PROTECTION PROBLEMS FOR REFUGEES IN NAIROBI
Unsafe Housing or Lack of Housing: Fear, Attacks, Robberies, and Rapes
The first weeks in Nairobi are the most risky for asylum seekers, as they find shelter and situate themselves. Some of the refugees interviewed by Human Rights Watch became targets of violence while sleeping outside UNHCR's offices in Westlands, near a major thoroughfare. Amina P., a girl who had fled the fighting in Somalia in 1994 when she was twelve years old, had been raped repeatedly in the refugee camps78 and was transferred to Nairobi by UNHCR when she contracted tuberculosis:
[In 2001], I started sleeping outside UNHCR because I really needed more help from them. They kept telling me that now I was better I had to go back to the camp. But I could not go back to either camp-those places were not good for me. I slept in front of UNHCR for one month and seventeen days. One night, I had to cross the street to the shops to get some charcoal so I could cook some small food. I left from the last gate of UNHCR and went to the place to buy the charcoal-it was maybe ten yards away.
There were four men standing there and one of them held a knife up to my throat. I tried to fight him off with my hands. He was "hanging" [choking] me. He pushed me down and pulled up my dress. They were all going to rape me-but I refused to open my legs, I kept them together. So, then he took his knife and sliced my thigh, from my thigh to above my knee [a Human Rights Watch researcher viewed the wound, which ran from her left labia down to above the knee on the inside of her left thigh]. They started raping me. I passed out eventually. They left me in the roundabout in the center of the road in front of UNHCR. Some other refugees found me some hours later, but I could not walk. They had to bring a blanket and make a cradle for me and carry me back to UNHCR like that. The next morning they took me to the hospital. They ran tests for HIV and for everything else. I stayed there for sixteen days, just waiting for my wound to heal.79
Other refugees live in fear and at constant risk because of inadequate shelter, and because they have fled without other family members. The failure to identify and better protect these refugees is in direct contravention of UNHCR's own policies and procedures.80 Pauline F. is a sixteen-year-old Rwandan refugee whose mother was killed in 1994 and whose father was abducted. She fled with her sister, who is five years old. Her housing situation in Nairobi made her feel terribly unsafe:
I took a truck to Kenya with my little sister [in February 2002]. I slept outside at the UNHCR compound for one night, then a good samaritan kept me for one week in her house. Then, she told me I had to look for a place to stay. I found a small shelter, where we pay Ksh. 500 per month [U.S.$6], but I cannot pay this yet.
....There are some thieves who terrorize the neighbors, and I am very scared when they come. They have come four times, and I am in my little shelter with a very small child. The last time the thieves came was last Thursday. They cut someone very badly in the head with a panga [machete]. They took that person's television, and made demands for other things. So, they have stolen things from my neighbors but not yet from me, maybe they know I have nothing to give them?
The main thing I am worried about is not those thieves, but the men who live around me, they keep on coming back to me, because anyone can break into our little house and they come and beat on the door and tell me to let them in. They come at night like that-I am very scared. I am afraid of that day and night.81
The insecurity suffered by unaccompanied children and women could be alleviated if UNHCR followed its own suggestion to "ensure, where practical, that women and girls are able to lock their sleeping and washing facilities."82
Finally, even those women and children who are lucky enough to find housing at the UNHCR "secure" accommodation center were fearful about sexual harassment83 and their overall security, especially after the murder of two Rwandan children who had been living there in April 2002, discussed in the summary of this report. Protection problems in the accommodation center for women and children who are without accompanying adult male relatives could be alleviated if UNHCR had the resources to house them separately from men. A young Congolese woman who had found the corpses of the two slain Rwandan children said to a Human Rights Watch researcher,
Since that incident... we are so scared. In that compound they don't let anyone in or out. Someone who can kill kids like that can kill even adults. I am scared.... They should not keep all the people in that same place, they should move people around from place to place. And, they should put women in a separate place.84
Political Targeting by Other Refugees
Complicated ethnic and military alliances that cross borders characterize the conflicts around the Great Lakes region (Rwanda, Burundi and the Democratic Republic of Congo). As a result, refugees in Nairobi often report being threatened, abused, or harassed by other refugees from their own country. For example, Lumumba S., a Banyamulenge refugee who had been very active in negotiating for the rights of his people with the Congolese government felt that several groups of refugees in Nairobi were openly hostile to him. He said:
We have everyone against us. The [ethnic] Hutu are saying we are after them. The genocidaires [Rwandan Hutu extremists responsible for the 1994 Rwandan genocide] are here in Kenya and we are afraid of them. Also, those who are working with [current Rwandan President Paul] Kagame are against us. We have a problem with the Rwandese embassy here in Nairobi. They told me to be careful because [the Rwandans] want to kill the Banyamulenge. There is also graffiti in town against the Banyamulenge, near Kikomba market there is something written on the side of the houses against the Banyamulenge.85
Dawit S., an Ethiopian refugee who had been a student leader in Addis Ababa described the ethnic tensions that had developed in exile between him and Oromo refugees. He said, "in [the place I was living] there were already other Oromo students and they said I bought my status and started harassing me, saying I was against their tribe. They beat me once while accusing me of these things.... That was on August 19, 2001."86
Country of Origin "Security" Agents87
Refugees living in Nairobi report they were targeted by alleged security agents, and occasionally by the Kenyan police, for their activities in their countries of origin. While these accounts are sometimes fabricated or exaggerated by refugees, since it is widely believed that the incidents will help to secure resettlement places abroad, Human Rights Watch found some of these stories very credible, particularly those of Ethiopian refugees. The fact that Ethiopian agents operate in Nairobi is widely known.88 A staff member with an organization working with the refugee community in Nairobi told Human Rights Watch that the "Ethiopian government is active in Nairobi. [Kenyan] police agents are bribed."89 International NGO staff members have been able to trace to the Ethiopian Embassy license plate numbers taken down by refugees who allege that they have been trailed.90 In addition, the actions of such agents have even been publicly linked to murder: one politically motivated killing by Ethiopian security agents in Nairobi received international press attention in 1992.91
Berhanu C.'s story of security agent harassment is indicative of the problems experienced by refugees in Nairobi. Human Rights Watch documented ten other credible accounts of targeting by such agents during the course of our research in Nairobi. Berhanu is an Ethiopian man in his thirties who was involved in the EPRP92 in the 1970s and because of this was arrested and detained in Ethiopia from 1980 to 1984. Upon his release he gave up his political activities and became a teacher, but he found himself suspected of continued work with the EPRP and was again detained for six months and tortured. His chest was severely burned with molten plastic and he was repeatedly beaten. He has large scars on his chest, viewed by a Human Rights Watch researcher, and broken cartilage in his knees resulting from the torture. Seeking to flee the country, Berhanu was arrested at the Kenya/Ethiopia border at Moyale on November 24, 1999 and was en route to Central Government Investigations in Addis Ababa when he managed to escape from the Ethiopian police. Two months later, in early February 2000, he crossed the border into Kenya. He told a Human Rights Watch researcher about the security problems he has experienced since that time:
On June 20, 2000 at night Ethiopian security officers came to my room in Nairobi, on Tenth Street in Eastleigh when I was drinking tea. One of the security officers was one of the ones who held me at Moyale and they were with three Ethiopians. They told me that I should not try to live in Kenya any more. I wrote a letter about this to UNHCR. I was so afraid after this happened that I decided I would sleep during the day and stay awake all night. On September 5, 2000, three other Ethiopian security workers came to my place to attack me. Again, I wrote a letter to UNHCR.93
Berhanu was harassed again on October 30, 2000 when he was visited unexpectedly by three Ethiopian security agents. Berhanu's roommate asked them to leave the room, but before they did, they said, "we are your shadow, you cannot hide from us. One day we will take you to Ethiopia dead or alive." Berhanu also wrote to UNHCR about this incident and a later one on December 15, 2000 when the same agent came to give him "a last warning." He told Human Rights Watch what happened next:
Then, on Sunday January 28, 2001, I went out to walk on Eighth Street [in Eastleigh]. Three Ethiopian security forces came up to me and started shouting at me about who I was and what I was doing there. They put me in the middle of them and started hitting me on many sides. I received a very hard hit on my left eye and ear. Other people were watching what was happening, and they intervened to let me "pull away" [escape] from them, and I was trying to run but the road was muddy and I kept falling down. I fell at least four times. A man pulled up alongside the fighting in a car and shouted out my name, and they wanted to push me into that car, but I got away from that place. My Ethiopian friends advised me not to travel alone, and they took me to Goal where I received medical treatment. I went to UNHCR to tell them my problems, and the security guards at the gate and the reception workers would not let me in. My only solution was to write a letter again in which I said, "save my life from this danger and allow me to enter to your office to tell you my problem. I am waiting your decision outside the fence of UNHCR." I was seen that day for the first time by someone at UNHCR who paid attention, and I was referred to Goal accommodation center on February 1, 2001.
But, even in Goal accommodation center I have been followed. Three times unknown Ethiopians have come to the fence at Goal to give me warnings. This happened on May 30, 2001; June 19, 2001; and July 2, 2001. Each time two men came and told me they were "following me like a shadow." I reported these incidents to Goal. I remain without status or any decision on my case until now.94
In Kakuma camp, which is in the north of Kenya, approximately 700 kilometers from Nairobi, a Human Rights Watch researcher met an Ethiopian refugee who was one of the few who had hoped a camp would be safer for him than Nairobi. He was wrong. He had been subject to several attacks in Kakuma and was now being housed in the UNHCR protection area, behind barbed wire. He originally thought the camp would be safer because his family had already been harassed by Ethiopian agents operating in Nairobi. He told a Human Rights Watch researcher that he had been held in Kenyan police custody, at the behest of Ethiopian agents, from June 23, 1999 until February 1, 2000. He said, "I was held in police custody in Muthangari [police station]. During that time they kidnapped my elder son from Nairobi. It happened in August 2000. People told me later it was Ethiopian spies that took him."95
Kenyan Police Harassment, Violence, and Extortion, and Refusal to Respect UNHCR Documents
In an interview with UNHCR, A Human Rights Watch researcher was told, "The police are predatory. But this is a problem for everyone in Nairobi."96
Police in Nairobi routinely stop refugees and asylum seekers to ask for their national identity cards. Since they do not have these cards, asylum seekers only have their UNHCR-issued appointment slips to show, and recognized refugees can show their UNHCR-issued protection letters97 (also referred to by refugees as their "mandates"98), some of which refer them to camps. Upon inspection of these documents, the police routinely ignore or destroy the documents and either threaten the individual with arrest and detention unless a bribe is paid or bring the individual to the local police station.99 If the first practice is followed, the refugee will often try to pay the bribe to avoid arrest. If the second practice is followed, friends or family must locate the jailed refugee in one of Nairobi's many police stations and attempt to bribe the police to set him or her free.100 Often, refugees described beatings by the police during the arrests.
In slum areas, refugees and Kenyans alike are targeted by the police for harassment and arrest. During a series of interviews with refugees in the Riruta neighborhood of Nairobi, a Human Rights Watch researcher came across a row of corrugated tin rooms populated by Congolese refugees. One door was locked shut. The neighbors explained that one day prior to Human Rights Watch's visit, the Congolese boy who lived in the locked shelter had been arrested by the police. His Kenyan neighbor had also been arrested.101 Refugees told a Human Rights Watch researcher of their attempts to avoid police harassment by limiting their movements, dressing well when they go out, or in one case, carrying their child with them in the hopes that the police would not put a child in the police cells.
Young boys have particular concerns that they will be arrested for being "street boys," who are reviled and abused on a daily basis by Kenyan police. Peter L. told a Human Rights Watch researcher about his strategy for avoiding the police: Peter said, "another thing that worries me is that when I am dirty and my clothes are not clean, the police will see me and think that I am a street boy. I have no soap to wash my clothes and I have to buy water, it costs three shillings (U.S.$0.04) for each twenty liter jerry can." 102
The Kenyan police are notorious not just among asylum seekers or refugees. Transparency International (TI), an NGO dedicated to curbing both international and national corruption, conducted a study of the incidence of bribery in urban Kenya which found that six out of ten urban residents pay bribes to the Kenyan police or are "mistreated or denied service if they do not."103 The Prisons Department was cited as being the most rigidly corrupt institution to deal with in Kenya-in close to seven out of ten interactions with prisons, a refusal to bribe would result in no service.104 Poor people (which would include both Kenyans and refugees) were found to be "significantly more vulnerable" to corruption than others.105
The TI Study also found that, on average, urban residents in Kenya paid Ksh.2,670 (U.S.$34) each month in their interactions with the Kenyan police. This amount may be slightly less than what urban refugees have to pay.106 Refugees interviewed by a Human Rights Watch researcher cited interactions with the police occurring at least on a monthly and sometimes on a weekly basis. In each interaction, Human Rights Watch documented cases in which refugees paid between Ksh.400 (U.S.$5) and Ksh.4,000 (U.S.$51) to the police. UNHCR had documented cases of refugees in Kileleshwa police station who had to pay Ksh.20,000 (U.S.$256) to be released.107
Fikru C., a journalist who fled from Ethiopia to seek asylum in February 2002, told a Human Rights Watch researcher about an interaction he had with the Kenyan police in the Eastleigh neighborhood of Nairobi:
Here in Nairobi, I first stayed with other Ethiopians in Eastleigh. There is terrible and unreported harassment for refugees there, especially from the police. They ask for so many shillings. One day in March they caught me and they tied my hands together. They asked me to pay them Ksh.5,000 [U.S.$64], but I really do not have that kind of money. I was so afraid that if they brought me to court I might be deported to Ethiopia. I showed him my appointment slip, but [the officer] told me, "you can put that in your pocket." I knew he only wanted money. I had no choice, they took me to Pangani Police Station and I had to pay KSh.2,000 [U.S.$26] for my freedom.
I witnessed another incident in which the police arrested four women, one of whom was pregnant, again in March 2002. The police asked each woman for Ksh.5,000 [U.S.$64], but they didn't have that money. They were held while their families tried to raise money for them. The families and friends eventually paid the police Ksh.8,000 [U.S.$102] to free the four women.108
Since bribery is a major revenue producer for police, and refugees are prime targets for arbitrary arrest, NGO staff working in Nairobi commented acerbically about the "competition" amongst officers to be stationed in the slum neighborhoods where refugees live.109 Police are also familiar with the offices that refugees frequent, and stop and arrest refugees on their way to and from UNHCR and NGO offices.
For example, a refugee who had been a university student in Addis Ababa received his appointment slip from UNHCR on January 17, 2002. He told a Human Rights Watch researcher what happened the very same day as he was leaving UNHCR's offices: "The day I received this [UNHCR] letter I was arrested on the road and some Ethiopians gave some money so the police would release me. I had a letter from RCK [the Refugee Consortium of Kenya], but the police do not pay attention to that."110
Yerodin A. is a seventeen-year-old refugee from the DRC. He fled from Beni111 because he feared being forcibly conscripted. He said, "When [the Mai Mai112] come to the village and find young men, the entire family will be victimized and the house will be torched." Yerodin A. fled on January 24 and crossed into Uganda, ultimately reaching Nairobi on January 27, 2002,
On January 29 when we went to UNHCR to register, the police found us on our way back home at about four o'clock pm. They tied our [Yerodin and a young male friend's] shirts together, and wanted to tear up our appointment slips. First, they asked us for a Kenyan I.D., in the absence of this they said they would "tear up our papers and take us to jail at the police station." Each of us had to pay Ksh.1,000 [U.S.$13] to be set free. This took almost all of our money.113
In June 2002, Human Rights Watch was also informed that the police were arresting refugees as they went to and from their initial screening interviews with the Joint Voluntary Agency (JVA), the NGO responsible for initial screening of refugees for the U.S. resettlement program.114 This allegation is especially worrisome, since refugees identified for resettlement are some of the most vulnerable, and are often high-risk security cases.
Those refugees who cannot pay the requisite bribe or who are brought directly to the police station by the police will likely spend some time in jail. UNHCR estimated that there were 2,300 detentions last year, although the senior protection officer admitted that "often UNHCR is not informed when refugees are held in detention."115 During random visits by Human Rights Watch to police stations in Riruta, Eastleigh, Langata, and Industrial Area, police admitted to holding "foreigners" in their jails on a daily basis, and most had several "foreigners" detained on the day of our visit. The detention of asylum seekers and refugees without charge is very common. During the course of our research, Human Rights Watch documented cases in which refugees spent between one night and several weeks in detention without charge.
For example, Caleb M., a refugee who had spent several years in prison in Ethiopia had been arrested multiple times by the Kenyan police. He said:
I cannot even count the number of times I have been arrested. It is probably less than one hundred, but it could be more than fifty. In just one day I was arrested five times. The police give me so many problems. One day I slept in jail at KICC [Kenyatta International Conference Center - a neighborhood] at night. The Kenyan police would not listen to me that I was a refugee, and they saw my mandate was for Kakuma.... He wanted money from me, and he checked my pockets and choked me with his hands around my neck. I slept on the cold floor that night. All the other prisoners forced me to sit in the place where someone had urinated and it smelled terrible in there.
Last February , the police broke my door to get inside my room. They started shouting at me "who are you? Where do you come from?" I said that I am a UNHCR mandate refugee. The officer said, "What is that?" and he started beating me with a stick. My wife started crying when she saw that and he became angry with her for crying and beat her too. He took me into the station after beating us like that, again to KICC jail, which has underground cells. I could not bear to spend another night in a place like that so I paid Ksh.4,000 [U.S.$51] to be set free.116
Kalisa R., a forty-year-old Rwandan refugee, was subjected to a very common form of police mistreatment: the police order the refugee to walk around with them for a while until the refugee becomes either so publicly embarrassed or frustrated that he pays a bribe to be set free. He told a Human Rights Watch researcher what happened:
Last year  in August, in the afternoon, I was on the street coming home. I came across the police and they asked me for my national I.D. card, so I showed them the HCR appointment slip paper. Immediately after... [they] saw the HCR papers, they handcuffed me and asked for Ksh.5,000 [U.S.$64], then it came down to Ksh.3,000 [U.S.$38]. The policeman was walking with me towards the police station, as soon as we were nearing the station, the policeman asked for 500 [U.S.$6]. I said I had absolutely nothing to give him. The policeman said he would tear up my appointment slip. He said, "this paper is not an I.D." When we got to the police station, they put me in jail. They said they would hold me because I did not have a valid I.D. or protection from the HCR, they refused to recognize the HCR appointment slip.
When we arrived at the station, they put my name in the appointment book [most jails at stations have ledger books indicating who is in custody]. They put me in a cell that was approximately four by five feet. There were nine people in the cell with me. All we had for a toilet was a bucket in the corner. It smelled horribly in the cell. They gave us no food or water. The place was so small, the only way to sleep is if people line up sitting with their legs outstretched and their backs against the wall, then maybe one or two can stretch their legs over the others. But the smell was so terrible you could not sleep.
I stayed there overnight, and my wife came in the morning with Ksh.200 [U.S.$3], which she gave to a junior officer and she pled for my release. But the junior officer said he could do nothing without the approval of the senior officer. When she went to him, he demanded Ksh.2,000 [U.S.$26] for my release. My wife paid the Ksh.2,000 [U.S.$26] and they let me go.117
Sylvie O., a woman refugee118 from Burundi who was living in the Eastleigh neighborhood, was traveling on the street with her two children, a boy aged three and a girl aged two. The presence of her children offered no protection from what happened next:
On April 8, 2002 I was arrested by the police during the day. I showed the police my paper and I was with my two children. The police ripped up my paper and they put me in Langata Police Station in Industrial Area. I spent two weeks there and I had to sleep with my children on the floor. They raped me in that prison and beat me over and over.119
The number of refugees and asylum seekers detained in Nairobi is exponentially increased when police conduct "swoops" (a term regularly used in Kenya) of "foreigners" in Nairobi's slums. In a four-hour period in the early morning of May 30, 2002 approximately eight hundred foreigners were arrested amid widespread allegations of police brutality, rape, extortion, and theft.120 The foreigners were held for several days in dismal conditions in an outdoor pen surrounded by barbed wire next to the Kasarani Police Station in Nairobi. The Kenyan government threatened to repatriate some of those caught in the swoop.121
As a result of the May 2002 swoop, the Kenyan government also detained one hundred and forty-five documented refugees, the majority of whom were from the Ethiopian Oromo ethnic group and one-third of whom were children, at the Gigiri Police Station near Nairobi. The refugees were charged with failing to register with the government of Kenya, a statutory violation that was enforced for the first time during the May swoop. The refugees were not able to comply with the statute because there has been no governmental registration service for the refugees since 1991.
The swoops against foreigners in Nairobi are a part of an ongoing public campaign in Kenya to criminalize allegedly unlawfully present non-citizens, including refugees. At the time of the May swoops, a police officer told a U.N. reporter, "refugees are not supposed to be in Nairobi. They should be in the camp; they are not authorized to be on the streets. The law is very clear. Who will take care of their needs if they are not in the refugee camps? That means they will be forced to steal for their survival. I don't like that."122
Similar round-ups occurred in September 1998, when refugees had to surrender their protection letters from UNHCR to police without being given replacement identity documents. More recently, group arrests of thirty to one hundred foreigners occurred in October 2001 and twice during February 2002.
Deportation and the Problem of Refoulement Following Charges Against Refugees
Whether singled out individually or caught up in an immigration swoop, refugees or asylum seekers should be brought before a court twenty-four hours after their arrest, according to Kenyan law. As a result, most are released or bribe their way to freedom in the first days after their detention. Eventually, however, some may find themselves charged with an immigration violation and brought before a magistrate. Asylum seekers and refugees are most often charged with illegal entry under Kenya's Immigration Act. In the course of several interviews with police officers throughout Nairobi, Human Rights Watch learned that this is the most common charge proffered against refugees.123 Police readily admit to charging refugees with this statutory violation, and are even forthcoming about the fact that many have been sent back to their countries of origin without an assessment of whether they would face persecution upon return-a violation of Kenya's non-refoulement obligation under Article 33 of the Refugee Convention, which is the most fundamental principle of international refugee law and is now an accepted principle of customary international law.124 For example, a police officer at Langata Police Station in Nairobi told a Human Rights Watch researcher, "In the past month [May 2002] we have charged five individuals with illegal entry and we have deported them. These individuals came from the Democratic Republic of Congo and Rwanda."125
Without an adequate assessment by the magistrate they appear before, refugees and asylum seekers who are charged with illegal entry are very much at risk of being returned to a place where they will face persecution.126 An illustration of this problem arose during an interview a Human Rights Watch researcher conducted with a detained refugee at Langata Police Station. Abdikarim H., a twenty-three-year-old Somali national, was charged with illegal entry and served six months imprisonment at Industrial Area Prison. He was transferred to Langata Police Station pending his repatriation. During a visit to Langata, Human Rights Watch requested an interview with Abdikarim.127 Abdikarim said, "I arrived in 1991. I came originally from Karisa. I was living in Dadaab before I came to Nairobi." At this point, a police officer interjected, "but he was not in the Dadaab [refugee camp] in Kenya. You know that there is a Dadaab in Somalia too and we plan to repatriate him to that Dadaab." A Human Rights Watch researcher asked Abdikarim, "Where did you get food in the Dadaab you were living in and what were your houses like?"Abdikarim responded, "We lived in houses that were organized into blocks and our food came from UNHCR." He continued:
I don't want to go back to Somalia. I don't have any family left there, and I'm afraid. I came here to Nairobi to look for a job to pay for my mother's medicine. She is still in Dadaab and we cannot afford her medicine. She is very sick. But they found me and arrested me for having no documents. I don't have any documents right now and I am just waiting here for repatriation. It is good for me here [in Langata], they give me food and a place to sleep and medicine and they took me to the hospital when I got sick.128
One week later, purely by chance, a Human Rights Watch researcher met a police officer and Abdikarim H. in the waiting area of UNHCR's Nairobi office. The officer explained that he had been waiting four hours to turn Abdikarim over to UNHCR's custody, as he now realized that he was a refugee, and that he had taken time off of work to bring Abdikarim in to UNHCR.129
Abdikarim's case shows that refugees and asylum seekers are constantly at risk of being returned to their countries of origin if they fall into the hands of the police. The magistrate before whom Abdikarim had appeared simply charged him with illegal entry, gave him six months imprisonment, and ordered him repatriated without ever considering whether he was a genuine refugee. At the same time, his case also shows that it is not necessarily in the interests of the police to arrange for the return of all of these individuals, and that if the proper inquiries into their status are made, refoulement can be avoided.
Another officer in charge of arranging the repatriation of foreigners put the issue into stark economic relief, revealing that in fact refoulement may be more expensive for the Kenyan government. In other words, detaining and repatriating refugees costs money, but the police are compelled to do so by order of the magistrate. An officer at Industrial Area Police Depot explained the bind they are in to a Human Rights Watch researcher,
The Industrial Area Police Depot houses foreigners who are charged in Kibera, KICC or Makedera Law Courts. When the magistrate directs a foreigner to us, we act in accordance with the order. Usually we have a specific amount of time to repatriate them. Our biggest problem is lack of funds for repatriation escorts. Some we can drive to the border, but some must be taken by plane. We lack funds for fuel even to drive them to the border. Sometimes we end up keeping them longer than the order because of lack of funds. But for us that is a big problem because then we can be held in contempt of court.130
In official 2001 statistics obtained from the provincial police of the Nairobi area, the Kenyan government charged 136 individuals with illegal entry during the year. Of those, seventy-five had been properly turned over to UNHCR, and eight were fined and presumably allowed to remain in Kenya. However, thirty-nine individuals were returned to their countries of origin. Thirty-five persons out of this group were fined between Ksh.100 and Ksh.10,000 [U.S.$1.28 - $128] in addition to being sent home. The great majority of those repatriated were Somali nationals-perhaps reflecting the Kenyan government's desire to "see the Somalis repatriate"131-although Rwandans and Congolese were also sent home. Police responsible for the housing and repatriation of these individuals cautioned Human Rights Watch that the centralized collection of statistics was not systematic, implying that many individuals charged, fined and/or repatriated were not counted.132 In addition to the provincial police statistics, UNHCR had official numbers indicating that 164 individuals were repatriated through the Moyale border crossing point with Ethiopia.133 Therefore, the Kenyan government possibly refouled at least 203 refugees in 2001.
Based on Human Rights Watch's interviews with police in Nairobi, officers do not respect UNHCR documents because of the widespread (and misinformed) belief that all of these documents are forged. In addition, there is no mandatory procedure by which police ask non-citizens whether they will face persecution or civil war134 if returned to their home countries. Refugees who appear before magistrates are also not asked this question as a part of standard procedures. Given the countries of origin of the 203 persons Kenya officially admitted to returning during 2001 - Somalia, Ethiopia, Tanzania, Congo, Uganda, and Rwanda - the Kenyan government has likely violated the norm of non-refoulement in these and (given the problem of under-counting) possibly hundreds of other cases.135
Failures to Protect Refugees in Nairobi
The Kenyan government is failing to guarantee to refugees in Nairobi, regardless of their legal status, their most basic human rights. These include: the right to liberty and not to be arbitrarily detained, the right to security of person including protection from torture and other mistreatment, and the right to freedom of movement.136 It is also failing to take adequate action to bring to justice the perpetrators of human rights abuses against refugees, even when these individuals are the agents of another government.137 In addition, Kenya must allow refugees who have had their rights abused the same access as nationals to the police or to seek redress in the courts.138 While the police and security personnel are clearly preoccupied with Kenya's other serious law and order problems, they are nevertheless failing to respond adequately or appropriately to the security problems of refugees.
For its part, UNHCR is failing to identify refugees who are at risk when they first register at the office, in direct contravention of its own policies on refugee women and children, which require immediate identification139 and attention to such individuals' needs. For example, UNHCR should "promote safe living arrangements for refugee children and their families,"140 and "where necessary, organize special accommodation for individuals at particular risk, such as unaccompanied young women, families headed by women, or abused children."141 In addition, refugees who have experienced violence and insecurity are unable to access UNHCR to report on their abuse, and when they do UNHCR often does not adequately track complaints or intervene with local police. Even local human rights groups experience problems reaching UNHCR when they try to draw the agency's attention to these problems.
The failure to identify at-risk groups or individuals or to respond to security cases could be improved if UNHCR had the resources or the assistance of an implementing partner to screen individuals in the registration sheds and to receive and process reports about security incidents. In addition, the agency could periodically deploy staff out to the areas where refugees live to learn about security incidents and at-risk refugees and to monitor their situation.142
78 See "Seeking Refuge, Finding Terror: The Widespread Rape of Somali Women Refugees in North Eastern Kenya," Africa Watch (now Human Rights Watch/Africa), October 1993, vol. 5, no. 13.
79 Human Rights Watch interview with refugee, Nairobi, Kenya, April 5, 2002.
80 See UNHCR, Guidelines on the Protection of Refugee Women, 1991, p. 29 (noting that "unaccompanied women and girls are particularly at risk of sexual and physical abuse.").
81 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
82 See UNHCR, Guidelines on Prevention and Response to Sexual Violence Against Refugees, 1995, p. 13.
83 One Ethiopian refugee woman told a Human Rights Watch researcher, "at the accommodation center I have also had problems. One man asked me for sex. I refused him and he said I wasn't a woman because I refused him. I was very upset at him at that time." Human Rights Watch interview with refugee, Nairobi, Kenya, April 22, 2002.
84 Human Rights Watch interview, Nairobi, Kenya, April 22, 2002. This refugee woman's suggestion is completely in line with UNHCR's own policies. See UNHCR, Guidelines on the Protection of Refugee Women, 1991, p. 33 (noting that "unaccompanied women may want to establish a separate living area for themselves.").
85 Human Rights Watch interview with refugee, Nairobi, Kenya, April 21, 2002.
86 Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.
87 The terms "country of origin agents" or "security agents" are used in this report to designate individuals from refugees' countries of origin who are alleged to trail, harass, beat, detain, and otherwise intimidate refugees. By using these terms, Human Rights Watch is not indicating that these individuals are in fact employed by the official security agencies of refugees' countries of origin, although some evidence supports that conclusion.
88 UNHCR reported to Human Rights Watch that the agency was aware of six abductions of refugees from Nairobi in 2001, two of whom were Oromo refugees. Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 2, 2002.
89 Human Rights Watch interview with NGO staff member, Nairobi, Kenya, April 2, 2002.
90 Human Rights Watch interview with representative of international NGO, Nairobi, Kenya, April 4, 2002.
91 See "Obituary for Colonel Jatani Ali," The Daily Nation, July 3, 2001. Jatani Ali was an Oromo liberation leader who was killed by TPLF/EPRDF agents in Nairobi on July 2, 1992.
92 The Ethiopian People's Revolutionary Party is an urban-based movement that was formed in April 1972 to oppose the Derg and their repressive rule. Since the fall of the Derg members of the EPRP have continued to be persecuted by the ruling authorities.
93 Human Rights Watch interview with refugee, Nairobi, Kenya, April 5, 2002.
94 Human Rights Watch interview with refugee, Nairobi, Kenya, April 5, 2002.
95 Human Rights Watch interview with refugee, Kakuma Refuge Camp, Kenya, April 23, 2002. As of April 23, this refugee's son was still missing.
96 Human Rights Watch interview with UNHCR official, Kampala, Uganda, April 18, 2002.
97 See description of the UNHCR protection letters in text accompanying note 172, below.
98 See description of "mandate letters," at note 172, below.
99 As of September 2002, UNHCR and the government of Kenya had agreed in principle to issue joint documents to refugees. However, when a Human Rights Watch researcher asked officials from the government of Kenya when these documents would be issued, she was told "in due course." Human Rights Watch interview with representatives of the government of Kenya, Geneva, Switzerland, September 27, 2002.
100 As of September 2002, UNHCR informed Human Rights Watch that "important monitoring measures have been taken at police station levels to clarify the situation of potential refugees being arrested and ensure their early release." Written comments from UNHCR Branch Office Nairobi, October 8, 2002.
101 Human Rights Watch interview with refugee, Nairobi, Kenya, April 17, 2002.
102 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
103 See Transparency International, Corruption in Kenya: Findings of an Urban Bribery Survey, 2001, p. 10.
105 Ibid, p. 5.
106 The authors of the TI Study were careful to point out that their respondents were better off and better educated than the urban population as a whole. Therefore, they note, "inference from this sample would understate bribery incidences in the general population." Ibid., p. 2.
107 Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 18, 2002.
108 Human Rights Watch interview with refugee, Nairobi, Kenya, April 5, 2002.
109 Human Rights Watch interview with international NGO staff member, Nairobi, Kenya, April 6, 2002.
110 Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.
111 Beni is located in the northeast of the DRC, in a Ugandan-backed rebel-controlled part of the country about seventy kilometers from the border with Uganda. Mai-Mai and Ugandan People's Defense Force (UPDF) forces have been fighting in this region. On August 31, 2001, Congolese civilians in Beni began attacking the UPDF forces stationed there in an apparent attempt to drive them from the country. A Human Rights Watch report also describes an attack carried out by the Mai-Mai in Beni on November 14, 1999, resulting in the murder of a UPDF colonel and his bodyguards. See "Uganda in Eastern DRC: Fueling Political and Ethnic Strife," Human Rights Watch/ Africa, Vol. 12, No. 2(A), March 2001.
112 One of the main armed groups operating mostly in North and South Kivu in the DRC is the Mai-Mai. This generic name applies to any one of a multitude of irregular forces fighting against what they perceive to be foreign occupiers of their traditional domain and their national territory. Many of the groups follow certain rituals thought to protect them in battle. They typically enter into or repudiate alliances with outside actors according to the priorities of their local agenda. Mai-Mai are generally thought to cooperate with local people, although they can also prey upon them if they fail to support the ends of the Mai-Mai. See Uganda in Eastern DRC: Fueling Political and Ethnic Strife, Human Rights Watch/Africa, Vol. 12, No. 2(A), March 2001; Human Rights Watch/Africa, The War Within the War: Sexual Violence Against Women and Girls in Eastern Congo, June 20, 2002.
113 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
114 Human Rights Watch interview with international NGO staff member, New York, June 3, 2002.
115 Human Rights Watch interview with UNHCR Officer, Nairobi, Kenya, April 2, 2002.
116 Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.
117 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
118 UNHCR is well aware of the problems that refugee women can face when they are stopped by police. See UNHCR, Guidelines on the Protection of Refugee Women, 1991, p. 31.
119 Human Rights Watch interview with refugee, Nairobi, Kenya, April 18, 2002. Selam D., another Ethiopian woman refugee living in the Eastleigh neighborhood told Human Rights Watch, "Every time we go out of the house they arrest us. They take us to prison, or they might find us at home. They will ask us for money, maybe between Ksh.400 [U.S.$5] and Ksh.1,000 [U.S.$13]. If we do not pay with money they will rape us either at home, or they take us to the station and rape us. We are always at risk of being arrested or raped. The police do not consider our mandate letters. Anyway, mine is for the camp. There is nothing in the camp. There is no food or water and it is very hot. With children it is very difficult to live there. We have decided to stay here." Human Rights Watch interview, Nairobi, Kenya, April 18, 2002. Incidents of sexual violence against refugee women committed by the Kenyan police or by fellow prisoners when the women were in police custody are serious violations of these women's human rights and are contrary to Kenya's obligation as a member of UNHCR's ExCom to adopt concrete measures to prevent sexual violence by developing and implementing "programmes aimed at promoting respect by law enforcement officers... of the right of every individual... to protection from sexual violence." UNHCR, "Refugee Protection and Sexual Violence," ExCom Conclusion No. 73, 1994.
120 See "Eight Hundred Foreigners Held In Swoop," Daily Nation, (Nairobi, Kenya) May 31, 2002.
122 See "Police Say Crackdown on Illegal Aliens to Continue," IRIN Reports, June 4, 2002.
123 Human Rights Watch interviews with three Kenyan police officers, Nairobi, Kenya, April 18, 2002.
124 See note 15 above for a description of the customary law norm of non-refoulement.
125 Human Rights Watch interview with Kenyan police officer, Nairobi, Kenya, April 18, 2002.
126 Representatives of the government of Kenya told a Human Rights Watch researcher that individuals have seven days to declare their interest in seeking asylum to "any administrative unit or to the Office of Home Affairs," and that it is those who do not so declare who can be charged with illegal entry. However, when the researcher explained that none of the refugees interviewed were aware of this reporting mechanism, and that they reported to UNHCR instead, Kenyan government representatives agreed that they have asked UNHCR to perform the status determination function and that asylum seekers may also report to UNHCR. Human Rights Watch interview with representatives of the government of Kenya, Geneva, Switzerland, September 27, 2002.
127 Human Rights Watch interview with officers at Langata Police Station, Nairobi, Kenya, April 18, 2002. This interview was conducted in the presence of two police officers. When a confidential room was requested, Human Rights Watch was informed that confidential interviews can only be requested when there is a complaint of police misconduct, which has been examined and endorsed by a magistrate.
128 Human Rights Watch interview with refugee, Nairobi, Kenya, April 18, 2002.
129 Human Rights Watch interview with Kenyan police officer, Nairobi, Kenya, April 24, 2002.
130 Human Rights Watch interview with Kenyan police officer, Nairobi, Kenya, April 18, 2002.
131 Human Rights Watch interview with UNHCR officer, Nairobi, Kenya, April 2, 2002.
132 Human Rights Watch interview with Kenyan police officer, Nairobi, Kenya, April 18, 2002.
133 Human Rights Watch interview with UNHCR officers, Nairobi, Kenya, April 18, 2002.
134 See notes 16 and 18, above, explaining Kenya's obligations under the OAU Convention and prima facie refugee status.
135 In addition, Kenya reportedly refouled 3,000 Somali refugees after Kenyan police, "beat up the refugees and then forced them to return to Somalia." See "Refugees Forcibly Returned," IRIN News, July 18, 2002.
136 See ICCPR Articles 7, 9, and 12, respectively. See also "Personal Security of Refugees," ExCom Conclusion No. 72, 1993.
137 The requirement to "ensure" human rights, set forth in Article 2 of the ICCPR, means that governments cannot turn a blind eye to human rights abuses committed in their territory by other actors. See e.g. Human Rights Committee, General Comment No. 2(13) and 3(13), UN Doc. A/36/40 (1981). In addition, government law enforcement officials may not acquiesce in serious abuses committed by other actors. For example, the Convention Against Torture applies to torture inflicted by or "with the consent or acquiescence of a public official or other person acting in an official capacity." See CAT, Article 1(1) December 10, 1984 (emphasis added).
138 See Refugee Convention, Article 16 (stating that "a refugee shall enjoy... the same treatment as a national in matters pertaining to access to the courts.").
139 See e.g. UNHCR, Guidelines on Prevention and Response to Sexual Violence Against Refugees, 1995 p. 15 (requiring that UNHCR should "identify individuals or groups who may be particularly vulnerable to violence, e.g. lone female heads of household with disabled family members, or women who are economically successful, and develop appropriate strategies to address their particular protection and assistance problems."); UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, 1997, p. 3 (requiring that "identification of a child as being unaccompanied should be done immediately upon the arrival of the child at ports of entry."); UNHCR, Guidelines on the Protection of Refugee Women, 1991, p. 15 ("early assessment of protection issues affecting refugee women is crucial....").
140 See UNHCR, Guidelines on Refugee Children, 1994, at 83.
142 In fact, this is required by UNHCR's own policies. The agency's Guidelines on Refugee Children insist that the office "must act" to "strengthen UNHCR's presence in locations where the physical safety and liberty of refugee children is at risk." See UNHCR, Guidelines on Refugee Children, 1994 p. 81.