.unhchr.ch/Huridocda/Huridoca.nsf/0811fcbd0b9f6bd58025667300306dea/39bc3afe4eb9c8b480256890003e77c2?OpenDocument#annexII (accessed April 12, 2010).
108] Principles 6, 3 and 7 respectively.
109] Reg. 17(4), Refugees (Reception, Registration and Adjudication) Regulations, 2009, http://www.unhcr.org/refworld/docid/4a1c0d782.html (accessed June 1, 2010).
110] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), http://www.un.org/documents/ga/res/43/a43r173.htm, (accessed April 12, 2010).
111] Principles 1, 2, 6, 10, 21(2), 32(1) and 29(1) respectively.
112] Principle 16(2).
113] United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, http://www2.ohchr.org/english/law/pdf/treatmentprisoners.pdf (accessed April 12, 2010), rules 85(2), 87 and 20 respectively.
114] Human Rights Watch, From Horror to Hopelessness, Chapter IV.
115] Letter from George Saitoti, Minister of State for Provincial Administration and Internal Security, to Human Rights Watch, May 5, 2010. On file with Human Rights Watch.
116] Human Rights Watch interview, Ifo camp, March 8, 2010.
117] Human Rights Watch interview, Ifo camp, March 10, 2010.
118] Human Rights Watch interview, Ifo camp, March 8, 2010.
119] Human Rights Watch interview, Ifo camp, March 7, 2010.
120] Human Rights Watch interview, Garissa, March 13, 2010.
121] Human Rights Watch interview (name withheld), Garissa, March 15, 2010.
122] Human Rights Watch email exchange with UNCR, May 6, 2010.
123] Ibid.
124] Human Rights Watch interview with UNHCR, Nairobi, March 16, 2010.
125] Section 4, Kenyan Immigration Act, 1967, Law 25 of 1967, as amended by Law No. 6 of 1972, http://www.immigration.go.ke/act.htm (accessed January 17, 2009).
126] "No person shall be refused entry into Kenya … if, as a result of such refusal … such person is compelled to return or remain in a country where … the person´s life, physical integrity or liberty would be threatened on account of … events seriously disturbing public order." Section 18(b), Refugees Act, 2006, Kenya Gazette Supplement No. 97 (Acts No. 13) (2006 Refugees Act), www.refugeelawreader.org/1036/The_Refugees_Act_2006.pdf (accessed January 31, 2009). "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." Article 33.1, 1951 UN Convention relating to the Status of Refugees (1951 Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954, and its 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967, http://www.unhchr.ch/html/menu3/b/o_c_ref.htm, (accessed January 25, 2009), acceded to by Kenya on May 16, 1996.
127] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Kenya February 21, 1997, art. 3, http://www2.ohchr.org/english/law/cat.htm (accessed May 18, 2010).
128] Section 18(b), Refugees Act, 2006, Act No.13 of 2006, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php (accessed January 13, 2009), applying the OAU Convention definition of a refugee: "no person shall be refused entry into Kenya … or returned to any … country … if as a result … such person is compelled to return to … a country where (b) the person´s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing pubic order….". Under the OAU Convention, "no person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened" for reasons that include "external aggression, occupation, foreign domination, or events seriously disturbing public order." Article 2(3), 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention), 1001 U.N.T.S. 45, entered into force June 20, 1974, http://www.africa-union.org/Official_documents/Treaties, (accessed March 13, 2008), ratified by Kenya on June 23, 1992.
129] Section 3(2), 2006 Refugees Act.
130] Unless the refugee can be excluded on the basis of exclusion criteria in section 4 of Kenya´s Refugee Act, 2006.
131] Section 11(5), 2006 Refugees Act.
Note
Picture: Map of border area between Dobley and Garissa
From: www.hrw.org
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