Asylum-seekers should be dealt with under refugee law, says Kenyan court – not under immigration legislation

17 June 2022 · Carmel Rickard

The Kenyan courts regularly hear cases related to people claiming to be asylum-seekers. The latest, decided three months ago, led to a judgment pointing out that the men at the heart of the matter, flagged for deportation, had the right to access Kenya’s elaborate new system designed to inquire into the validity of someone’s claim for refugee status. The two men were convicted of being illegally in Kenya and were to have been deported once they had served their term of imprisonment. Judge Joseph Kamau, however, set aside their conviction and sentence and ruled they were to be handed over to the Department of Refugee Affairs immediately for processing as asylum seekers.

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The problems experienced by Espoir Ndaruhuya and Fredy Ndakenesha, both from the Democratic Republic of Congo, are not unusual. They came to Kenya from the DRC, and told the trial court they entered the country intent on seeking refugee status. They were arrested, however, charged, tried and convicted – but under the law related to immigration, rather than the law that applies to refugees.

Both pleaded guilty in the magistrates’ court to charges that they were in Kenya illegally in terms of the provisions of the immigration law. They were fined Kshs 10 000; alternatively, they were to serve six months in prison after which they were to be deported to Rwanda within 30 days. The two paid their fines and appealed to the high court, contesting various aspects of their trial in the magistrates’ court. While Judge Joseph Kamau heard and considered the matter, and effectively decided their fate, the two were held at Kisumu Central Police Station, awaiting deportation.

Judge Kamau, however, went beyond events of the magistrates’ court trial. He explained the procedure to be followed by asylum-seekers arriving in Kenya under the Refugee Act and the duties the law puts on officials who must administer the Refugee Act.

Fairly

He also noted that though the two claimed to be trying to obtain asylum they were not dealt with under the Refugee Act by the trial court, but under the Kenya Citizenship and Immigration Act.

Judge Kamau found that the trial proceedings were conducted fairly, and said he found nothing showing any illegality in the way matters were handled. However, the judge noted that the two were arrested after the new Refugee Act came into force, and thus, even if the two had entered Kenya illegally, ‘they still had 30 days … as stipulated in the … Refugee Act to apply for refugee status.’

He said it was possible that the two ‘may have been asylum seekers’ and stressed that ‘there is a very elaborate process of processing asylum seekers’ in Kenya. The court had thus come to the firm conclusion ‘that despite the ever-present threat of unwanted elements who might carry out terrorist activities and unfriendly acts against Kenya, the deportation of the applicants pursuant to the Kenya Citizenship and Immigration Act was premature as they had not exhausted their application and appeal mechanisms stipulated under the Refugee Act.’

Refunded

Judge Kamau also pointed out that if the two were unsuccessful in persuading the authorities of their claim, after exhausting their legal rights before the commissioner, the appeals committee and the high court, they would then be processed under the immigration law and deported to their country of origin.

The effect of his finding was that the conviction and sentence imposed on the two men by the magistrates’ court was set aside and any fine they had paid had to be refunded immediately.

Judge Kamau concluded: ‘For the avoidance of doubt, the applicants shall be handed over to the department of refugee affairs forthwith to enable them to make an application for refugee status for their processing as asylum seekers … to comply with … the Refugee Act.’

This is a case that illustrates a common problem for would-be refugees: they are sometimes treated under immigration laws as illegal immigrants rather than as asylum-seekers under refugee legislation. It takes an astute lawyer or a well-versed judge to spot the problem, as here, and put the asylum-seeking process back on track.

Carmel Rickard

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