A three judge bench of appeal court yesterday upheld decision quashing government decision to compel urban refugees to return to camps in a ruling seen to uphold right to dignity.
This is the second time in a span of less than two weeks that courts have come to the rescue of refugees. Only last week it overturned the state decision to close Dadaab refugee camp.
Yesterday appeal judges Philip Waki, Festus Azangalala and Patrick Kiage dismissed plea by the state to overturn high court ruling which blocked its plan to rid urban off refugees.
The three judges noted that the state has gone against international law and it is having done so is alone sufficient to justify quashing of the directive. International laws protect the refugees as vulnerable group.
The court found fault with the state saying in arriving at the policy in question the relevant government departments did not engage in any discernible and meaningful consultation with those directly affected.
“It was a classic case of paternalistic unilateralism on the part of the government which out of the blue made a decision ostensibly for the good and benefit of urban refugees. It was a decision made in a knee-jerk response to grenade attacks not rationally connected to refugees,” said the court.
It added: “It was a high handed decision quite oblivious to and uncaring about the ensuing hardships that the target groups of persons would thereby be exposed to.”
The court pronounced itself strongly in support of preservation of human dignity saying the state was wrong in assuming it can take any action it pleases even when it affects the Bills of rights, guarantees of individual groups without involving them.
The judges noted that the decision to round up some 18,000 people transporting them to Thika municipal stadium as holding ground before encampment was ominous in intent and demeaning in effect.
“These targeted persons were, unless the contrary was proved, innocent and their only crime is it appears to be that they fled for their lives and freedom and sought refuge in Kenya,” said the judges.
The justices added: “That they should have been targets of rounding up by security agencies and thereafter be herded into a stadium awaiting processing, encampment and then repatriation to their countries or origin struck at the very heart of their dignity and worth.”
The appeal arose out of judgement of Justice David Majanja delivered on July 29, 2013.
Justice Majanja heard the case and ruled in favor of the urban refugees saying the State failed to demonstrate the proliferation of the refugees in urban areas is the main source of insecurity.
The case was filed initially at the high court by Kituo Cha Sheria, Abebe Dadi Tullu and six others.
It was necessitated by a decision by Kenya government communicated through press release on December 18, 2012 which stopped reception, registration and close down of all registration centres in urban areas with immediate effect. The state had also directed that all asylum seekers will be hosted at the refugee camps.
Asylum seekers from Somalia were asked to report to Dadaab while those from other countries were asked to report to Kakuma refugee camp.
The state had also asked the UNHCR to stop providing direct services to asylum seekers and refugees in urban areas.
The government issued the orders following a spate of attacks in Kenya’s northeastern Somali regions as well as in the capital Nairobi, with several blasts in the largely ethnic Somali district of Eastleigh.