, NAROBI, Kenya, Feb 9 – The High Court on Thursday declared the move by the Government of Kenya to close the Dadaab camp illegal.
Judge John Mativo gave several reasons for reaching that conclusion but chief among them was that it violated the principle of non-refoulement.
Non-refoulement being the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.
The only legitimate exceptions, he said, being in the case of a threat to national security or individual conviction of a refugee and only then of a crime of grave nature.
“Not a single case of arrest or conviction was presented before me.”
In both instances however, he said, it could not be applied as generally as the Government of Kenya had done.
An act he described as tantamount to “group persecution” and therefore a violation of the right to dignity by ascribing the status of “criminal” to the community of Somali refugees.
The refugees’ right to fair administrative action, Mativo found, was also violated by the decision to uproot their lives taken without their being allowed a say.
The Government of Kenya, Mativo found, not only failed to adduce evidence of their criminality but also failed to present tangible proof to the court – either through expert testimony or a credible report – that the situation in Somali had normalised.
The GoK, he said, had also failed to demonstrate how the limitation of the refugees’ individual rights served a greater good.
He therefore pulled no punches when he described the action as not only illegal but discriminatory and unjustified.
Given the foregoing, he declared the decision to close the Dadaab camp “or forcefully repatriate refugees anywhere in Kenya” null and void and took the remedial action of ordering the reinstatement of the Department of Refugee Affairs which was disbanded by the Ministry of Interior on taking the decision to repatriate Somali refugees.
Amnesty International which was a party to the case has welcomed the ruling describing it as, “historic.”
“This crucial ruling will determine the fate of more than a quarter of a million, mostly Somali, refugees currently living in Dadaab. It also represents a major step in efforts towards halting forced returns of refugees to Somalia where we have evidence that they are at risk of serious human rights abuses,” said Muthoni Wanyeki, Amnesty International’s Regional Director for East Africa, the Horn and the Great Lakes.