The government has suffered a blow while refugees celebrate after the High court has ruled that the decision by the government to close down Dadaab camp as unconstitutional as it violates the rights of refugees.
While delivering the judgment, Justice John Mativo declared the directive by interior CS Joseph Nkaissery to repatriate refugees and asylum seekers of Somali origin on 10th May 2016 as arbitrary(based on random choice or personal whim, rather than any reason or system)
The judge also declared the directive by interior PS Karanja Kibicho on 6th May 2016 disbanding the Department Of refugee affairs as null and void citing that he acted outside his powers
“I hereby declare that Nkaissery and Kibicho acted in excess and abuse of their powers, in violation of the rule of law and in contravention of their respective oaths of office contrary to article 2,3, 10 and 75(1) (c) of the constitution,” Mativo ruled.
Justice Mativo also ordered the interior PS, CS and the AG, with immediate effect to restore the status quo ante predating the impugned directive with regard to the administration of refugees’ affairs in the republic of Kenya and to specifically with immediate effect, reinstate and operationalize the department of refugees’ affairs.
The judge further declared that the government decision specifically targeting Somali refugees as an act of group persecution, illegal, discriminatory and therefore unconstitutional.
He went ahead to declare that the decision by the government of Kenya to collectively repatriate all refugees in Dadaab refugee camp to the frontiers of their country of origin against their will violates the principle of non-refoulment (the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution). as expressed in article 33 of the 1951 UN convention relating to the status of refugees as well as section 18 of the Refugee Act 2006
Judge mativo also said that labeling refugees of Somali origin as terrorists is discriminatory and violates the principle of ‘individual criminality’
“It is not true that refugee camps in the country are being used to harbor criminals as no arrests have been made to prove the same,” ruled justice Mativo.
Kenya National Commission on Human Rights and Kituo Cha Sheria moved to court last year seeking to have the government’s decision to close the Dadaab Refugee Camp and its Department for Refugees nullified.
Amnesty International is an interested party in the case.
At one time, the court summoned the Ps, Karanja Kibicho to appear in person to explain the government position on the matter.
He told the court that the decision had been reached as a measure to protect the country from security threats from Al-Shabaab, who get into the country from neighboring Somalia.
According to the government, the closure of one of the world’s largest refugee camps and repatriation of refugees would be done in a humane manner.
However, the respondents have said that they will appeal the decision by the high court.