The court held that it was crucial to consider the vulnerable position of refugee children as refugees fell within the category of vulnerable persons recognized by art 20(3) of the Constitution since they had been forced to flee their homes as a result of persecution, human rights violations and conflict. Furthermore, that refugees or those close to them had been victims of violence on the basis of very personal attributes such as ethnicity or religion and that 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. In addition to vulnerabilities which a person could face by virtue of being a refugee, the difficulties of a person’s situation was extrapolated if that person was also a child and thus belonged to another group of “vulnerable persons”.
The court found that in the circumstances 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 ought to have paid attention to the interests of the children cited in the instant petition, before proceeding to take their parents to refugee camps.
Constitutional law; human rights law; asylum seekers; refugees; minor refugees; children's rights; relocation; forced relocation
The petitioners in the instant case claimed that the respondents had failed to apply the best interests of the child standard in terms of art 53(2) of the Constitution of Kenya, 2010 and s 4(2) of the Children Act in the implementation of the Directive and press statement. Furthermore, the petitioners claimed that the respondents had infringed upon the constitutional rights of the minor refugees.
Respondents, jointly and severally, were ordered to re-unite the 2nd Petitioner and other affected refugee with the 48 children on whose behalf the present Petition was brought; Directive dated 26th March 2014 to relocate the 2nd Petitioner and other affected refugees (parents of the 48 children aforesaid) to refugee camps in Kenya was declared null and void; Respondents declared to have acted in contravention of Articles 53(d) and 53(2) of the Constitution.
The State had not provided any evidence whatsoever to show that the relocation of urban refugees, who were lawfully registered by itself, 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 principle of the best interests of the child was a universal standard which had its origins in family law and was a guiding principle in decisions to be made about children.