Until 2006, Kenya did not have a law exclusively providing for refugees. The Refugees Act, 2006 was assented to on 30th December, 2006 and came into force on 15th May 2007. The key function of the Act is to make provision for the recognition, protection and management of refugees. The Act, has been amended severally over time. The Refugees Bill, 2019 has also been tabled to the National Assembly and is in 2nd reading stage. When we hear of the word refugee, the first word that comes to mind is asylum. Asylum is defined under section 2 of the Refugee Act as shelter and protection granted by the government to persons qualifying for refugee status. In defining who a refugee is, Section 3 of the Refugee Act categories refugees under two categories; statutory refugee and prima facie refugees. A statutory refugee is defined as a person who has as well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion, is out of his country and is unwilling to go back to his country due to that fear. A prima facie refugee on the other hand is described as a person who due to external aggression, occupation, foreign domination or events seriously disturbing public order in his country leaves to seek refuge in another country.

Recognition of a person as a refugee

Any person who enters Kenya and wishes to remain in Kenya as a refugee is to notify the Commissioner, of his intentions, immediately upon his entry. For a person who is lawfully in Kenya but is unable to return to his country due to reasons under Section 3 of the Refugee Act, he shall, present himself before an appointed officer and apply for recognition as a refugee before lawful expiry of his lawful stay. The application is then referred to the commissioner who considers it within 90 days by making inquiry or investigation and thereafter call the applicant to make an oral presentation. The commissioner may then either grant refugee status or reject application and notify applicant in writing within 14 days of the decision with reasons, if the application is rejected.

A person who applied for recognition of status as refugee may remain in Kenya until he is recognised as a refugee or if rejected, until he has exhausted right of appeal. If rejected and has exhausted the right of appeal he is allowed reasonable time not exceeding 90 days, to seek admission to a country of his choice. This time may be extended by the commissioner on application if he is satisfied that there is a reasonable likelihood of the person being admitted to a country of his choice within the extended period.

No proceedings should be instituted against any person or any member of his family in respect of his unlawful presence within Kenya if the person has made an application for recognition as a refugee and has not yet exhausted right of appeal or the person has become a refugee.

Refugee and asylum seekers and members of their families are to be issued with a refugee identity card or pass in a prescribed form, and are permitted to remain in Kenya in accordance with provisions of the Refugee Act and they are not to leave the designated refugee camp without the permission of the Refugee camp officer.

Disqualifications from grant of refugee status and cessation of the refugee status.

The Refugee Act provides for instances when a person does not acquire or loses his refugee status. Such instances include one who has committed crimes against peace, a war crime, or a crime against humanity, has committed a serious non-political crime outside Kenya before h/she arrived in Kenya and was admitted in Kenya as a refugee, guilty of acts contrary to purposes of the United Nations or the African Union or hold dual citizenship and could avail himself for protection in the other country he is a national for no valid reason. The Refugee Act further provides that a person ceases to be a refugee if the person ; voluntarily re-avails himself of the protection his country, if he had lost his nationality and voluntarily reacquires it, acquires a new nationality and enjoys protection of his new country, voluntarily re-establishes himself in the country which he left, circumstances in which he was recognised as a refugee cease to exist, has committed a serious political crime outside Kenya before his admission as a refugee or having lost his nationality, refuses to go back to country of his habitual residence.

Loss of refugee status, withdrawal of recognition of refugees and expulsion of refugees and members of their families

The Commissioner may withdraw a person’s refugee status where there are reasonable grounds that, that person is a danger to national security or to any community of that country. The Commissioner can also revoke recognition of a person as a refugee on reasonable grounds that the person should not have been recognized as one or has ceased to be a refugee. The commissioner shall notify the person concerned in writing of the decisions together with the reasons. The person’s refugee status shall cease on the expiration of seven days after the date the commissioner notifies the person of the withdrawal. However, a member of the family of the subject refugee can still apply for recognition. The Minister may order the expulsion from Kenya of any refugee or member of his family on grounds of national security and public order. He is to do this in consultation with the minister responsible for matters relating to immigration and internal security but before doing so, he shall act in accordance with the due process of the law.

Rights and duties of refugees and members of the family of the Refugee in Kenya

Basically, all refugees are entitled to rights and subject to obligations contained in the international conventions to which Kenya is party, subject to all laws in force in Kenya and lastly a refugee in a wage-earning employment, is subject to the same restrictions as are imposed on persons who are not citizens of Kenya. The Refugee Act prohibits the refusal of a person’s entry to Kenya, expulsion or extradition from Kenya or returned to any other country to subject any similar measure if it results endangerment of his life, physical integrity or liberty. Refugee women and children are also entitled to special protection.