Protection of rights of urban refugees in Kenya : revisiting Kituo Cha Sheria v The Attorney General

• Author: Laurence Juma
• DOI: 10.10520/EJC-13bd7741d4
• Published date: 01 December 2018
• Date: 01 December 2018
• Record Number: sapr1_v33_n2_a2
• Pages: 1-24

Southern African Public Law

https://doi.org/10.25159/2522-68 00/3291

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 2 | 2018 | #3291 | 24 pages

© Unisa Press 2018

Article

Protection of Rights of Urban Refugees in Kenya:

Revisiting Kituo Cha Sheria v The Attorney General

Laurence Juma

Professor of Law, Rhodes University

l.juma@ru.ac.za

Abstract

This article discusses the judgment in the landmark case of Kituo Cha Sheria &

Others v Attorney General in the light of the emerging rights jurisprudence in

the area of refugee rights. It also explores the impact the judgment could have

on the articulation of the rights of urban refugees in Kenya. Based on the

assumption that Kenya’s 2010 Constitution provides an opportunity for the

robust enforcement of rights, the article analyses the key rights and protection

imperatives that were at the centre of the dispute. These include the right to

dignity, freedom of movement and to work, and also the principle of

refoulement. These rights are at the core of the protection agenda for urban

refugees.

Keywords: refugee protection; urban refugee rights; refoulement; encampment

Introduction

Profound inconsistency exists between human-rights law and government policy on the

management of urban refugees in Kenya. The inconsistency is manifest in the poor

implementation of existing refugee law, the improper calibration of refugee rights by

governmental organs, and the pervasive faith in the policy of encampment. The

challenges that arise from the inability of the State to bridge the gap between human-

rights standards and policy have attracted the attention of scholars through the years.1

But change has been slow in coming. Among the factors inhibiting change is the

1 See, for example, Marc-Antoine Perouse de Montclos and Peter Kagwanja, ‘Refugees Camps or Cities:

Socio-economics of Dadaab and Kakuma Camps in Northern Kenya’ (2000) 13(2) J Refugee Studies

205; Elizabeth Campbell, ‘Urban Refugees in Nairobi: Problem of Protection Mechanism of Survival

and Possibilities Integration’ (2006) 19(3) J Refugee Studies 396.

2

inability of the legal system to live up to expectations. Consistently, interventions meant

to improve refugee protection are frustrated by poor legal infrastructure and inept

mechanisms for rights protection. And while there is a sense that bridging the gap

between law and policy could benefit from a more active judicial system, cases relating

to the flagrant abuse of refugee rights rarely reach the courts. This is probably because

the system does not appear to have any appetite to deal with them or parties are directly

or indirectly unable to find access to the courts. For good reason, scholars have

continually lamented the diminished contribution of the legal system in general, citing

its poor interaction with refugee issues and its inability to enforce the government’s

commitments in both international treaties and domestic laws.2

Although the state of affairs appears oblique, recent developments provide cause for

some optimism. A combination of factors that have unfolded since the adoption of the

new Constitution in 2010 indicate that the role of the judiciary in rights enforcement is

becoming more pronounced. The new constitutional dispensation has created a new

dynamic in the relationship between citizens and the courts, one that is likely to lessen

the traction in the development of rights jurisprudence. In particular, the new

dispensation has opened up space for human-rights litigation which may, in the long

run, help condition policy directions. As courts become more accommodating of

human-rights disputes, refugee concerns are now finding their way into the courts more

often than in the past. One example is the case of Kituo Cha Sheria & Others v The

Attorney General,3 decided by the High Court in the second half of 2013. In this

landmark case, the court embraced without limitation a strong vision of the rights of

refugees living in urban or any other environment away from the camps. Its holding that

government po licy that denied refugees the right to reside and work in Nairobi and other

urban centres in Kenya was null and void was indeed a major breakthrough in

consolidating the rights of urban refugees in Kenya. I hesitate to draw the conclusion

that the decision marks a complete departure from the conservatism of the past, because

in the following year (2014) the same Court in Samow Mumin Mohamed v Cabinet

Secretary, Ministry of Interior Security and Co-Ordination4 declined to grant the same

rights. The reasons for the decision in Samow Mumin Mohamed include some technical

and procedural matters that have little to do with rights per se.5 For that reason, this

article focuses on Kituo Cha Sheria case, because it offers more progressive

jurisprudence, and legal scholars and activists may benefit from the manner in which

the Court articulates the rights relevant to urban refugees.

2 Guglielmo Verdirame, ‘Human Rights and Refugees: The Case of Kenya’ (1998) 12(1) J Refugee

Studies 54.

3 High Court of Kenya, Nairobi, Petition no 19 and 115 of 2013; (2013) eKLR 2.

4 (2014) eKLR 2.

5 A short discussion of this decision can be found in Robert Nanima, ‘An Evaluation of Kenya’s Parallel

Legal Regime on Refugees and the Cour ts Guarantee of Their Rights’ (2017) 21 Law Democracy &

Development 42.