BACKGROUND: REFUGEES LIVING IN NAIROBI AND KAMPALA

In Kenya and Uganda tens of thousands of asylum seekers flock to urban centers like Nairobi and Kampala when fleeing persecution or conflict in neighboring countries. Magnets of relative stability in a sub-region that is rife with conflict, repression, and insecurity, Kenya and Uganda host refugees who have fled from Burundi, the Democratic Republic of Congo (DRC), Eritrea, Ethiopia, Rwanda, Somalia, and Sudan. Many of these people have been living in Kenya or Uganda as refugees for over a decade. In 2001 the Ugandan government estimated that as many as 50,000⁴ of the 184,000 refugees⁵ hosted by Uganda were living in Kampala. UNHCR, the main U.N. agency charged with providing protection and assistance to refugees, reported that there were 218,500 refugees living in Kenya during 2001,⁶ of whom as many as 60,000 were estimated to be in Nairobi.⁷

Although their numbers are significant, refugees in the two capital cities are largely unseen and forgotten by governments and UN policy-makers alike. Because of the policies of host governments and UNHCR, these refugees live a precarious existence, frequently subject to the abuse of their most basic rights.

Due to capacity and security concerns, as well as growing xenophobia, countries like Kenya and Uganda are requiring the majority of refugees arriving in their territories to live confined in camps located in remote areas. The presence of combatants or criminal elements among refugee populations has become a legitimate security concern for governments. However, refugees are an easy scapegoat, and around the world they are often indiscriminately accused of being major causes of unemployment, insecurity, and a source of crime and even terrorism. In addition, as a result of the preference in some countries for confining refugees to camps, those who find themselves in urban areas of those countries are being denied access to the protection and assistance for which they are eligible, and are easy targets for police harassment and extortion.

Government officials even go so far as to deny the very existence of refugees in urban centers. For example, when a Human Rights Watch researcher spoke with a senior official of the Kenyan Office of Home Affairs in an attempt to get an interview regarding human rights abuses of urban refugees in Nairobi, she was told "there are no refugees in Nairobi."⁸

Asylum seekers come to Nairobi and Kampala in a variety of ways. They generally cannot plan their travel in advance, so they cobble together whatever means of transport they can secure-often walking long distances and getting rides where they can. They beg and bargain for transport with commercial truck drivers who have the city markets as their destination. Those with money purchase tickets on public buses (or even airplanes). They are rarely able to dictate their itineraries or routes by which they hope to flee to safety, and can spend days or weeks on the road. Frequently, they are dependent on the goodwill-and sometimes the courage and compassion-of those they meet en route who choose to help them cross borders. For example, Abdu T. was eighteen years old in 1995 when he was captured by the Sudan People's Liberation Army (SPLA) and forced to work as a laborer in southern Sudan. For Abdu, the moment he found a ride to Kampala was the moment he was able to escape from the SPLA. Needless to say, he never thought about asking to go to a refugee camp; he went wherever his driver was headed.

[The SPLA] made me work with the relief trucks, to unload supplies.... I saw I had a chance to get away when the soldiers were busy with their new supplies. I spoke quietly with the driver [of one of the relief trucks] and he pulled me into his cab and covered me with the plastic seat. He drove with me like that all night. Eventually we reached Kampala.⁹

Other refugees are drawn to Nairobi or Kampala after experiencing the hardships of refugee camps. One of the major reasons why refugees in Kenya and Uganda make their way to the capital cities is that refugee camps are for the most part located in desolate and unsafe areas without adequate security or assistance. Life in a refugee camp in Kenya or Uganda is grueling. Refugees often face armed attacks or are subject to inter-ethnic tensions or discrimination, not to mention inadequate humanitarian assistance, medical care and educational opportunities. Only a very few are given permission to leave by UNHCR or the camp authorities. As a result, refugees simply slip out of the camps and make their way to the city.

When asylum seekers or refugees first arrive in Nairobi or Kampala, finding a safe place to sleep is one of the first priorities. Almost everyone manages to learn which neighborhood is inhabited by refugees from their home country, and this is where they head-usually on foot. Sometimes individuals or families are lucky to find other refugees willing to take them in. Or, those with money may spend the first days in an informal rooms-only hotel. However, most come with very little money and they may have to spend their first nights sleeping on the streets or outside police stations or the offices of UNHCR, NGOs, or faith-based groups.

While no government is obligated to allow every refugee in its territory to live wherever she chooses, many refugees in Nairobi and Kampala have compelling reasons for remaining in urban centers, notwithstanding the tough conditions they encounter there. Often refugees with medical problems never consider going to a camp, as they want to live close to hospitals and to have access to medicines only available in the city. For those with security concerns, the city is a better place to remain anonymous than the controlled environment of a camp. Other refugees are fearful of the dismal conditions in the camps and generalized insecurity in the areas where the camps are located. Still others have individual reasons for fearing the camps because their ethnicity or previous political or religious activities, or those of family members, make them possible targets for ongoing persecution.

During the course of visits throughout the poorer neighborhoods of Kampala and Nairobi, Human Rights Watch witnessed the adversity asylum seekers and refugees confront in the urban environment. They face daily hardships that are easy to identify, but are routinely ignored by the authorities concerned. In essence, they are being punished by the national government and UNHCR for their decision to remain in an urban setting. Little effort is being made to improve their conditions or address their plight, perhaps as a "push" factor to force them back to the confines of a refugee camp.

UNHCR cooperates with the camp confinement policies of governments. For political and practical reasons, the agency is fearful of offending the governments concerned and wishes to minimize urban programs, which are assumed to be more complex and costly to run than camp-based assistance. Although it offers some help, in general urban refugees in need of protection are let down by what should be their main advocate and defender.

UNHCR's 1997 Policy on Refugees in Urban Areas is in desperate need of revision. The policy does not start from the simple premise that urban refugees are refugees living in any one of the world's cities, then go on to consider what specific protection and assistance measures they should be afforded. Instead, the policy casts urban refugees in a skeptical and wholly unwelcoming light: They are viewed as people who overburden UNHCR's assistance programs, who move "irregularly," and who can be unreasonably demanding and even violent. The policy message is clear - many urban refugees are people who should not be in the city and whom UNHCR should not help. By delegitimizing their presence in urban centers, UNHCR itself is pushing these people back to camps where their lives are endlessly on hold and often at risk. Such policies appear particularly misguided in the face of the large numbers of urban refugees worldwide and the serious problems affecting them.

This report will examine abuses of the rights of refugees living in urban areas, measured against the obligations and policies of the key actors responsible. For refugees living in Nairobi and Kampala, the most important actors are the host governments of Kenya and Uganda, donor governments, governments with resettlement programs, and UNHCR. Specific responsibilities and policies will be addressed when individual cases of human rights abuse are examined later in this report. However, the general responsibilities of these key actors can be described in the following manner:

Host governments, such as Kenya and Uganda, are responsible¹⁰ for preventing and punishing human rights abuses committed against all people within their territory - including asylum seekers and refugees.¹¹ Host governments have the following general responsibilities towards refugees:

· All parties to the 1951 Geneva Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the Refugee Convention),¹² such as Kenya and Uganda, are obligated to recognize refugees¹³ under the Convention's definition,¹⁴ and to ensure a series of rights for refugees meeting that definition.

· Their most important obligation is not to return refugees to a place where their lives or freedom are under threat. Article 33 of the Refugee Convention states this obligation, which is the most fundamental principle of international refugee law and is now an accepted principle of customary international law.¹⁵

· Under Article 35 of the Refugee Convention, governments are required to cooperate with UNHCR, particularly in its supervisory function.

· Kenya and Uganda are both parties to the 1969 OAU Convention Governing the Specific Aspects of Refugee Protection in Africa (the OAU Refugee Convention),¹⁶ which enlarges the refugee definition to include people compelled to seek refuge "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of [the] country of origin."¹⁷ Both Kenya and Uganda have implemented their obligations under the OAU Refugee Convention by affording prima facie¹⁸ status to all refugees fleeing Sudan and Somalia, as well as to some fleeing Ethiopia and the DRC.

· In addition, Kenya and Uganda are obligated to prevent and punish abuses of the human rights provided for in (among other treaties): the International Covenant on Civil and Political Rights (ICCPR),¹⁹ the Convention Against Torture (CAT),²⁰ the Convention on the Rights of the Child (CRC),²¹ and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).²²

Donor and resettlement governments also have responsibilities to protect and assist refugees located in developing countries such as Kenya and Uganda:

· When donor governments adequately fund the refugee programs of host governments such as Kenya or Uganda, or agencies such as UNHCR or NGOs, they are fulfilling their international cooperation obligation. The Preamble to the Refugee Convention underlines the "unduly heavy burdens" that sheltering refugees may place on certain countries, and states "that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation." 

· Numerous Conclusions of UNHCR's Executive Committee (ExCom)²³ also reiterate the need for international protection responsibility sharing,²⁴ particularly to assist host countries in coping with large refugee influxes.²⁵ 

· Governments are also playing a critical protection and responsibility function when they agree to take in, or "resettle" refugees. On several occasions UNHCR's ExCom has emphasized that "[a]ctions with a view to burden-sharing should be directed towards facilitating. . . resettlement possibilities in third countries."²⁶

UNHCR: Although primary responsibility resides with governments, when they fail to protect refugees, the U.N. General Assembly has entrusted UNHCR with "providing international protection. . . to refugees," and with "seek[ing] permanent solutions for the problem of refugees by assisting governments."²⁷ UNHCR has promulgated several important policies and guidelines that give detailed guidance on how the agency should perform these functions. While not legally binding, states are also required to follow these guidelines as part of their commitment to cooperate with UNHCR in the exercise of its functions under Article 35 of the Refugee Convention and as member states of UNHCR's ExCom. The policies most relevant to this situation include the following:

· UNHCR's Policy on Refugees in Urban Areas²⁸ (Urban Refugee Policy) provides insight into the agency's own perception of its responsibilities for urban refugees. This policy is critiqued in this report.

· UNHCR's involvement in status determinations for asylum seekers is governed by the standards it sets in the Handbook on Procedures and Criteria for Determining Refugee Status,²⁹ which is founded in international law since it is based on the conclusions of UNHCR's ExCom.

· The agency's role in camp settings is governed by its Handbook for Emergencies,³⁰ which gives detailed guidelines for setting up and administering assistance and protection in refugee camps.

· The agency's obligations toward refugee women and children are detailed in its Guidelines on Protection and Care of Refugee Children (Guidelines on Refugee Children),³¹ Guidelines on the Protection of Refugee Women,³² Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (Guidelines on Unaccompanied Children),³³ and Guidelines on Prevention and Response to Sexual Violence Against Refugees (Guidelines on Sexual Violence).³⁴

· UNHCR's primary role with regard to refugee resettlement is to identify refugees in need of resettlement according to detailed procedures and criteria established in its Resettlement Handbook. ³⁵

Finally, much of this report refers to the responsibilities and sometimes failures of governments and UNHCR to "protect" refugees. Host governments' responsibilities for functional aspects of refugee protection include inter alia: establishing fair and efficient status determinations to ensure refugees are identified and granted protection,³⁶ incorporating refugee rights and protections into national legislation,³⁷ issuing identity documents,³⁸ "abid[ing] by [governments'] international obligations to protect the physical security of refugees and asylum-seekers and. . . tak[ing] measures to ensure that [sexual and other attacks on refugees] cease immediately,"³⁹ and by being "able to deter, detect, and redress instances of physical and sexual abuse as well as other protection concerns at the earliest possible moment."⁴⁰ Kenya and Uganda are sometimes failing to perform these necessary protection functions.

It is impossible to describe all of the daily activities that comprise UNHCR's performance of its protection function. Generally, "protection activity revolves around ensuring that refugees and others in need of international protection are recognized and granted asylum, and that their basic human rights are respected in accordance with international standards."⁴¹ In Kenya and Uganda this implies a wide range of functions that UNHCR is performing, such as intervening with governments or police to stop violating the rights of refugees and asylum seekers, lobbying the host government to provide adequate documentation to refugees, housing refugees in UNHCR-run secure accommodation, or referring some individual refugees with security risks to one of several governments who will consider them for resettlement. It also encompasses some functions that UNHCR, because of insufficient resources and ineffective program planning, is under-performing or not performing at all.

4 Human Rights Watch interview with UNHCR official (quoting Ugandan government), Kampala, April 8, 2002.

5 See UNHCR, Uganda Annual Statistical Report, February 2002. Of the 184,000 refugees living in Uganda, 158,000 were Sudanese, 17,000 were Rwandan, and close to 8,000 were Congolese. The remainder came from other countries in Africa.

6 See UNHCR, Kenya Annual Statistical Report, Table III, February 2002. Of the refugees living in Kenya, 137,000 were Somali and 55,000 were Sudanese, and the remainder came from elsewhere in Africa.

7 Human Rights Watch interview with UNHCR Official, Nairobi, April 3, 2002.

8 Human Rights Watch interview with Kenyan government official in the Ministry of Home Affairs, Nairobi, April 22, 2002.

9 Human Rights Watch interview with refugee, Kampala, Uganda, April 13, 2002.

10 State responsibility under international law is linked to each state's sovereign right to exercise its jurisdiction. See e.g. The Case of the S.S. Lotus, P.C.I.J. Ser. A. No. 10, 1927.

11 See e.g. Mavrommatis Palestine Concessions, P.C.I.J. Ser. A. No. 2, 1924.

12 Convention Relating to the Status of Refugees, 189 UNTS 150, 1951, entered into force April 22, 1954. In 1967 a Protocol was adopted to extend the Convention temporally and geographically. Protocol Relating to the Status of Refugees, 19 UST 6223, 606 UNTS 267, 1967, entered into force October 4, 1967.

13 See e.g. ExCom General Conclusion on International Protection No. 85, 1998, para (d). See note 23, below, for a description of ExCom.

14 Article 1(A) of the Refugee Convention defines a refugee as a person who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, or membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

15 The customary international law norm of non-refoulement protects refugees from being returned to a place where their lives or freedom are under threat. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That non-refoulement is a norm of international customary law is well-established. See e.g. "Problems of Extradition Affecting Refugees," ExCom Conclusion No. 17, 1980; ExCom General Conclusion on International Protection, 1982; Encyclopedia of Public International Law, Vol. 8, p. 456. UNHCR's ExCom stated that non-refoulement was acquiring the character of a peremptory norm of international law, that is, a legal standard from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. See ExCom General Conclusion on International Protection No. 25, 1982. See note 23, below, for a description of ExCom.

16 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 U.N.T.S. 14691, 1969, entered into force June 20, 1974.

17 OAU Refugee Convention, Article I.

18 Throughout the world, there are many situations in which refugees have fled conditions of generalized insecurity and conflict. When refugees flee in large numbers to neighboring countries, particularly in less developed regions of the world, it is not usually possible to ascertain whether every person involved in the influx actually meets the criteria for refugee status. Low-income countries frequently do not have the logistical, administrative, or financial capacity to undertake individual status determinations. Instead, there is a general assumption that when conditions are objectively dangerous in a country of origin, refugees are recognized on a prima facie basis (i.e. without the need for further proof), and are afforded protection accordingly. See e.g. "Protection of Asylum-Seekers in Situations of Large-Scale Influx," ExCom Conclusion No. 22, 1981 (noting that persons who "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country" are asylum-seekers who must be "fully protected," and "the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed.").

19 International Covenant on Civil and Political Rights, GA Res. 2200 A(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, p. 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, 1966, entered into force March 23, 1976.

20 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, p. 197, U.N. Doc. E/CN.4/1984/72, Annex, 1984, entered into force June 26, 1987.

21 Convention on the Rights of the Child, G.A. Res. 44/25, 44 UN GAOR, Supp. No. 49, U.N. Doc. A/44/49, 1989, entered into force September 2, 1990.

22 Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. Doc. A/34/46, 1979.

23 The Executive Committee of the High Commissioner's Program ("ExCom") is UNHCR's governing body. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law and ExCom member states are obliged to abide by them. They are adopted by consensus by the ExCom member states, are broadly representative of the views of the international community, and carry persuasive authority.

24 See e.g. ExCom Conclusion No. 67 (1991), No. 80 (1996), No. 85 (1998).

25 See e.g. ExCom Conclusion No. 15 (1979), No. 22 (1981), No. 61 (1990), No. 85 (1998), No. 89 (2000).

26 See "Protection of Asylum-Seekers in Situations of Large Scale Influx," ExCom Conclusion No. 22, 1981, para. 3. See also ExCom General Conclusion on International Protection No. 79 (1996), ExCom General Conclusion on International Protection No. 85 (1998). In addition, as one authoritative commentary on the Travaux Préparatoires to the Refugee Convention has noted, "the Preamble, by referring to the international nature of the refugee problems which has, inter alia, been affirmed in General Assembly Resolution 6(I) of February 12, 1946, and the need of international cooperation, proclaims the principle of burden-sharing.... It is clear from the debate that not only international cooperation in the field of protection but also in the field of assistance was meant." See The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis, Cambridge International Documents Series, Vol. 7, The Refugee Convention, 1995.

27 Statute of the Office of the United Nations High Commissioner for Refugees, GA Res. 428(V), December 14, 1950.

28 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997.

29 UNHCR, Handbook On Procedures And Criteria For Determining Refugee Status, UN Doc. HCR/1P/4/Eng/REV.2, 1979, (edited 1992). The Handbook on Procedures and Criteria for Determining Refugee Status was prepared at the request of states members of UNHCR's ExCom for the guidance of governments. See Guy Goodwin-Gill, The Refugee in International Law, 1996, p. 34. The Handbook is an authoritative interpretative guide and is treated as such by governments. For example, the U.S. Supreme Court has found the Handbook's guidance "significant." See INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) (stating that the Handbook "provides significant guidance in construing the Protocol, to which Congress sought to conform.... and has been widely considered useful in giving content to the obligations that the Protocol establishes.").

30 See UNHCR, Handbook for Emergencies, January 2000.

31 See UNHCR Guidelines on Refugee Children, 2001.

32 See UNHCR, Guidelines on the Protection of Refugee Women, July 1991.

33 See UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997.

34 See UNHCR, Guidelines on Prevention and Response to Sexual Violence Against Refugees,1995.

35 See UNHCR, Resettlement Handbook, Chapter 4, revised 1998. Since October 1995, UNHCR, resettlement governments and NGOs have gathered for annual consultations on resettlement at the Annual Tripartite Consultations on Resettlement (ATC). Under the auspices of the ATC, UNHCR developed its Resettlement Handbook in July 1997, which is used by UNHCR field offices and governments involved in the resettlement process.

36 See e.g. ExCom General Conclusion on International Protection No. 71, 1993, para. (i).

37 See e.g. ExCom General Conclusion on International Protection No. 81, 1997, para. (e).

38 See e.g. "Identity Documents for Refugees" ExCom Conclusion No. 35, 1984.

39 See ExCom General Conclusion on International Protection No. 79, 1996, para. (k).

40 See "Refugee Women and International Protection," ExCom Conclusion No. 64, 1990, para. (a)v.

41 See "UNHCR's Protection Mandate," UNHCR 2002 Global Appeal, p. 21.