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July 29, 2013

A Victory for Urban Refugees: High Court Quashes Kenyan Encampment Directive

by Asylum Access

Justice prevailed on Friday as the High Court of Kenya quashed the Government’s encampment directive, ruling in favor of fundamental freedoms and dignity for urban refugees.

The government directive was first announced in December 2012 and again in January 2013 and, if implemented, would have required all refugees residing in urban areas to relocate to Dadaab and Kakuma refugee camps.  In short, the policy would have devastated the lives of urban refugees in Kenya, forcing them to abandon the homes they had resided in for years (some even decades), separate from loved ones and sever all ties to businesses and communities.

The directive was challenged on the basis that it violated fundamental freedoms enshrined in Kenya’s Constitution, the Refugee Act, 1996 and a number of other international human rights instruments. The High Court agreed.

Over the course of the 45-page judgment, the Court explained their reasoning, finding the policy to be an interference with both domestic and international law:

“First, the policy is unreasonable and contrary to Article 47(1). Second, it violates the freedom of movement of refugees. Third, it exposes refugees to a level of vulnerability that is inconsistent with the States duty to take care of persons in vulnerable circumstances. Fourth, the right to dignity of refugees is violated. Fifth, the implementation of the Government directive threatens to violate the fundamental principle of non-refoulement.”

Acknowledging the interdependency of rights, the Court remarked that to restrict freedom of movement would mean to stifle an individuals right to earn a livelihood and consequently violate his or her right to dignity. In reliance on General Comment No. 27 of the ICCPR, the Court reiterated, “Liberty of movement is an indispensable condition for the free development of a person. It interacts with several other rights enshrined in the Covenant.”

The Court went on to find that the policy violated petitioners’ right to a fair administrative action, stating:

“Every person who acquires refugee status under our law is entitled to be treated as such. The Government Directive in this respect, being a blanket directive, is inconsistent with the provisions of the Act and international law. It amounts to taking away accrued or acquired rights without due process of the law…I find and hold that a blanket government directive which has no regard for individual circumstances of the urban refugee is arbitrary and discriminative.”

The decision comes at a time when strategic litigation is increasingly being embraced by the refugee rights community as an effective tool to protect the fundamental rights and freedoms of refugees. With the assistance of legal aid, refugees are finding an avenue to assert their rights and change the legal landscape that insists upon their marginalization.

Anna Wirth is the Global Policy Fellow at Asylum Access. She  previously studied and practiced law in Melbourne, Australia (Monash University) and received her European Master’s in Human Rights and Democratisation (E.MA) from EIUC, in partnership with University of Helsinki.

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