We welcome the following guest post from Bríd Ní Ghráinne. Bríd is currently completing a DPhil at the Law Faculty, University of Oxford (with this post being cross-posted from the Oxford Human Rights Hub). She holds an LLM in Public International Law from Universiteit Leiden, the Netherlands, and a BCL (International) from the National University of Ireland, Galway.
As host to the largest Somali refugee population in the world, it is little wonder that Kenya’s shoulders have grown weary of carrying a burden which, in terms of numbers, falls just short of the half million mark.
Little wonder too is the desire of many Somali refugees to return to their country of origin. Many have spent over 20 years in Kenyan refugee camps after the collapse of the Somali government in 1991. Indeed, amidst reports circulating that between 30,000-80,000 refugees had returned voluntarily to Somalia in 2013, the time was ripe in November of last year to conclude an agreement to facilitate further returns. However, the implementation of this agreement reached a sudden halt in the last few days following the 27 May boycotting by the Somali Government of tripartite talks with Kenya and the United Nations High Commissioner for Refugees (UNHCR).
The Tripartite Agreement between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia, and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees Living in Kenya, 2013 was signed in 10 November 2013 and was welcomed by NGOs, UNHCR, and various stakeholders as representing an important step in the development of durable solutions for Somali refugees. The Tripartite Agreement has been carefully drafted so that the option of returning refugees to Somalia is not treated as an alternative to asylum. Return can only be carried out in specific circumstances, as it does not entail the cessation of refugee status and therefore there still exists insufficient protection from persecution in the country of origin. Thus the principle of voluntary return and the right to return in safety and dignity form the backbone of the Tripartite Agreement. The Preamble of the Agreement also reaffirms the prohibition of refoulement, which protects refugees from being sent to places where their lives or freedoms are in danger. Kenya and Somalia are bound by this principle as States Parties to the 1951 Convention Relating to the Status of Refugees and Kenya is a State Party to the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which also prohibits refoulement.
Voluntary repatriation has not, however, been the practice of Kenya in the aftermath of the conclusion of the Tripartite Agreement. In April 2014, Kenya launched a massive security crackdown on Somali refugees following terrorist attacks in several areas, culminating in the forced deportation of 359 refugees. As various NGOs have informed us, the current situation in Somalia is not conducive to the mass return of refugees and only a few parts of Somalia are safe for return. Unsurprisingly, therefore, both Amnesty International and the UNHCR have condemned these acts as a breach of international law.
The Somali government has responded by refusing to attend a meeting concerning the Tripartite Agreement, which was due to take place on 27 May. According to the Somali government:
As we are concerned about the plight of Somali refugees and the unlawful activities committed by the Kenyan security forces against the refugees of Somalia in Kenya, we cannot attend such meeting.
The launch of a 12-member Tripartite Commission to oversee the gradual and voluntary repatriation process has now been suspended. It remains to be seen how the acts of the Kenyan and Somali authorities will impact the future of the Tripartite Agreement before its implementation has even begun. It is also worrying that the Tripartite Agreement can be terminated by either party at six months’ notice, and that at the time of writing, the parties to the Agreement have not engaged in dialogue to overcome this first but highly significant obstacle to implementation.