The essential issue for determination was whether the Directive violated the provisions of the Kenyan Constitution particularly the rights to dignity, equality, freedom of movement and just administrative action as well as the principle of non-refoulment. Against that backdrop, the High Court had to consider two things. First, whether the Directive violates the rights and fundamental freedoms of refugees. If so, the second would be whether such a violation is justifiable while bearing cognisance to international instruments and domestic law.
As far as the freedom of movement is concerned, the court made the determination that the right has been threatened because Refugees are protected thereby and the holding and moving of Refugees limits such right. Additionally, the right to just administrative action was found to be violated too insofar as it takes away accrued or acquired refugee rights without due process of the law. The two remaining rights were determined to be violated to as well because of their individual dignity and association being undermined. Furthermore, the principle of non-refoulement was found to be threatened as the State sought to exploit rather than protect the vulnerability associated with refugees.
These violations failed the justifiability enquiry as international and domestic law demands that the fundamental rights and freedoms of refugees ought to be protected by states which have ratified international instruments.
Definition of Refugee; Right of refugees to dignity; Right of refugees to equality; Right of refugees to just administrative action; Right of refugees to freedom of movement
A Directive was issued by the Kenyan Government declaring that the government had decided to stop reception, registration and close all refugee registration centres in urban areas with immediate effect while also stating that all refugees and asylum seekers will be hosted at refugee camps. The Directive further urged the United Nations High Commissioner for Refugees and other partners to stop assisting them and transfer those same services to the designated refugee camps.
Kituo and the petitioners challenged the Directive on a plethora of constitutional grounds vested in the Bill of Rights. They claimed that the Directive violated the rights of refugees to just administrative action, human dignity, freedom of movement and equality while simultaneously stating that the Directive is in conflict with the principle of non-refoulement.
The High Court quashed the Directive and declared it unconstitutional.
The Directive unjustifiably violates the fundamental freedoms of the petitioners and other refugees.