The court held that it was true that there was no specific legislation on refugees as such in Kenya. Art 33 of the Convention was only one article in a Convention with 35 articles relating to the status of refugees. The Convention accorded privileges to refugees and also imposed obligations on them. The stand taken by the applicant that he could not and should not be sent back to Iraq or any other country seemed to be premised on art 33 (1) of the Convention.
In addition, the court noted that the applicant not only entered Kenya illegally but also remained in the country for a long time without bothering to report his presence and purpose for his entry and stay to the Kenyan authorities. Neither did any other person on his behalf report the applicant’s presence and purpose in Kenya to the Kenyan authorities. He chose to ignore the Kenyan Government completely even before he knew whether or not the UNHCR would grant him refugee status. He defied the law and the authority of the Government.
The court held that valid orders were made by the minister after the due process of law declaring the applicant a prohibited immigrant and ordering his removal from Kenya and ordering his detention in police or prison custody during the interim period.
International refugee law; refugee status; precedence of international law over national law; UNHCR; sovereignty
The applicant, an Iraqi national, pleaded guilty to immigration charges and was fined and ordered to be repatriated back to Iraq. He paid the fine and while awaiting repatriation/ deportation, he was granted refugee status by the United Nations High Commissioner for Refugees UNHCR which had intervened a day earlier fearing that the respondents would deport the applicant. The applicant filed the instant application of Habeas Corpus for the orders: that summons do issue directed against the 1st respondent to appear in person; and that the respondents do hand over the applicant to the interested party–(UNHCR). The respondents argued that the Government could not release that applicant to the UNHCR as he was a convicted criminal and a ministerial order that declared him a prohibited immigrant was still in place and he could only be released to the UNHCR on condition that he was relocated to a third country or deported to Iraq.
The Kenyan Government was still willing to spend public resources to have the applicant taken back to Iraq or any other country willing to accept him and it was also willing to release the applicant to the UNHCR on condition that the UNHCR would relocate him to a third country or even to Iraq. The stand taken by the Kenya Government was within the law. Consequently, there was nothing illegal or improper about it and Kenyans expected no less. The laws and national interest of Kenya as a Sovereign State should be accorded due respect.
There was no evidence that the convention had been incorporated into Kenya’s municipal law, or domesticated. It could not be validly contended that Kenya was impotent to deal with aliens who entered and stayed in the country in violation of its existing national laws. There was no vacuum in that broader regard.