The fraught issue of what rights the 490 000 displaced people living in Kenya should enjoy emerges yet again from a recent high court decision. In this case, prominent human rights activist, Okiya Okoiti, who has won a name for his work as executive director of Kenyans for Justice and Development, took on Kenya’s refugee affairs secretariat, the country’s attorney general and the Kenyan branch of the United Nations refugee agency. His claim was that ‘guidelines’ for election of refugee community leaders, issued by Kenya’s refugee affairs secretariat (RAS) and by UNHCR Kenya, violated Kenya’s constitution.
Okoiti put it to the high court’s constitutional and human rights division in Nairobi, that these guidelines for how refugees should elect their leaders were firmly based on ‘location’ – where the people were living now – and did not cater for the different ethnic and geographical backgrounds of the displaced people as many refugees would prefer.
He said that this denied the refugees ‘true representation’. He also complained that the government required candidates to apply online for nomination and clearance if they wanted to contest elected posts, and that this process ‘denies the refugee communities the opportunity to vet and nominate the candidates of their choice.’
At the heart of the argument was his claim that ‘there was no public participation’ in formulating the guidelines. If the court were to agree, it would mean that the constitution was infringed as well as the Fair Administrative Action Act, he argued.
According to RAS, before the guidelines were implemented there had been ‘broad and extensive sensitisation’ within the refugee community. RAS said elections were now based on ‘areas’, rather than on ethnicity or nationality, in order to ‘foster unity among the diverse refugee tribes and nationalities.’ There was nothing to stop refugees from having ‘their own internal structures of leadership’ since the guidelines were ‘only intended to give general directions as to how refugee elections would be conducted and not to impose leaders on the community.’
In the view of RAS the right to freedom of association – allegedly at stake here – is not an absolute right ‘and can be limited for purposes of public order’.
Okoiti said it was clear that the guidelines had not come out of public participation. RAS had conceded ‘that there was no public participation’ but that it instead ‘undertook civic education’ about the guidelines. People had a right to expect that RAS and the UNHCR would ensure the proposal to change the system of electing refugee leaders was allowed proper debate by the public as well as the refugees and other stakeholders. But because this had not happened, and the two bodies acted outside the provisions of the constitution in holdings elections in 2018, these elections too ought to be invalidated.
According to RAS and UNHCR, however, ‘elections in the refugee community are not a matter of right’.
The big question for the court was whether the guidelines were subjected to public participation, and whether the meetings held in relation to the guidelines ‘amounted to public participation.’
Judge Weldon Korir said that public participation meant that before any public policy decisions were made, those directly affected should have a chance to take part in the development of these policy decisions.
But what had happened during the meetings about the guidelines? According to reports of the meetings, quoted by the judge, the object was stated to have been to raise awareness of elections and to share the guidelines. Obviously then, these meetings were not intended to involve the refugee communities in shaping the guidelines or asking for input on how elections should be conducted. Instead, the purpose was ‘to inform them of the existence of the guidelines and how they were to be implemented.’
And according to the report of what happened at these meetings, when one of the communities argued for elections based on community and ethnicity, officials replied: the ‘new dispensation is based on locations’.
The judge commented, ‘It is clear to me that the intention of this exercise was not to gather input from the refugee communities to inform the development of the guidelines …. It is apparent that [they] had [already] been finalised by the time the refugee community was involved and any views provided by the refugee community could not have informed the generation of the document.’
The judge therefore found that there had not been public participation before the guidelines were formulated. ‘A draft of the guidelines was not put to the public for approval. The document was done and dusted by the time the sensitisation exercise was conducted.’
RAS and the UNHCR might be correct that elections based on ethnicity would erode Kenya’s system of elections, a system that is not based on ethnic division, but ‘this does not license [RAS and the UNHCR] to forego procedures set out in the constitution.’
'Chaos and confusion'
The judge found both that the guidelines themselves were unconstitutional and contrary to law, and that elections held under these guidelines were also null and void. To bypass any ‘chaos and confusion’ that might result, however, he found that any actions undertaken by those elected under the contentious guidelines would ‘remain valid and lawful’.
The decision by Judge Korir is one of a series of court pronouncements on key elements of policy on refugees. For example, in 2017, the high court ruled against a government plan to close a large refugee camp, and in 2013 the court found that a government scheme to move thousands of refugees from Nairobi and other cities into camps, should be set aside.