Last year, the Kenyan government announced that it would close Dadaab refugee camp, repatriate Somali refugees, and disband the Department of Refugees. On February 9, 2017, a decision of the High Court in Nairobi invalidated the government’s planned course of action. The court held that return of Somali refugees would violate the 1951 Refugee Convention’s norm of non-refoulement and constitute discrimination prohibited by the Kenyan Constitution. The failure to consider individual cases under prevailing law was deemed to violate the Kenyan Fair Administrative Action Act. Further, the court held that the government lacked authority to close the Department of Refugees, which would require legislation enacted by the Parliament.
Two comments may be in order. First, despite widespread violation of rights guaranteed by the Refugee Convention, litigation is rarely brought to enforce those rights. The High Court decision shows that refugee rights can be judicially enforceable. Perhaps the time is ripe for refugee advocates and human rights lawyers to develop a transnational litigation strategy to promote refugees’ rights—most particularly, the right to work, the right to an education, and freedom of movement within hosting states. Of course, courts in some states will not be open to such lawsuits, but that doesn’t mean that they shouldn’t be brought in other states where litigation would be possible.
Second, the High Court’s decision provides interesting parallels to cases in the United States that have put on hold President Trump’s Executive Orders barring visas to persons from seven predominantly Muslim countries. In the Kenya case, the government argued that the orders were justified on grounds of national security and were beyond the reach of judicial review. The High Court rejected the claim of non-reviewability:
At the outset I must point out that I do not agree with the submission that it is not for the court to supervise administrative arrangements of institutions. . . . Our Constitution makers in their wisdom thought that no fetters should be placed on the right of an aggrieved party to seek relief from this court.
It also noted the lack of evidence offered in support of the government’s claims (which led the court to conclude that the government’s actions violated proportionality):
It is alleged that the refugees are a threat to public security and that the refugee camps have become breeding grounds for criminal activities. No single arrest or conviction has been cited nor has it been established why a blanket condemnation should be applied to all refugees nor is it clear why the government with its capable and mighty state machinery has not been able to identify any refugees involved in crime and prosecute them instead of mounting a blanket condemnation at the risk of punishing minor children, women and innocent persons.
It is a welcome development that Kenyan and U.S. courts have rejected broad assertions by governments that harsh measures against refugees are non-reviewable. But these lower court decisions are, of course, not the last word. The Kenyan case can now be appealed to the Court of Appeal and ultimately the Kenyan Supreme Court. And President Trump has said that his administration is writing new orders that it believes will pass judicial scrutiny.