Refugee Consortium of Kenya, N T (suing on behalf of D L (minor) & 47 others) v Attorney General, Cabinet Secretary Ministry of Interior and National Co-ordination & Commissioner of Refugee Affairs
Refugee Consortium Of Kenya & Another V Attorney General & 2 Others  eKLR
The Welfare of the Child should be considered by the State in Directives that affect Refugees.
Refugee Consortium of Kenya & another v Attorney General & 2 others
Petition 382 of 2014
High Court at Nairobi
I Lenaola J
December 18, 2015
Reported by Phoebe Ida Ayaya
On March 26, 2014, the Cabinet Secretary for the Ministry of Interior and National Co-ordination (hereafter referred to as the 2nd Respondent) issued a press statement informing the public of the decisions made by the Government with regard to refugees and national security issues. Among the decisions was the directive that all refugees residing outside designated refugee camps as specified in Gazette Notice No.1927 must return to their designated camps immediately. It was ordered that all refugee registration centres in urban centres were to be closed.
Consequently, the Government launched an internal security operation called Operation Usalama Watch that was carried out by the National Police Service around Eastleigh Estate and other areas perceived to be “hideouts” for illegal immigrants. As a result, the 2nd Petitioner, as well as parents of other minors, were arrested and detained. They were detained despite pleading that they had young children who needed their care. They were then forcefully taken to Daadab Refugee Camp leaving their minor children behind. It was the above actions that triggered the present Petition.
The Petitioners sought a declaration that the Respondents were specifically in contravention of articles 29(d) and (f) and articles 53(1)(d) and 53(2) of the Constitution. The articles respectively protected the rights to freedom and security of the person which included the right not to be subjected to torture in any manner or treated or punished in a cruel, inhuman or degrading manner, and the rights of every child to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and hazardous or exploitative labour and provides that a child’s best interest was of paramount importance in every matter concerning the child. They further based their Petition on article 27 which guaranteed equality and freedom from discrimination; article 28 which protected the right to dignity and article 47(1) which protected the right to fair administrative action. The Petitioner also claimed that numerous provision of the Children Act, 2010 had been violated and that the children had been separated from their parents in contravention of international and regional law.
Whether fundamental rights and freedoms could be limited under article 24 of the Constitution of Kenya, 2010 based on national security considerations
Whether the best interests of the child were considered by the State when it implemented a directive that led to the arrest of refugee parents
Whether the Respondents’ Directive and press statement infringed upon the children’s rights to parental care, education and to be protected from neglect
Whether the State had differentiated between refugees living in refugee camps and those living in urban areas by issuing impugned directive contrary to article 27(4) of the Constitution of Kenya, 2010
Whether the directive denied the Petitioner the right to fair administrative action contrary to article 47(1) of the Constitution of Kenya, 2010
Whether the Respondents’ directive, press statement and subsequent acts and/ or omissions of the Respondents had violated the Petitioner’s rights to freedom and security of a person and right to dignity as stated under articles 28 and 29(d) and (f) of the Constitution of Kenya, 2010
Constitutional law-fundamental rights and freedoms- - limitations of human rights and freedoms- whether rights and fundamental freedoms could be limited under article 24 of the Constitution of Kenya, 2010 based on national security considerations- Constitution of Kenya, 2010 article 24
Constitutional law – Rights of the Child –best interests of a child- right to shelter, parental protection and education – whether the best interests of the child were considered by the State when it implemented a directive that led to the arrest of refugee parents- Constitution of Kenya, 2010 article 53(2); Children Act, 2010 section 4(2)
Constitutional law-fundamental rights and freedoms- right to equality and freedom from discrimination- refugees living in refugee camps and those living in urban areas- whether the State had differentiated between refugees living in refugee camps and those living in urban areas by issuing impugned directive contrary to article 27(4) of the Constitution of Kenya, 2010- Constitution of Kenya, article 27(4)
Constitutional law- fair administrative action- reasons for decision while effecting an administrative action-whether there was a limitation to enjoyment of fair administration - what amounted to a breach of fair administrative action as guaranteed by the Constitution- whether the directive denied the Petitioner the right to fair administrative action contrary to article 47(1) of the Constitution of Kenya, 2010- Constitution of Kenya, 2010 article 47(1)
Constitutional law-fundamental rights and freedoms- right to equality and freedom from discrimination-right to human dignity- freedom and security of the person- whether the Respondents’ directive, press statement and subsequent acts and/or omissions of the Respondents had violated the Petitioner’s rights to freedom and security of a person and right to dignity as stated under articles 28 and 29(d) and (f) of the Constitution of Kenya, 2010.
International Law –application of international law - protection of refugees – international obligation of the Kenyan government with respect to protection of refugees –whether refugees qualify as vulnerable persons under the Constitution of Kenya-Constitution of Kenya, 2010, article 21(3)
Relevant provisions of the Law
Constitution of Kenya, 2010
Article 24 - Limitation of Rights and Fundamental Freedoms
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of limitation;
(c) the nature and extent of limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom-
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, dress, language or birth.
Articles 29(d) and (f)
Every person has the right to freedom and security of the person, which includes the right not to be-
d. Subjected to torture in any manner, whether physical or psychological;
f. Treated or punished in a cruel, inhuman or degrading manner.
The United Nations High Commission on Refugees (UNCRC)
“(r)efugee children are children, first and foremost, and as children, they need special attention”.;
Refugee children face far greater dangers to their safety and well being than the average child. The sudden and violent onset of emergencies, the disruption of families and community structures as well as the acute shortage of resources with which most refugees are confronted, deeply affect the physical and psychological well-being of refugee children. It is a sad fact that infants and young children are often the earliest and most frequent victims of violence, disease and malnutrition, which accompany population displacement, and refugee outflows. In the aftermath of emergencies and in the search for solutions, the separation of families and familiar structures continue to affect adversely refugee children of all ages. Thus, helping refugee children to meet their physical and social needs often means providing support to their families and communities.
In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Refugee children fell within the category of vulnerable persons recognized by article 20(3) of the Constitution since they had been forced to flee their homes as a result of persecution, human rights violations and conflict. Refugees had been victims of violence on the basis of very personal attributes such as ethnicity or religion and they were vulnerable due to lack of means, support systems of family and friends and by the very fact of being in a foreign land where hostility was never very far.
The vulnerabilities a refugee would face were extrapolated if that person was also a child. Refugee children belonged to another group of vulnerable persons. The refugee children were children first and foremost, and as children, they needed special attention.
Refugee children were susceptible to disease, malnutrition and physical injury; they were dependent on adults for their physical, psychological and social wellbeing. Their development should not have been interrupted. They faced far greater dangers to their safety and well being than the average child.
The sudden and violent onset of emergencies, the disruption of families and community structures as well as the acute shortage of resources with which most refugees were confronted, deeply affected the physical and psychological well-being of refugee children. It was a sad fact that infants and young children were often the earliest and most frequent victims of violence, disease and malnutrition that accompanied population displacement and refugee outflows. In the aftermath of emergencies and in the search for solutions, the separation of families and familiar structures had affected adversely refugee children of all ages. Helping refugee children to meet their physical and social needs often meant providing support to their families and communities.
In terms of article 2(5) and (6) of the Constitution of Kenya, 2010, the general rules of international law and any treaty or convention ratified by Kenya formed part of the law of Kenya. Kenya had been a signatory of the following relevant international and regional instruments:
The 1951 Convention Relating to the Status of Refugees (“1951 Convention”).
The 1967 Protocol relating to the Status of Refugees.
The 1969 Organisation of African Unity Convention Governing the Specific aspects of Refugee Problems in Africa (“AU Convention”).
The 1989 United Nations Convention on the Rights of the Child (“UNCRC”)
The 1990 African Charter on the Rights and Welfare of the Child (“ACRWC”)
Refugees Act, 2006 made provision for the recognition, protection and management of refugees and for connected purposes. Section 16 of the Refugees Act ensured that every recognized refugee and every member of his family living in Kenya was entitled to the rights, and was subject to the obligations, contained in the international conventions to which Kenya was party and was subject to all the laws in force in Kenya. Refugees were also entitled to the protections of the Constitution and the Bill of Rights. Kenya had further enacted the Children Act, 2010 in order to give effect to the principles of the CRC and ACRWC.
The guiding principle when dealing with the rights of children was that of the best interests of the child. Article 53(2) of the Constitution of Kenya 2010, provided that a child’s best interests were of paramount important in every matter concerning the child and the Children Act in turn at section 4(2) provided that in all actions concerning children, whether undertaken by public or private social welfare institutions, Court of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. These principles were also recognized in article 3(1) of the CRC and article 4(1) of the African Charter.
A party who approached the Court for the enforcement of fundamental rights and freedoms under article 22 of the Constitution must have stated his claim with some measure of precision in respect of the right allegedly violated and must have demonstrated how it had been violated in relation to him or another person.
Discrimination was differentiation on illegitimate grounds. Unfair discrimination further meant that people were treated differently in a way that impaired their fundamental dignity as human beings. Article 27(4) of the Constitution thus provided that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, dress, language or birth.
The Petitioners had not made a compelling case in their claim that the Respondents had differentiated between refugees living in refugee camps and those living in urban areas by issuing impugned directive. Further, that the said action was taken to ensure that all refugees were eventually detained in camps and thus subjected to the same conditions. It was not evident what any unfair impact which the Directive might have had on refugees living outside of the camps may be and the Petitioners. It had not been shown that it was only the refugees involved in the present Petition who were targeted and which others were left out and why.
The Petitioners had not made an argument in either their written submissions, or in any of the Affidavits sworn in support of how the directive, press statement and subsequent acts and/ or omissions of the Respondents had violated the Petitioner’s rights to freedom and security of a person and right to dignity as stated under articles 29(d) and (f) and article 28 of the Constitution of Kenya, 2010.
The Petitioners were denied the right to fair administrative action. Policy that had not made provision for the examination of individual circumstances and anticipated exceptions was unreasonable and breach of article 47(1) of the Constitution. It was unreasonable of the respondents to indiscriminately relocate all the arrested refugees without considering their individual circumstances first.
The decision to grant exemptions to some refugees who were affected by the impugned actions were made several months after the fact and were an admission that the initial decision was hurried and not procedurally fair. It showed that the rights to fair administrative action and the best interests of the child were breached as the individual cases for consideration ought to have been dealt with before the relocation. That the affected parents were arrested while in Church, denied the opportunity to make arrangements for the care of their minor children, detained and moved to the refugee camps without any regard to all those fact was a clear breach of the expectations of fair administrative action and thence a breach of article 47 of the Constitution.
It was not in dispute that the children cited in the instant petition had been separated from their parents. Under article 9 of the CRC separation was only justified if it was necessary for the best interests of the child, which was clearly not the case in this matter. The evidence made it clear that Operation Usalama Watch was carried out abruptly. Parents had left their children behind for what they thought would be few hours of a church service, but never returned home.
There was more than one case of breastfeeding infants who were separated from their mothers and consequently suffered malnutrition. The effect of the separation had been to deprive children of the right of family life and parental care which they had previously enjoyed. The children’s lives had been therefore disrupted; many of them had no choice but to leave school because they had to deal with the trauma of losing their parents and some no longer had the means to pay for school fees or transport and some had to move in with relatives who did not live near the schools where they had been enrolled.
As a result of the actions of the Respondents, many families had lost their only income-earning members and most of the children’s guardians were very young and not in a financial position to look after them. Most of the guardians who had taken the places of detained parents were refugees themselves, and were living with the risk of being detained in terms of the Directive and leave the children without a guardian once more.
The Respondents had taken retrogressive measures which had caused children to lose the parental care which they had before the Directive was implemented. The Respondents’ defence that they issued exemption and movement passes to deserving refugees was not plausible. Almost all the parents of the children on whose behalf the Petition was brought were arrested on May 4, 2014. The certificates of exemption were all issued more than a month after that date.
The reasons for qualifying for a certificate of exemption were, exclusively to continue with university studies and special medical needs. It was not evident that the Respondents had granted any exemptions from living in the camps on the basis that the refugee in question was a parent or guardian to a minor child and that it was in the best interest of that child to live outside of the camp and with his or her parent. Further, movement passes, vetted and approved in terms of the Respondents’ system, were only issued from July 31, 2014 and only allowed a refugee to leave the camp for a limited time. Thus the parents living in camps who wanted to reunite with their children could hope for was to be given a 30 day movement pass by the Vetting Committee, 3 months or longer after the initial separation. The exemption and movement pass procedures were in such circumstances of little help to the children whose rights were infringed by the separation from their parents and who had lost their source of security, care, income and nutrition.
The Respondents’ suggestion that the children ought to have been reunited with their parents in the camps was not a viable option because, apart from interfering with their educational and social integration, it also failed to take account of the individual circumstances of the children and their parents. The Respondents’ had not provided proof of the existence and adequacy of facilitates like schools, health facilities, solar street lighting and security in the camps. It was not tenable and neither did it convince a solution.
The determination of what was in the best interests of the child required a clear and comprehensive assessment of the child’s identity, including his or her nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. In order to determine the best interests of a child therefore, an individualized examination of the precise real-life situation of the child had to be made. None had been made in the instant matter.
Section 28(2) of the South African Constitution, which was exactly the same as article 53(2) of the Constitution of Kenya 2010, had been interpreted by South African Courts to be a right and not just a guiding. It had also been interpreted to require the law to make the best efforts to avoid, where possible, any breakdown of family life or parental care that may threaten to put children at increased risk. Similarly, in situations where rupture of the family became inevitable, the State was obliged to minimize the consequent negative effect on children as far as it can.
The fact that the best interests of the child were paramount did not mean that they were absolute and considering the impact of a custodial sentence on a child did not mean that a primary caregiver would never be given a custodial sentence. However, even in a matter as serious as sentencing for a criminal conviction, the best interests of a child were to be taken into account.
The Respondents ought to have paid attention to the interests of the children before proceeding to take their parents to refugee camps. The best interests of children could not be an absolute bar against the implementation of legitimate national security and refugee control policies. However, had the best interests of the children been considered by the Respondents at the point where the parents of the Petitioners were taken to Kasarani Police Station for the verification of their documents, they could have been spared much anguish and suffering.
The Petitioners had succeeded in showing that the implementation of the Respondents’ Directive and press statement infringed upon the children rights to parental care, education and to be protected from neglect. The Petitioners had also showed that, far from their best interests being considered to be of paramount importance, their interests were not considered at all. The Respondents had infringed upon the rights of children under articles 47(1) and 53 of the Constitution and had also breached sections 6(1), 7 and 13(1) of the Children Act and article 9 of the CRC
The state bore the burden of demonstrating that the directive and press statement were reconcilable with the limitations of rights and fundamental freedoms provided under article 24(3) of the Constitution of Kenya, 2010. The five factors to be considered in determining whether a limitation to the Bill of Rights was reasonable and justifiable under article 24 (1) could not be applied mechanically as a mere checklist, but was rather to be used in balancing different interests and determining the proportionality of rights’ limitations. The more serious the impact of the measure on the right, the more persuasive or compelling the justification must be.
Limitation based on national security considerations could not be excluded from consideration under article 24 of the Constitution of Kenya, 2010. A real connection had to be established between the affected persons and the danger to national security posed and how the indiscriminate removal of all the urban refugees would have alleviated the insecurity threats in those areas. The acts of the Respondents had to reflect the element of proportionality when they considered the danger and suffering bound to be suffered by the individuals and the intended results ought to be squared.
The Respondents had not provided any evidence to show that the relocation of urban refugees, who were lawfully registered, would address the current security challenges. No evidence had also been adduced to prove that there was a clear nexus between lawfully registered and law-abiding refugees and security challenges. The Directive and press statement, according to which all refugees were to be relocated to refugee camps, had not been shown to be related to the safeguarding of national security at all. Beyond the assertion that less restrictive means might have been available to achieve the purpose of improving national security, the Directive and press statement could have been implemented in a less restrictive manner.
The Respondents could have prevented the infringement of the rights of children by considering their best interests prior to detaining their parents in refugee camps and yet with its powerful state machinery, still managed any security challenges they were facing at the time. Not every refugee was a security threat and the fact that refugees may be in a refugee camp was similarly not an assurance of safety. In fact, lessons from recent terrorist attacks would be that terrorists might not necessarily be a part of the refugee community contrary to popular thought in the public court.
The limitation of the Petitioners’ rights was not justified under article 24 as no rational connection between the purpose of the Directive and the infringement of rights had been established.
Article 23(3) of the Constitution of Kenya, 2010 provided that in any proceedings brought under article 22, a Court may grant any appropriate relief. The kind of relief appropriate in the circumstances safeguarded the individual rights of the children while at the same time allowing the State and its agencies including the Refugee Department and other stakeholders to develop and implement policies that were consistent with the values of the Constitution including addressing security concerns in an insecure world.
Important as the need to secure Kenyans was, haphazard, ill-thought out, knee-jerk reaction-like directives could not be allowed to override the said Bill of Rights unless article 24 of the Constitution of Kenya, 2010 was properly invoked.
Application partly allowed. The following orders were issued:
An order of Mandamus was issued to compel the Respondents, jointly and severally to re-unite the 2nd Petitioner and other affected refugee with the 48 children on whose behalf the present Petition was brought
An order was issued that nullified the Directive dated March 26, 2014 to relocate the 2nd Petitioner and other affected refugees to refugee camps in Kenya.
A declaration was issued that the Respondents acted in contravention of articles 53(d) and 53(2) of the Constitution in respect of the 48 children affected by the Directive.
An award of Kshs.50,000/- was to be paid by the Respondents to each of the 48 affected children.
Cost of the Petition was to be paid to the 2nd Petitioner and the 48 affected children.
1. Kituo cha Sheria & 7 others v Attorney General Petition No 19 & 115 of 2013 – (Followed)
2. Samow Mumin Mohamed v Cabinet Secretary Ministry of Interior & Co-ordination of National Government, Attorney General and Commissioner for Refugees Petition No 206 of 2014 – (Disapproved)
1. Sonderup v Tondelli & another 2001 (1) SA 1711 – (Mentioned)
2. S v M  ZACC 18 – (Considered)
1. Constitution of Kenya, 2010 articles 2(5) (6); 20(3); 22; 23(3); 24(1)(d) (e) (3); 25;26; 27(4);28; 29(d) (f); 39 (1) (2) (3); 47(1); 53 (1) (d) (2); 238 - (Interpreted)
2. Children Act, 2001 (Act No 8 of 2001) sections 4(2); 6 (1); 7; 13(1); 18 – (Interpreted)
3. Refugees Act, 2006 sections 7(2) (d); 16(2); 25 (f) – (Interpreted)
1. South African Constitution section 28(2)
1. African Charter on Human and Peoples’ Rights (ACHPR) (1998)
2. African Charter on the Rights and Welfare of the Child (African Children’s Charter) (1999)
3. Convention Relating to the Status of Refugees, (1951) articles 2, 26
4. International Covenant on Civil and Political Rights (ICCPR) 1966
5. Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969)
6. Protocol Relating to the Status of Refugees (1967)
7. United Nations Convention on the Rights of the Child (CRC) (1989) article 9
8. Universal Declaration of Human Rights (UDHR) (1948)
1. Miss Komo h/ b for Mr Kaliuki for Petitioner