The AG raised 26 grounds of appeal which were summarised into four main issues.
First, the court determined whether the High Court erred in the interpretation of article 39(3) of the Constitution and specifically whether the right of every citizen to enter, remain and reside anywhere in Kenya extends to refugees. The court held that freedom of movement relates to everyone but the right to enter, remain and reside anywhere in Kenya is accorded and reserved only to citizens and that therefore the State may impose reasonable conditions or restrictions on non-citizens. The court also held that section 17 of the Refugee Act was an administrative checklist and not a normative statement requiring refugees to reside in refugee camps.
On the second issue, the court found that the High Court’s interpretation of application of international law on the principle of non-refoulement was proper. Even though the principle is not explicitly provided in the Constitution, it has acquired the status of jus cogens (a peremptory norm of international law from which no derogation is permitted).
The court also determined whether the State had satisfied the limitation criteria of rights under article 24 of the Constitution. The court noted that the State’s obligation to provide security for its citizens is one of its foremost functions. However, the national security mantra cannot be deployed to insulate governmental action from scrutiny given the centrality of the Bill of Rights. The court found that the High Court had struck the article 24 balance. The State had failed to demonstrate a rational connection between the purpose of the policy and the limitation to the petitioners’ fundamental rights: that the proliferation of the refugees in urban areas was the main source of insecurity.
Finally, the court held that the executive has a legal obligation to consult the public in making and implementing public policy affecting refugees. This is in accordance with the values of transparency, good governance and public participation.
Right to movement, right to residence, non-refoulement, human dignity
The litigation leading to this appeal was triggered by a decision of the Government of Kenya to close urban refugee centers and relocate urban refugees to officially designated camps. This decision was made following a series of grenade attacks in urban areas. The decision was challenged by two petitions against the Attorney General (AG) that were later consolidated. The petitions sought declarations against the decision for violation of rights, orders of certiorari to quash the decision, prohibition to prevent the implementation of the decision and of mandamus to compel the Government to take certain steps to safeguard refugees’ rights. The High Court granted the prayers. Aggrieved by the decision, the AG appealed.
The appeal was dismissed with no order as to costs.
The decision threatened various rights of refugees (rights to human dignity, movement, fair administration), and was inconsistent with the State’s duty to protect refugees.
The decision was in contravention with fair administrative action, transparency, good governance and public participation.