Lessons and Recommendations for Implementing Kenya’s New Refugee Law

Country: Kenya Source: Refugees International Please refer to the attached file. By Abdullahi Boru Halakhe , Samson Omondi , | August 1, 2024 Executive Summary The shift of Kenya’s refugee law and practice away from decades of encampment towards socio-economic integration of refugees through settlement is a positive step at a time when many countries are adopting restrictive postures toward refugees. However, for refugees to draw full benefit from the changed law, plans, and practices, the Kenyan government should develop a comprehensive refugee policy that will articulate what constitutes refugeehood, the practical application of the law, and the broader vision of sustainably addressing the decades-long encampment. The central plank of policy should be elevating the Department of Refugee Services (DRS) into an autonomous outfit with the requisite resources to fulfill its functions, including coordination across governments and external humanitarian actors. Fully implementing the refugee law requires significant, sustained funding and technical expertise. Donors should step into funding it and establish robust accountability and oversight mechanisms to ensure funds are used prudently and for the specific purposes assigned. Before embracing the encampment policy following the outbreak of Somalia’s civil war in 1991, Kenya afforded refugees—albeit few to start with—freedom of movement and the right to work and own property. Subsequently, Kenya claimed that the security imperative dictated the switch to encampment policy. In conjunction with the UN Refugee Agency (UNHCR), the government temporarily established the Daadab and Kakuma Refugee Camps in 1991 and 1992, respectively. Over the last two decades, the number of camps has increased because of conflicts in neighboring countries. However, donor funding is declining, making it challenging to sustain the camps’ care and maintenance. Safe and dignified return to the country of origin, integration in the host country, and resettlement in a third country are the primary durable solutions to refugee crises. Of the three, the protracted nature of conflicts often stymies safe return – displacement lasts 20 years on average for refugees and more than 10 years for most internally displaced people (IDPs). Less than one percent of refugees are resettled in third countries, mainly in the West, and nationalistic sentiments are curtailing this pathway for refugees, which leaves reintegration in the host country as the primary remaining policy option. Kenya’s Refugee Act and plans pursue integration by granting refugees the right to work, freedom of movement in a designated area, and the right to own property. Additionally, refugees will be included in the subnational county government’s development plan to access education and other government services, including health. Should they choose, the law also allows refugees to take up East African Community (EAC) citizenship1 upon giving up their refugee status. As East African citizens, refugees will enjoy all citizens’ rights in all member countries, including the right to work, freedom of movement, and the right to own property. Pivoting away from encampment and embracing local integration gives refugees agency. Unlike in the camps, where they rely on aid, refugees contribute to their and host communities’ socioeconomic development through local integration. However, this is not the first time integration has been proposed as a package of policy solutions to displacement—and it has a mixed record. Despite pursuing an integration approach away from encampment, Kenya’s new refugee posture has two principal gaps. The first is how the law has been c it is vague in crucial areas like land which are directly linked to livelihood. Freedom of movement is circumscribed. Refugees have to endure significant bureaucratic barriers to owning property under the law. The second gap is governance structures. Chief among them, the Department of Refugee Affairs’ capacity to deliver on the law is, at best, m the regulation to govern the transition does not even mention integration, and the Shirika Plan—a UNHCR project that would turn some refugee camps in Kenya into more integrated settlements— has been at work for some time now and has not yet been published. Further, plans in Kenya for the socio-economic integration of refugees fall short of full integration because they do not offer legal integration, which includes assimilation and naturalization. Despite the gaps, Kenya’s new refugee law and regulations are a significant and welcome step towards a durable solution to the protracted refugee situation in Kenya. Some gaps, especially regarding coordination, can be resolved through a comprehensive refugee policy articulating Ministries, Departments, and Agencies (MDAs) powers, functions, and roles. Authorities should harmonize the laws and coordinate them across the two levels of government and external actors working on refugee affairs. Some aspects of implementing the law will require substantial and sustained funding due to decades of neglect and poor infrastructure in the refugee-hosting regions. Donors can help in funding these projects. Recommendations To the Cabinet Secretary for Interior and National Administration of Kenya: Draft a comprehensive Refugee Management Policy that will provide institutional, legal, and administrative clarity, including coordination between/among the Ministries, Departments, and Agencies. The policy should clarify coordination and the roles of the national and county governments, donors, and outside humanitarian actors. The policy will address some gaps, some of which were because the law was passed before the policy. Elevate the Department of Refugee Affairs into a semi-autonomous government agency (SAGA) through a Cabinet Memo with direct funding from the exchequer to match its functions under the Refugee Act 2021. This would allow the department to dispense its responsibilities and prevent it from depending on actors like UNHCR funding to run its core functions. Currently, UNHCR covers a significant amount of the Department of Refugee Services’ budget. Audit all the laws, institutions, and subsidiary legislations affected by or affecting the Refugee Act 2021 to ensure they are streamlined and not in conflict. The law touches on over two dozen pieces of legislation, including land, registration, and Know Your Customer laws. Auditing and streamlining the regulations will help ensure a smooth transition. Issue a single, harmonized refugee identification document rather than the current situation where refugees require multiple forms of documentation to seek travel and access services. Ensure the identity is consistent across government systems to ease refugees’ access to services and reduce the risk of identity fraud. Develop a communications strategy to regularly update partners at all levels, including refugee and host communities and Nairobi-based stakeholders. An overall objective would be to broaden and sustain stakeholder engagement and mobilization of support. The Ministry should work directly with the refugee-hosting counties to own and directly support refugees, including sharing resources and including them in decision-making of refugee affairs at the county level. To the Kenyan Department of Refugee Services: Resume the refugee registration process suspended in 2016 and clear the backlog of 100,000 unregistered refugees so they can receive humanitarian aid while in the camps and enjoy the benefits of the new refugee law. As long as they remain unregistered, they cannot receive humanitarian aid and support. Embark on an extensive public information campaign on refugee law nationwide, especially at the subnational governmental and country levels where the refugees are hosted, including the urban refugees already outside the Kakuma and Daadab Refugee Camps. The county government is a central pillar in implementing the law, but only a few county officials are sufficiently familiar with it, including the rights of the refugees. Once elevated to a Semi-Autonomous Government Agency, undertake recruitment of personnel with requisite skills and competencies to manage the department’s affairs, including taking over some of the UNHCR’s role and implementing other aspects of the Refugee Act. However, UNHCR should retain critical refugee protection functions for specific classes of refugees who need them. To International Donors: Provide sustained, flexible funding to support Kenya’s implementation of the new refugee law, particularly considering that the places where the refugee camps are located need more investment because of their previous history of marginalization. Donors should increase the levels of refugee funding and send the largest share of the fund to government authorities, such as the Department of Refugee Affairs, county governments, and local humanitarian groups, with a smaller portion of the funding sent to the major international humanitarian groups. The Department of Refugee Services and county governments in urban and rural refugee-hosting counties should be the primary funding recipients to enhance their technical and governance capacities and understand their international humanitarian obligation regarding refugees. Ensure prudent funding management by streamlining and coordinating refugee funding to avoid wastage and duplication. Robust accountability mechanisms should follow the streamlining of the funding so that money is spent only on the activities and projects for which they are budgeted. To the UN Refugee Agency (UNHCR): Offer training to Department of Refugee Affairs officers and county authorities on refugee protections in line with the Refugee Act and international refugee and humanitarian standards as they transition into taking complete charge of all refugee issues. Once the Shirika Plan is launched, limit their role to advisory, not operational, and let the Department of Refugee Affairs take the lead in all refugee matters, except in cases where their expertise is requested. Support the Department of Refugee Affairs and the national and county governments in developing a refugee protection protocol, especially for political asylees who could face prosecution. Help develop a protection framework for refugees who want to relinquish their refugee status to acquire Eastern African citizenship, as well as the potential dangers involved, including the lack of refugee protection.

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