First, the court determined whether the directives violated the principle of non-refoulement (right to freedom from expulsion from a country where you seek refuge). The court noted that article 33 (2) of the 1951 Convention provides two exceptions for non-refoulement: where there are reasonable grounds for regarding a refugee as a danger to the security of the country and where a refugee has been convicted by a final judgement of a particularly serious crime. The exceptions require an individualized determination and should be applied with the greatest caution. The court held that the government violated the principle of non-refoulement, since the directives constituted a blanket condemnation since no refugees had been arrested in relation to the security crimes. Consequently, the court also held that the directives were not justifiable nor proportionate according to the conditions for limitation of rights in article 24 of the Constitution.
The directives violated the refugees' rights to a fair administrative action. The court applied the notion of procedural fairness to the public that is set in motion by administrative action adversely affecting the public. The court found that the refugees of Somali origin constituted the “public”. Further, that the directives did not make provision for examination of their individual circumstances and violated their rights to fair administrative action.
The circumstances in Somalia had not fundamentally changed to warrant cessation of refugee status based on “ceased circumstances” in articles 1C(5) and 1C(6) of the 1951 Convention. The report by Amnesty International identified areas of serious concern raising doubts as to whether or not the changes that may have taken place, in Somalia, were permanent and enduring.
Finally, the court held that the decision by the 4th respondent, to disband the Department of Refugees was invalid. The 4th Respondent acted ultra vires (outside his powers) since a statutory body cannot be dissolved by executive action, but through amendment of a law.
International law, judicial review, non-refoulement, repatriation, national security
This petition brings into sharp focus Kenya's obligations under international law, international and regional conventions, the Refugee Act and the application of the Bill of Rights to persons enjoying refugee status within the Republic of Kenya and the circumstances under which refugee status can legally cease to exist. It was triggered by directives issued by the 3rd respondent and the 4th respondent, acting for the Ministry of Interior & Coordination of National Government. The directives communicated the intended repatriation of refugees and asylum seekers of Somali origin, revoked the prima facie refugee status of Somali refugees and disbanded the Department of Refugee Affairs. The petitioners challenged these directives.
The respondents stated that the directives were informed by security challenges such as terrorist attacks, human trafficking, proliferation of arms and the cessation of the circumstances giving rise to the refugee status.
The petition was allowed. The directives issued by the 3rd and 4th respondents were declared null and void.
The 3rd and 4th respondents acted in excess and in abuse of their power. The directives violated the rights of refugees to dignity, to be protected against discrimination, non-refoulement, fair administrative action and equality.