Section 18A of the Refugee Act showed that the intention was not to cap the number of refugees being admitted into Kenya but those allowed to stay. As Kenya already had 450,000 – 583,000 refugees, it meant that for the country to reach 150,000, not only must there be no admission of refugees, but that there had to be expulsion of about 430,000 refugees. The effect of Section 18A was to violate the principle of non-refoulement, which was a part of the law of Kenya and was underpinned by the Constitution. The provisions of s 48 of Security Laws (Amendment) Act, as well as the provisions of s18A of the Refugee Act were unconstitutional and therefore null and void.
The State had legal options for dealing with refugees whom it deemed to have engaged in conduct that was not in conformity with their status as refugees, and setting a cap that would lead to violation of the Constitution.
Constitutionality of laws; refugees; freedom of movement; international treaties; non-refoulement; whether putting a cap on the number of refugees in the country falls foul of international obligations and constitution
The consolidated petitions challenged the Constitutionality of various sections of the Security Laws (Amendment) Act, No 19 of 2014 (SLAA) which amended the provisions of twenty two other Acts of Parliament concerned with matters of national security. The Security Laws (Amendment) Bill was published on 11December 2014. It was debated on18, December 2014 and passed. It received Presidential assent on19 December 2014. SLAA came into force on 22 December 2014.
S 48 of the Security Laws (Amendment) Act which introduced Section 18A to the Refugee Act, 2006 was declared unconstitutional.
S 48 of the Security Laws (Amendment) Act violated the principle of non-refoulement as recognized under the 1951 United Nations Convention on the Status of Refugees which was part of the laws of Kenya by dint of Art 2(5) and (6) of the Constitution. Domestically and internationally, the cornerstone of refugee protection was the principle of non-refoulement, which states that no State shall return a refugee in any manner whatsoever to where he or she would be persecuted. That principle was widely held to be part of customary international law.