REFUGEE STATUS DETERMINATION IN KENYA
Kenya, like every state Party to the Refugee Convention and the OAU Refugee Convention, is bound to uphold both treaties. Governments usually accomplish this task by setting up a domestic legal framework-such as domestic legislation-that implements their treaty obligations. Kenya has some law that is applicable to asylum seekers and refugees, but nothing that fully implements its treaty obligations. And, since 1991 Kenya has failed to fully implement the domestic laws that do exist-except for their most restrictive aspects.
Kenya's Immigration Act applies to all non-citizens, including refugees. The Act provides that all non-citizens who enter Kenya without a valid entry permit or pass are unlawfully present and subject to arrest and detention by immigration officers.143 The Act describes a class of entry permit for individuals generally fulfilling the Refugee Convention definition (though not the OAU Refugee Convention definition)144 of a refugee:
A person who is a refugee, that is to say, is, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unwilling to avail himself of the protection of the country of his nationality or who, not having a nationality and being outside the country of his former habitual residence for any particular reason, is unable or, owing to such fear, is unwilling to return to such country, and any wife or child over the age of thirteen years of such a refugee.
This provision, if administrative procedures were in place to implement it, would allow asylum seekers to apply for Class M entry permits from Kenyan immigration officers at entry points. However, there are no Kenyan immigration officers available to hear such applications either at the border or after an individual enters the country, even if she enters lawfully, for example with a tourist visa. As a result, regardless of what the law says, there is no way for a genuine refugee to ask for legal permission to enter or remain in Kenya as a refugee through the use of an entry permit. And, practically speaking, asylum seekers report to UNHCR in order to receive refugee status. Consequently, asylum seekers simply enter the country-at which point they are "unlawfully present" under the Immigration Act, and subject to arrest and detention.
As aliens, asylum seekers and refugees are also subject to the provisions of the Aliens Restriction Act (ARA). The ARA sets out to accomplish what its title implies-to restrict the presence and rights of aliens in Kenya. The Act gives "the Minister," during "times of war or imminent danger" the power to impose several types of restrictions on aliens.145 These include prohibitions on the entry of aliens to Kenya and requirements that aliens reside in designated areas.146 Aliens who violate such orders are subject to a fine of Ksh.3,000 [U.S.$38] and imprisonment not exceeding six months.147 Although the ARA was passed after Kenya became party to the Refugee Convention, there are no specific provisions for the status and rights of asylum seekers and refugees.148
Kenya's parliament has been debating a draft Refugee Bill since 1990. The latest version of the Bill obtained by Human Rights Watch is from 1994. The draft Bill falls short of international standards since it affords unfettered discretion to a single "Minister" in charge of refugee matters to receive recommendations for refugee status from an eligibility committee, to make the final decision on refugee status, and to hear appeals. The Bill requires asylum seekers to apply for status within seven days of their arrival, a limitation that is unreasonable. UNHCR has stated that "failure to submit an asylum request within a specified period should not lead to the exclusion of the request from consideration."149 The draft Bill also requires refugees to live in refugee camps, without enacting exceptions to that policy in law. Other provisions of the draft Bill, such as the definitional sections, are unobjectionable and would implement Kenya's obligations under international law. Finally, the draft Bill does envisage establishing "transit centers" for asylum seekers while their applications are being considered. This provision, if implemented in accordance with human rights standards, might help to alleviate the incidents of rape and other abuses that have been shown here to occur during the first weeks an asylum seeker is in Kenya.
Before 1991, the Kenyan government used an ad hoc administrative refugee status determination (RSD) system to recognize refugees, despite the fact that it lacked domestic laws providing for their rights and status. Asylum seekers were interviewed by an Eligibility Committee, made up of representatives from the Ministry of Home Affairs, the Immigration Department, and UNHCR observers. The Committee usually heard individual cases and applied the Refugee Convention definition, as provided for in the Class M Entry Permit category, but the Committee did not apply the OAU definition. Most newly arriving refugees were processed through a reception center established in October 1981 at Thika,150 a town near Nairobi.151
Conflict in Uganda, Somalia and Sudan brought large numbers of refugees to Kenya in the early 1990s. Kenya hosted 14,400 refugees in 1990, but as a result of the increase in regional conflicts, the number had risen to 120,000 by 1991.152 Just one year later, in 1992, 401,000 refugees were living in Kenya.153 The large numbers overburdened the Eligibility Committee, causing Kenya to ask UNHCR to set up refugee camps. UNHCR and international NGOs were needed at the time since the large numbers of arrivals far outstripped the government's ability to ensure their well being. While there was an obvious need for an emergency response from the international community, the agencies involved usurped Kenya's refugee administration almost completely. This all-or-nothing approach scrapped the positive aspects of Kenya's pre-1991 refugee policy, including, for example, the laissez-faire approach by which refugees were allowed to locally integrate, and enjoy rights to work, education and freedom of movement.154 Most fundamentally, the Kenyan government's pre-1991 role in refugee status determination was surrendered to UNHCR and quickly forgotten.
Once UNHCR took over status determinations in Kenya in 1991, the entire system changed. UNHCR contracted with its then implementing partner, Jesuit Refugee Service (JRS), to create a status determination center at Wood Avenue in Nairobi. After the status determination interview, each asylum seeker would either receive refugee status and be directed to a camp, or in exceptional cases receive permission to remain in Nairobi. Alternatively, the asylum seeker would be rejected and instructed to depart from the country.
The status determinations run by JRS were a problematic delegation of the responsibilities of Kenya and UNHCR to an NGO. The process was also criticized by refugees.155 However, the most problematic aspect of the system was that the government of Kenya ceased to be actively involved in recognizing and protecting refugees in its own territory. The government's acknowledgement of its duties towards refugees was eroded to the point that in 1998 it refused to recognize the UNHCR protection letters issued by JRS.156 Thereafter, the government has engaged in an alternating policy of benign neglect and open hostility towards refugees and the documents recognizing their status, granted under the authority of UNHCR.
In December 1998, JRS determined that it was unable to follow its mission statement while running status determinations. The NGO also decided that it would no longer perform a function that was, in fact, the responsibility of the Kenyan government and of UNHCR. In the absence of governmental willingness to take over, UNHCR began running the determinations in January 1999.
UNHCR-run Status Determinations
Since 1999, refugee status determinations in Nairobi have been conducted entirely out of UNHCR's Westlands offices in Nairobi. Unfortunately, UNHCR's attempt to fill the gap created by the Kenyan government has fallen short of its own standards applicable to status determinations. These can be found in UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status (Refugee Status Determination Handbook), which is founded upon international law since it is based upon the conclusions of UNHCR's Executive Committee.157
According to the Refugee Status Determination Handbook, applicants for refugee status should "receive the necessary guidance as to the procedure to be followed."158 In Nairobi, the only guidance asylum seekers receive about where to seek asylum and what procedures to follow comes from other asylum seekers. UNHCR does not provide applicants with guidance about the process they are about to undergo even after they reach UNHCR's office.
The first step in seeking asylum in Nairobi is to go to the Westlands UNHCR office. Located in a suburban business district, the office is not easily accessed from most of the neighborhoods in which refugees are living. Refugees with some money use matatu buses159 to reach the office. A round-trip fare can cost as much as Ksh.100 (U.S.$1.28). Most do not have money, and so they must make the journey on foot, sometimes walking for several hours before reaching the office.
Refugees soon learn that they must arrive very early in the morning in order to be seen by UNHCR. On April 25, 2002-described to us as an average Thursday160-a Human Rights Watch researcher arrived at the offices by 7:45 a.m. and counted approximately 200 individuals waiting to be seen by UNHCR, who were transferred through a series of holding areas and lined up in various locations by UNHCR security staff.161 Some elderly men who were unable to stand for a long period of time were abruptly and aggressively ordered to stand in line like everyone else. Aside from these altercations, the process of lining up and transferring refugees from place to place was handled by the UNHCR security staff without incident.
At approximately 9:00 a.m., the refugees were brought into two larger, covered sheds where seating consisted of a haphazard array of unfastened boards lying on top of metal supports. Public toilets for men and women were within easy reach of the sheds. The refugees sat and waited until staff from community services and the eligibility center arrived to process their requests, at approximately 10:30 a.m.
On their first visit to UNHCR, most asylum seekers are given an "appointment slip."162 The slip is approximately six-by-eight inches, and is made out of ordinary copy paper. Each asylum seeker's photograph is dry-sealed to the slip, and the stamp of UNHCR is affixed over one corner of the photograph and the slip itself. The slip indicates the individual's name, number of dependents, gender, nationality, and date the slip was generated. It also provides a space for the date and time of the appointment and the category of UNHCR officer to be seen.
The appointment slip becomes the asylum seekers' only piece of identification for subsequent visits, and for life in Nairobi. Some of the people waiting to see UNHCR already had their slips; some were coming to UNHCR for the first time and had no documentation.
As of the time that Human Rights Watch departed the sheds, approximately 1:00 p.m., only the asylum seekers without appointment slips had been called into the eligibility center, presumably to have the slips prepared for them. Those asylum seekers who had slips, many of whom had appointments scheduled for that day, could wait until as late as 4:00 or 5:00 p.m. before being seen. Many would be told that their appointments would have to be rescheduled.
New asylum seekers come to UNHCR in order to be granted an appointment date for their status interview. The appointment slip is the only piece of identification that asylum seekers have to show to police or other authorities. Since asylum seekers must hold on to the slip for such a long time, the papers become very tattered and dirty. This is despite the fact that each refugee interviewed by Human Rights Watch tried to preserve the slips by keeping them in a special place, such as a plastic bag or a paper folder.
Most first-time visitors to UNHCR's offices leave on the same day with an appointment slip, although some refugees interviewed by Human Rights Watch had to return repeatedly before they were given the slip. Once assigned a slip, asylum seekers must wait for their interview date. Most often, that date is three to four months away. Given the extremely difficult conditions of life for asylum seekers in Nairobi, waiting three to four months for any detailed attention from UNHCR is risky and even life threatening.
Pierre K., a seventeen-year-old boy from the DRC arrived in Nairobi on January 27, 2002. He spent two days looking for shelter and learning about UNHCR's procedures from his fellow refugees. He showed a Human Rights Watch researcher his appointment slip that indicated that he went to UNHCR on January 29, 2002 and received an appointment slip for an interview on May 30, 2002.163
A man with six children showed a Human Rights Watch researcher his slip and said, "When I first came to Nairobi I went to UNHCR. I arrived there on February 21, 2002. I was given an appointment for June 2, 2002. What will I do until then?"164 Another Ethiopian asylum seeker had to wait for four months-he showed his slip to Human Rights Watch and explained, "I went to UNHCR on October 29, 2001 and was granted an appointment for February 28, 2002."165
Status Determination Interviews
During the status determination interviews, asylum seekers are interviewed by a member of UNHCR's eligibility center staff. The officer who conducts the interview reviews the facts after the interview, sometimes doing additional research or cross-checking information, and either recommends that UNHCR grant or deny refugee status. Next, the recommendation is received by senior protection staff who review the file and make the final decision on an individual's status. In 2001, UNHCR in Nairobi considered the eligibility of 400 to 500 cases each month.166 In the beginning of 2001, there was a 50 percent rejection rate. By year's end, the rejection rate was 40 percent.167 UNHCR told a Human Rights Watch researcher, "the eligibility process has still been slower than what we desire. Our aim was to process claims within two to three months. However, claims are taking up to six months to process."168
Asylum seekers are not given information about the standards against which their cases will be measured, nor are they given a sense of how long the process will take, including how much time it should take to assess their file if they have to appeal or if they are in need of resettlement. As noted above, this lack of information is contrary to UNHCR's own Refugee Status Determination Handbook.
Staffing limitations are clearly a major part of the problem. With only fourteen eligibility officers and one refugee status determination specialist on staff, the four to five hundred cases received each month cannot be adequately dealt with. The UNHCR Nairobi eligibility officers who interview asylum seekers are a team of mostly Kenyan attorneys, who have been trained in refugee law. Each attorney can see about four cases each day.169 The attorneys do not receive the files of the asylum seekers they are interviewing until the morning of the appointment. 170 As a result, each officer only has a few hours to prepare for the interview, at most. 171
Asylum-seekers who are recognized as refugees receive a letter from UNHCR. The letter is often referred to as the "protection letter" or the "mandate letter"172 by refugees. The A4-size letter on standard-weight copy paper recognizes the status of its holder as a refugee, and is affixed with the refugee's photograph and the seal of UNHCR. Many of the letters require the holder of the letter to travel to one of Kenya's refugee camps. A few allow the individual to remain in Nairobi for one of the exceptional reasons (discussed in Part III, below).
Ten to fifteen percent of the persons rejected by UNHCR appeal their cases. However, rejected asylum seekers do not receive written information about the reasons for their rejection, apart from pro forma letters indicating that their case has been rejected for failure to fulfill eligibility criteria. Human Rights Watch met several refugees who had been rejected, but had managed to learn what procedures to follow to launch an appeal and had successfully done so. Again, information about appeals procedures was gleaned from other refugees and from the only local refugee rights NGO in Nairobi, the Refugee Consortium of Kenya (RCK). Several others had decided not to appeal their case, and still others had no idea that an appeal was possible.
Appeals are heard by a different protection officer in the UNHCR eligibility center, not by the officer who made the original decision. Current UNHCR staff told a Human Rights Watch researcher that appointments for appeals are often rescheduled and delayed because preparing and reviewing the files takes a great deal of time.173
Once their status has been recognized, refugees living in Nairobi may raise their need for resettlement with UNHCR. Only those cases warranting additional review will be examined for possible referral according to criteria established in UNHCR's Resettlement Handbook. A threshold inquiry is whether the refugee is vulnerable in the country of first asylum. If he or she is found to be vulnerable, then refugees fulfilling one of eight criteria may be referred. These are refugees with: legal and physical protection needs, survivors of violence and torture, medical needs, women at risk, family reunification, children and adolescents, elderly refugees, and refugees without local integration prospects.174
UNHCR then refers the potential case for resettlement to one of several governments. The governments accepting the highest numbers of refugees from East Africa are the United States, Canada, Australia, and Norway.
143 See Immigration Act, Para. 8, Para. 12.
144 See notes 16 and 18 above, discussing the OAU Refugee Convention and the prima facie status of refugees.
145 See Aliens Restriction Act, Article 3, para. 1.
146 See Aliens Restriction Act, Article 3, para.1 (a), (c), (d).
147 See Aliens Restriction Act, Article 3, para. 3.
148 Some of Kenya's obligations under the Refugee Convention have been enacted into Kenya's extradition law. According to this law, if requests for extradition are made by the requesting country in order to prosecute or punish an individual on grounds other than his alleged criminal offense, the request can be rejected after an assessment of the case by an adjudicator. See The Extradition (Commonwealth Countries) Act, 1968, Article 6.
149 See UNHCR, Sub-Committee on International Protection, Note on Asylum, August 30, 1979, para. 16.
150 The reception center was used by the Kenya government from 1981 until April 1995. Afterwards in 1996, it was briefly re-opened to screen refugees and asylum seekers arrested during an immigration swoop in Nairobi.
151 See Report of the United Nations High Commissioner for Refugees, General Assembly Official Records: Thirty-seventh Session Supplement No. 12 (A/37/12), United Nations, New York, 1982, para. 114.
152 See UNHCR, The State of the World's Refugees 2000: Fifty Years of Humanitarian Action, Oxford University Press, 2000, p. 311-313
154 See Guglielmo Verdirame, "Human Rights and Refugees: The Case of Kenya," Journal of Refugee Studies, Vol. 12, No. 1, 1999, p. 57.
155 For example, one refugee interviewed by Human Rights Watch had been in Nairobi since 1997. Although he was not Rwandan, he had spent some time in Rwanda before reaching Kenya, and perhaps because of this (men from Rwanda were under extreme suspicion of being genocidaires), he was told that his status could not be assessed. In fact, this same refugee alleged that JRS was refusing to interview most male asylum seekers at the time. Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.
156 See Guglielmo Verdirame, "Human Rights and Refugees: The Case of Kenya," Journal of Refugee Studies, Vol. 12, No. 1, 1999, p. 58 (citing The East African, September 7, 1998).
157 For an explanation of UNHCR's ExCom, see note 23, above.
158 See UNHCR, Refugee Status Determination Handbook para. 192(i).
159 "Matatus" are mini-van buses run by private individuals in Nairobi. They are the only means of inexpensive public transport in Nairobi.
160 Thursday is one of two days designated for reception of Great Lakes refugees.
161 A Human Rights Watch researcher waited with the group of refugees, who were first ushered into a shed with a row of benches, surrounded by high walls and gates, on the outside perimeter of UNHCR's offices. The space was just large enough to hold the group. At approximately 8:30 a.m., the refugees were taken out of this holding area and asked to line up in the mud road outside the next set of gates.
162 See Annex B, below for an example of a UNHCR appointment slip.
163 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
164 Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.
165 Human Rights Watch interview with refugee, Nairobi, Kenya, April 6, 2002.
166 Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 2, 2002.
167 Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 2, 2002.
168 Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 18, 2002. UNHCR informed Human Rights Watch that as of September 2002, asylum claims were being processed "in about three months after registration." Written comments from UNHCR Branch office, October 8, 2002.
169 Human Rights Watch interview with individual wishing to remain anonymous, Nairobi, Kenya, April 22, 2002.
170 Human Rights Watch interview with individual wishing to remain anonymous, Nairobi, Kenya, April 22, 2002.
171 Human Rights Watch interview with individual wishing to remain anonymous, Nairobi, Kenya, April 22, 2002.
172 This colloquial use of the term "mandate letter" by refugees is often inaccurate. In any refugee situation, including in Kenya and Uganda, UNHCR has the power to recognize refugees under the agency's "mandate" to protect refugees. In Kenya, the UNHCR protection letters (erroneously referred to as "mandates") are not issued by the agency under its "mandate," but are instead documents recognizing the individuals as refugees in accordance with Kenya's obligations under the Refugee Convention and the OAU Refugee Convention. In Uganda, refugees also use the terms interchangeably, which is more confusing since in Uganda there are government-issued documents recognizing refugees and a completely separate process for some who are in fact recognized under UNHCR's "mandate," sometimes after the refugees have been rejected by the Ugandan government.
173 Human Rights Watch interview with UNHCR staff member, Nairobi, Kenya, April 22, 2002.
174 See UNHCR, Resettlement Handbook, Chapter 4.