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2017: The End of the Kenyan Judiciary’s Independence

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As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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2017: The End of the Kenyan Judiciary’s Independence
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Lawyer Julie Aullo Soweto glanced at her wristwatch and realised that she was running late for the 11 am pre-trial conference that was scheduled to take place on that morning of 14 November 2017. She robed quickly and debated whether or not to wear her advocate’s wig. In the end, she chose to leave the wig behind as she made her way from her Biblica House office to the Supreme Court building. She had filed an application at the Supreme Court for scrutiny of the materials from the 26 October 2017 repeat presidential election, and had a good feeling about its chances.

Almost single-handedly – over three days and with little sleep in between – she had drafted the application for scrutiny of election materials from the 8 August 2017 poll in the Raila Odinga petition. The success of that application, in which 19 of the 26 prayers were granted, enabled the petitioners to not only discover anomalies in the election results filed in the Supreme Court but also exposed the Independent Electoral and Boundaries Commission’s (IEBC) suspicious refusal to grant access to the computer servers used to receive, transmit and collate results. It likely played a significant role in persuading four of the six judges to nullify the election of Uhuru Kenyatta as president.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request.

Despite playing a critical role in the first petition, Soweto had not sought the public’s attention from the row of seasoned litigators assembled for the case but the petition challenging the repeat presidential election brought by civil society activists Njonjo Mue and Khelef Khalifa, would thrust her to the fore.  Soweto was determined to bring her experience from the first successful petition to bear on the second one. She had gone over the application, which had been allowed in August, tightening loose ends and closing gaps. She whittled down her original 26 prayers to a round figure of 20. It was the same bench of judges; she was certain they would allow it.  They did not.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request. They inundated the judges with frightful claims of the terabytes of information that would take two years to work through – while conveniently neglecting to mention that, in fact, these were photographic images of results forms. (Images occupy substantial space on databases.)

The question raised by this response is how the IEBC itself managed to sift through the terabytes of information within a week to establish who had won the vote.

In the event, the petitioners were granted the order for the original voters’ register but the IEBC demanded Sh80 million to have it photocopied. But even had the petitioners been able to afford the price of photocopying the register themselves, it would have taken several weeks to produce one and, in the end, the petitioners were simply given a soft copy of the register. This incident serves to illustrate the needless hurdles that the petitioners had to overcome.

The court granted only 2 out of the 20 requests around the scrutiny – allowing access to results declaration forms for the constituency, county and national tallying centres and permitting access to the voters’ register at the petitioner’s cost. The court’s ruling said:

Some of the prayers have been declined due to the sheer impracticability of their implementation given the short time left for the determination of the petitions at hand. Others have been declined because they were not pleaded with sufficient particularity in the Petition. Yet others were declined on grounds that they are couched in such general terms as to be no more than fishing expeditions.

The court had explained that the prayers had been “declined on the basis of very clear grounds, which will be elaborated in a detailed version of this ruling to be issued by the Court at a later date”. More than 18 months since that ruling was read out in open court, those reasons are yet to be made public.

Scrutiny is intended to demonstrate openness of the electoral process, wrote Justice Maraga in a 2016 paper, adding that it was one of the tools courts used to ascertain the integrity of an election. It is a court-supervised forensic investigation into the validity of votes cast and the subsequent determination of who ought to have returned as the winning candidate.

Scrutinising the servers

The decision to allow scrutiny of the servers in the August 2017 petition was notable in its provisions (showing a court that had a firm grasp of ICT matters), a far cry from what had happened in 2013. The orders on ICT were detailed and authoritative, indicating that the court’s ICT literacy was higher than it had been in 2013 when arguments about Uhuru Kenyatta’s The National Alliance (TNA) party sharing a results platform with the IEBC seemed to fly over the judges’ heads. There was a certain burden that the court understood it needed to discharge to command respect in the wider judiciary.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

The scrutiny in 2017 was a marked departure from what had transpired in 2013 when the Supreme Court ordered the Chief Registrar of the Judiciary to take charge of the exercise. That scrutiny got underway in fits and starts more than 24 hours after it was ordered, and was characterised by systems collapse, poor coordination and unequal representation of the various parties. Davis Chirchir and Winnie Guchu, who had both been members of the IEBC’s predecessor, the Interim Independent Electoral Commission, and were now working for The National Alliance Party, were present throughout. In contrast, lawyers for Raila Odinga showed up one evening at 8 pm, milled around the hall at the Kenyatta International Conference Centre for an hour, and left. By the time the court was being informed that the scrutiny had not been completed, Odinga’s lawyers had no report of their own to file.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

During the August 2017 petition, the petitioners sought to make the scrutiny produce the smoking gun that would prove their case. They alleged that not all the records of the vote count in the presidential election had been received at the national tallying centre when the results were announced; thousands of polling station results documents and scores of constituency results were missing, a claim acknowledged by the IEBC.

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Their lawyers asked the court to order a scrutiny of these documents. They also sought an audit of the servers, alleging that the IEBC’s system of electronically transmitting results from polling stations and constituencies had been compromised.

The judges not only allowed the scrutiny and the audit, but also ordered the registrar of the Supreme Court to supervise it. Petitioners and respondents were allowed two agents each while the lawyers for each side would be granted 15 minutes to make submissions. The court ordered the registrar to produce reports of the scrutiny and audit by 5 pm two days later.

The registrar of the Supreme Court supervised the scrutiny of the results forms, which took place at the Milimani Ceremonial Hall in Nairobi. A staff member of the court’s ICT department and two independent, court-appointed ICT experts oversaw the audit of the IEBC servers at the commission’s headquarters at Anniversary Towers in Nairobi. There had been disquiet at the commission, especially around the ICT system – and with good reason; Chris Msando, the commission’s head of ICT had been found brutally murdered barely a week to the election.

At noon on Tuesday 29 August 2017, James Orengo, Odinga’s lead advocate, reported to the court that the audit of the servers had not yet begun. By way of explanation, IEBC lawyers claimed that the delay in allowing access to the servers was due to the fact that the system’s high-level security was based in France – a two-hour time difference with Kenya – and their suppliers were still asleep at 9 am Kenya time when the audit was supposed to have begun.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election.

Justice David Maraga asked the parties to work together to comply with the order so that the court could receive a report by 5 pm, or reasons for the failure would have to be provided. “If some of your clients’ agents are in Europe, or wherever, they must have been told yesterday. Wake them up and get the order complied with,” he said.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election. The country had gone to the election without a back-up database for transmitting results and the IEBC did not have the capacity to analyse the data it received from the polling kits.

The reports on the scrutiny and audit were ready when the court reconvened just after 9 pm on Tuesday, 29 August. Orengo stated that the court’s order had only been partially complied with; the GPS locations for each of the Kenya Integrated Election Management System (KIEMS) devices used at the polling stations were not released. The read-only access to the servers the court had ordered had not been granted and agents were only given live access; they could not view or access the logs or see the log-in trail of users.

The 20-hour court-ordered scrutiny of results from the 8 August presidential election raised red flags for documents from at least 63 constituencies, 30 of which did not have a serial number and another 33 of which did not have a security watermark. Some were unsigned and others had typographical errors. Some forms were printed in landscape layout instead of the standard portrait layout of the original forms. Some forms had candidates’ first names printed before their surnames whereas on the standard form the surname preceded the first name.

The 30 constituencies that filed results forms without a serial number accounted for 1,407,746 valid votes, while documents for the 33 constituencies holding 1,850,706 valid votes failed the ultra-violet test because they did not have a watermark.

In his comments about the audit, Orengo said that the scrutiny of the forms showed that some did not have security features, others did not have serial numbers, and close to two-thirds of them did not have the handover section filled out. He said that the court audit had revealed that the election had been “shambolic”.

“Our case has been proven that forgery, trickery and alteration of documents has been used in various ways. We pray you should declare the election of the third respondent as not valid and not in accordance with the constitution,” he added.

But lawyer Fred Ngatia, who represented Kenyatta, said, “It is a fair report. It is our submission that this report fortifies what we have said all along that this election was a fair election.”

Justices Maraga, Mwilu, Wanjala and Lenaola constituted the majority that voted to annul the election of Uhuru Kenyatta for not having been done in accordance with the Constitution and the law. Dr Willy Mutunga’s students at university (Justices Maraga, Wanjala, Ibrahim and Lenaola) appeared to have improved on the record of their teacher.

Justices Jackton Ojwang and Njoki Ndung’u disagreed. Justice Ibrahim, who had been taken ill on the second day of the hearings, did not vote.

Justice Ndung’u, in her dissenting opinion of 1 September 2019, questioned the results of the scrutiny and wrote in detail about her own private examination of the documents in question, which produced different results. Justice Maraga felt compelled to repeat his opening statement after the dissenting opinions had been read out in open court: “The greatness of a nation lies in its adherence and its fidelity to its Constitution, and its strict adherence to the rule of law …”

Days later, Kenyatta’s Jubilee Party accused Supreme Court registrar, Esther Nyaiyaki, of doctoring the scrutiny and insinuated that she had colluded with the petitioners to massage the results. For good measure, the Ethics and Anti-Corruption Commission (EACC) began an inquiry into the allegations of impropriety on the part of the registrar. It remained an open question and, during the petition against the repeat presidential election, the Supreme Court granted limited access for scrutiny and the registrar kept a low profile.

Civil society as petitioner

All presidential election petitions in Kenya have been filed on the deadline day – hinting at the pressure under which they are prepared. They have also been decided within the constitutional deadline of 14 days after filing.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours.

In the run-up to the 26 October 2017 repeat election, police officers had attempted to forcibly enter the Africa Centre for Open Governance offices to shut it down for alleged tax transgressions. Its Executive Director, Gladwell Otieno, had been one of the petitioners challenging Kenyatta’s 2013 election. The Kenya Human Rights Commission, another critical civil society actor, was being threatened with closure over alleged financial impropriety.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours. Katiba Institute suffered a major power outage in the week before the deadline for filing a petition. All these organisations were working together under the Kura Yangu Sauti Yangu (KYSY) initiative to support free, fair and credible elections.

With threats and physical attacks on civil society organisations escalating as the deadline for filing the November 2017 petition drew near, the team preparing the case for civil society activists Njonjo Mue and Khelef Khalifa worked discreetly through the nights from a secret location.

They had up to midnight of the last day to file the petition. The court required eight copies for itself and several others for the different parties. The main challenge was ensuring that everything was filed on time. Some important documents had to be couriered by motorcycle to get to the registry on time.

Though they had hastily put together a strong petition, the petitioners’ lawyers felt the deck was stacked against them right from the start. There was hostility even at the registry, with court staff providing misleading information about the time of filing papers.

The respondents had put together an impressive assembly of legal talent to represent them — mostly senior lawyers and household names in Kenya. The petitioners’ lawyers were a team of experienced but younger lawyers. Kenyatta’s and the IEBC’s lawyers then used their seniority to obtain better treatment from the court. The lawyers for the petitioners felt that they were before a court that had already made up its mind – a court that appeared to be looking for reason and justification not to entertain the petition in spite of the strict standards it had set for the IEBC when it overturned the first election.

There were no friendly faces on the bench, but some judges were egregious. Judges appeared to take pleasure in demolishing the evidence and the manner in which it was introduced. One lawyer noticed that Justice Ojwang was being particularly hostile towards Julie Soweto. He appeared to be cross-examining Soweto when she began reading the resignation statement by former IEBC commissioner Roselyn Akombe. “He descended into the arena of litigation. Of all the judges, he was the one that was hardest on us,” said one of the lawyers on the team. “It was like we were litigating against them.”

Lawyer Jane Odiya, an experienced advocate, led the team that went to access the election results forms. She was accompanied by young data entry professionals and university students. Even though they were working under a tight deadline, the scrutiny team was initially stonewalled and then given the run-around at the IEBC’s Anniversary Towers offices. “The IEBC officials slow-walked the scrutiny even though we had the court order in hand,” recalls Haron Ndubi, co-counsel for the Mue-Khalifa petition.

Although IEBC lawyers accompanied the scrutiny team to the commission’s offices, they quickly left after giving assurances that the process would go on smoothly. That was not to be; IEBC officials took a long time to supply files. The scrutiny team wandered the halls of Anniversary Towers with no one to assist them. The IEBC corridors were teeming with people who looked like plainclothes police officers and who followed the scrutiny team everywhere, including into elevators and out of the building. One lawyer said she believed some of the officers trailed them in a vehicle as they went home.

The sense of frustration among the scrutiny team was palpable and, after tempers flared, the team was led into a cosy office at Anniversary Towers where they found lawyers for the commission and a senior IEBC official, who assured them that the conference room for examining the results documents was now ready. Once inside the conference room, the reason for the delay became quickly apparent: the Jubilee team, consisting of lawyers and party officials, like lawyer Faith Waigwa, was already present.

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The files were not to be copied during the scrutiny. The team could not enter the boardroom with their phones or stationery of any sort. The ban on any writing material was enforced with the help of plainclothes police officers posted at the door. The head of the scrutiny team had to go back to the Supreme Court to seek clarification on the order they had received. It was only after the judges stressed that the team could write down their findings that the exercise resumed. “We felt tortured,” admitted one of the petitioners’ advocates.

After the scrutiny, the team quickly put together its report, and the advocates fought to have it admitted into the record. The court declined, defeating the purpose for which the orders had been sought and issued. The court said the scrutiny report was merely one party’s view and not a rigorous finding arrived at by all parties to the petition. Both Kenyatta’s and IEBC’s representatives had been present when the petitioners scrutinised the results documents but they were there more to impede the process than to participate in it. The scrutiny fell short of the legal definition of one — it was, to be generous, a review of the documents.

The petitioners asked why the forms used to collate the presidential results differed from those the IEBC had brought to court. They further pointed out that the numbers shown in the election portal differed from the ones on the collation forms.

The rejection of the report and the limitation of its scope “broke all of us,” admitted another advocate who worked on the petition.

They believed that a proper scrutiny would have made plain the far greater illegalities in the 26 October election than even those found in the 8 August poll that had been nullified by the Supreme Court. The lawyers point out that the fact that the judges did not entertain the scrutiny gave away the endgame; the petition would be thrown out.

Yet, what the Supreme Court was being asked to do in the November petition was not easy. Even if there were merits to the case, it would be very difficult for a president to accept that he had lost the election, petitioned by a group of civil society activists. Privately, some of the judges felt that Odinga should have come back to court. Still, nullifying one election and paying such a heavy price for doing so had blunted the appetite for a repeat performance, unless a senior political player was asking for it.

After Odinga withdrew from the fresh election a mere fortnight to polling day, the Supreme Court felt that it need not enter into a political dispute. Perhaps the judges would have been less irritable had they felt that the political contestants were taking them more seriously. In the event, the judges treated the petitioners as if they had brought the petition as proxies for Odinga’s National Super Alliance (NASA).

From the outset, the court’s attitude had betrayed the judges’ reluctance to entertain the petition. They dismissed it and unanimously found that Kenyatta had been validly elected. They found no fault with anything that the electoral commission had done in the fresh election. NASA expressed sympathy with the court, saying that the judiciary had been intimidated but the judges too felt abandoned by the political players.

Kenyatta would be sworn in as president on 28 November 2017 at a stately but sparsely populated inauguration ceremony presided over by the Chief Justice. Would this judicial mea culpa suffice to heal the rift between the Judiciary and the Executive?

The full judgment, released on 11 December 2017, read in part: “The … petitioners have not discharged the burden of proof to the standard established by this Court. At no time, in our view, did the burden shift to the [first] and [second] respondents.”

The court tipped its hand by blaming the petitioners for the shortcomings of the IEBC. Although the petitioners made serious allegations against the IEBC and its capacity to conduct an election, in their ruling, the judges blamed the petitioners for failing to provide proof of the allegations.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

Law scholar Muthomi Thiankolu has faulted the Supreme Court for failing to appreciate the informational asymmetry between the IEBC and potential petitioners. He argues that given this imbalance, the court ought to adopt an inquisitorial rather than an adversarial approach in proceedings.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

In the 2013 petition, the Supreme Court had pronounced on the effect of a candidate withdrawing from a fresh election or dying after the nullification of an election; in such a case, a fresh poll having all the characteristics of a new election (such as fresh party nominations) would have to be held. In the November 2017 decision, the court walked away from that observation.

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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Politics

Dadaab: Playing Politics With the Lives of Somali Refugees in Kenya

Somali refugees in Kenya should not be held hostage by political disagreements between Mogadishu and Nairobi but must continue to enjoy Kenya’s protection as provided for under international law.

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Dadaab: Playing Politics With the Lives of Somali Refugees in Kenya
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For several years now, Kenya has been demanding that the UNHCR, the UN Refugee Agency, close the expansive Dadaab refugee complex in north-eastern Kenya, citing “national security threats”. Kenya has argued, without providing sufficient proof, that Dadaab, currently home to a population of 218,000 registered refugees who are mostly from Somalia, provides a “safe haven” and a recruitment ground for al-Shabaab, the al-Qaeda affiliate in Somalia that constantly carries out attacks inside Kenya. Threats to shut down have escalated each time the group has carried out attacks inside Kenya, such as following the Westgate Mall attack in 2013 and the Garissa University attack in 2015.

However, unlike previous calls, the latest call to close Dadaab that came in March 2021, was not triggered by any major security lapse but, rather, was politically motivated. It came at a time of strained relations between Kenya and Somalia. Kakuma refugee camp in Turkana County in north-western Kenya, is mostly home to South Sudanese refugees but also hosts a significant number of Somali refugees. Kakuma has not been included in previous calls for closure but now finds itself targeted for political expediency—to show that the process of closing the camps is above board and targets all refugees in Kenya and not only those from Somalia.

That the call is politically motivated can be deduced from the agreement reached between the UNHCR and the Kenyan government last April where alternative arrangements are foreseen that will enable refugees from the East African Community (EAC) to stay. This means that the South Sudanese will be able to remain while the Somali must leave.

Security threat

Accusing refugees of being a security threat and Dadaab the operational base from which the al-Shabaab launches its attacks inside Kenya is not based on any evidence. Or if there is any concrete evidence, the Kenyan government has not provided it.

Some observers accuse Kenyan leaders of scapegoating refugees even though it is the Kenyan government that has failed to come up with an effective and workable national security system. The government has also over the years failed to win over and build trust with its Muslim communities. Its counterterrorism campaign has been abusive, indiscriminately targeting and persecuting the Muslim population. Al-Shabab has used the anti-Muslim sentiment to whip up support inside Kenya.

Moreover, if indeed Dadaab is the problem, it is Kenya as the host nation, and not the UNHCR, that oversees security in the three camps that make up the Dadaab complex. The camps fall fully under the jurisdiction and laws of Kenya and, therefore, if the camps are insecure, it is because the Kenyan security apparatus has failed in its mission to securitise them.

The terrorist threat that Kenya faces is not a refugee problem — it is homegrown. Attacks inside Kenya have been carried out by Kenyan nationals, who make up the largest foreign group among al-Shabaab fighters. The Mpeketoni attacks of 2014 in Lamu County and the Dusit D2 attack of 2019 are a testament to the involvement of Kenyan nationals. In the Mpeketoni massacre, al-Shabaab exploited local politics and grievances to deploy both Somali and Kenyan fighters, the latter being recruited primarily from coastal communities. The terrorist cell that conducted the assault on Dusit D2 comprised Kenyan nationals recruited from across Kenya.

Jubaland and the maritime border dispute 

This latest demand by the Kenyan government to close Dadaab by June 2022 is politically motivated. Strained relations between Kenya and Somalia over the years have significantly deteriorated in the past year.

Mogadishu cut diplomatic ties with Nairobi in December 2020, accusing Kenya of interfering in Somalia’s internal affairs. The contention is over Kenya’s unwavering support for the Federal Member State of Jubaland — one of Somalia’s five semi-autonomous states — and its leader Ahmed “Madobe” Mohamed Islam. The Jubaland leadership is at loggerheads with the centre in Mogadishu, in particular over the control of the Gedo region of Somalia.

Kenya has supported Jubaland in this dispute, allegedly hosting Jubaland militias inside its territory in Mandera County that which have been carrying out attacks on federal government of Somalia troop positions in the Gedo town of Beled Hawa on the Kenya-Somalia border. Dozens of people including many civilians have been killed in clashes between Jubaland-backed forces and the federal government troops.

Relations between the two countries have been worsened by the bitter maritime boundary dispute that has played out at the International Court of Justice (ICJ).

The latest call to close Dadaab is believed to have been largely triggered by the case at the Hague-based court, whose judgement was delivered on 12 October.  The court ruled largely in favour of Somalia, awarding it most of the disputed territory. In a statement, Kenya’s President Uhuru Kenyatta said, “At the outset, Kenya wishes to indicate that it rejects in totality and does not recognize the findings in the decision.” The dispute stems from a disagreement over the trajectory to be taken in the delimitation of the two countries’ maritime border in the Indian Ocean. Somalia filed the case at the Hague in 2014.  However, Kenya has from the beginning preferred and actively pushed for the matter to be settled out of court, either through bilateral negotiations with Somalia or through third-party mediation such as the African Union.

Kenya views Somalia as an ungrateful neighbour given all the support it has received in the many years the country has been in turmoil. Kenya has hosted hundreds of thousands of Somali refugees for three decades, played a leading role in numerous efforts to bring peace in Somalia by hosting peace talks to reconcile Somalis, and the Kenyan military, as part of the African Union Mission in Somalia, AMISOM, has sacrificed a lot and helped liberate towns and cities. Kenya feels all these efforts have not been appreciated by Somalia, which in the spirit of good neighbourliness should have given negotiation more time instead of going to court. In March, on the day of the hearing, when both sides were due to present their arguments, Kenya boycotted the court proceedings at the 11th hour. The court ruled that in determining the case, it would use prior submissions and written evidence provided by Kenya. Thus, the Kenyan government’s latest demand to close Dadaab is seen as retaliation against Somalia for insisting on pursuing the case at the International Court of Justice (ICJ).

Nowhere safe to return to

Closing Dadaab by June 2022 as Kenya has insisted to the UNHCR, is not practical and will not allow the dignified return of refugees. Three decades after the total collapse of the state in Somalia, conditions have not changed much, war is still raging, the country is still in turmoil and many parts of Somalia are still unsafe. Much of the south of the country, where most of the refugees in Dadaab come from, remains chronically insecure and is largely under the control of al-Shabaab. Furthermore, the risk of some of the returning youth being recruited into al-Shabaab is real.

A programme of assisted voluntary repatriation has been underway in Dadaab since 2014, after the governments of Kenya and Somalia signed a tripartite agreement together with the UNHCR in 2013. By June 2021, around 85,000 refugees had returned to Somalia under the programme, mainly to major cities in southern Somalia such as Kismayo, Mogadishu and Baidoa. However, the programme has turned out to be complicated; human rights groups have termed it as far from voluntary, saying that return is fuelled by fear and misinformation. 

Many refugees living in Dadaab who were interviewed by Human Rights Watch said that they had agreed to return because they feared Kenya would force them out if they stayed. Most of those who were repatriated returned in 2016 at a time when pressure from the Kenyan government was at its highest, with uncertainty surrounding the future of Dadaab after Kenya disbanded its Department of Refugee Affairs (DRA) and halted the registration of new refugees.

Many of the repatriated ended up in camps for internally displaced persons (IDPs) within Somalia, with access to fewer resources and a more dangerous security situation. Somalia has a large population of 2.9 million IDPs  scattered across hundreds of camps in major towns and cities who have been displaced by conflict, violence and natural disasters. The IDPs are not well catered for. They live in precarious conditions, crowded in slums in temporary or sub-standard housing with very limited or no access to basic services such as education, basic healthcare, clean water and sanitation. Thousands of those who were assisted to return through the voluntary repatriation programme have since returned to Dadaab after they found conditions in Somalia unbearable. They have ended up undocumented in Dadaab after losing their refugee status in Kenya.  

Many refugees living in Dadaab who were interviewed by Human Rights Watch said that they had agreed to return because they feared Kenya would force them out if they stayed.

Camps cannot be a permanent settlement for refugees. Dadaab was opened 30 years ago as a temporary solution for those fleeing the war in Somalia. Unfortunately, the situation in Somalia is not changing. It is time the Kenyan government, in partnership with members of the international community, finds a sustainable, long-term solution for Somali refugees in Kenya, including considering pathways towards integrating the refugees into Kenyan society.  Dadaab could then be shut down and the refugees would be able to lead dignified lives, to work and to enjoy freedom of movement unlike today where their lives are in limbo, living in prison-like conditions inside the camps.

The proposal to allow refugees from the East African Community to remain after the closure of the camps — which will mainly affect the 130,000 South Sudanese refugees in Kakuma —  is a good gesture and a major opportunity for refugees to become self-reliant and contribute to the local economy.

Announcing the scheme, Kenya said that refugees from the EAC who are willing to stay on would be issued with work permits for free. Unfortunately, this option was not made available to refugees from Somalia even though close to 60 per cent of the residents of Dadaab are under the age of 18, have lived in Kenya their entire lives and have little connection with a country their parents escaped from three decades ago.

Many in Dadaab are also third generation refugees, the grandchildren of the first wave of refugees. Many have also integrated fully into Kenyan society, intermarried, learnt to speak fluent Swahili and identify more with Kenya than with their country of origin.

The numbers that need to be integrated are not huge. There are around 269,000 Somali refugees in Dadaab and Kakuma. When you subtract the estimated 40,000 Kenyan nationals included in refugee data, the figure comes down to around 230,000 people. This is not a large population that would alter Kenya’s demography in any signific ant way, if indeed this isis the fear in some quarters. If politics were to be left out of the question, integration would be a viable option.

Many in Dadaab are also third generation refugees, the grandchildren of the first wave of refugees.

For decades, Kenya has shown immense generosity by hosting hundreds of thousands of refugees, and it is important that the country continues to show this solidarity. Whatever the circumstances and the diplomatic difficulties with its neighbour Somalia, Kenya should respect its legal obligations under international law to provide protection to those seeking sanctuary inside its borders. Refugees should only return to their country when the conditions are conducive, and Somalia is ready to receive them. To forcibly truck people to the border, as Kenya has threatened in the past, is not a solution. If the process of returning refugees to Somalia is not well thought out, a hasty decision will have devastating consequences for their security and well-being.

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Politics

The Assassination of President Jovenel Moïse and the Haitian Imbroglio

As CARICOM countries call for more profound changes that would empower the Haitian population, Western powers offer plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country.

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The Assassination of President Jovenel Moïse and the Haitian Imbroglio
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On Wednesday 7 July 2021, the President of Haiti, Jovenel Moïse, was assassinated in his home. His wife was injured in the attack. That the president’s assassins were able to access his home posing as agents of the Drug Enforcement Agency of the United States (DEA) brought to the fore the intricate relationship between drugs, money laundering and mercenary activities in Haiti. Two days later, the government of Haiti reported that the attack had been carried out by a team of assailants, 26 of whom were Colombian. This information that ex-soldiers from Colombia were involved brought to the spotlight the ways in which Haiti society has been enmeshed in the world of the international mercenary market and instability since the overthrow of President Jean-Bertrand Aristide and the Lavalas movement in 2004.

When the French Newspaper Le Monde recently stated that Haiti was one of the four drug hubs of the Caribbean region, the paper neglected to add the reality that as a drug hub, Haiti had become an important base for US imperial activities, including imperial money laundering, intelligence, and criminal networks. No institution in Haiti can escape this web and Haitian society is currently reeling from this ecosystem of exploitation, repression, and manipulation. Under President Donald Trump, the US heightened its opposition to the governments of Venezuela and Cuba. The mercenary market in Florida became interwoven with the US Drug Enforcement Agency (DEA) and the financial institutions that profited from crime syndicates that thrive on anti-communist and anti-Cuba ideas.

But even as Haitian society is reeling from intensified destabilization, the so-called Core Group (comprising of the Organization of American States (OAS), the European Union, the United States, France, Spain, Canada, Germany, and Brazil) offers plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country. Elsewhere in the Caribbean, CARICOM countries are calling for more profound changes that would empower the population while mobilizing international resources to neutralize the social power of the money launderers and oligarchs in Haitian society.

Haiti since the Duvaliers

For the past thirty-five years, the people of Haiti have yearned for a new mode of politics to transcend the dictatorship of the Duvaliers (Papa Doc and Baby Doc). The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination. Since that revolution, France and the US have cooperated to punish Haiti for daring to resist white supremacy. An onerous payment of reparations to France was compounded by US military occupation after 1915.

Under President Woodrow Wilson, the racist ideals of the US imperial interests were reinforced in Haiti in a nineteen-year military occupation that was promoted by American business interests in the country. Genocidal violence from the Dominican Republic in 1937 strengthened the bonds between militarism and extreme violence in the society. Martial law, forced labour, racism and extreme repression were cemented in the society. Duvalierism in the form of the medical doctor François Duvalier mobilized a variant of Negritude in the 50s to cement a regime of thuggery, aligned with the Cold War goals of the United States in the Caribbean. The record of the Duvalier regime was reprehensible in every form, but this kind of government received military and intelligence assistance from the United States in a region where the Cuban revolution offered an alternative. Francois Duvalier died in 1971 and was succeeded by his son, Jean-Claude Duvalier, who continued the tradition of rule by violence (the notorious Tonton Macoute) until this system was overthrown by popular uprisings in 1986.

The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination.

On 16 December 1990, Jean-Bertrand Aristide won the presidency by a landslide in what were widely reported to be the first free elections in Haiti’s history. Legislative elections in January 1991 gave Aristide supporters a plurality in Haiti’s parliament. The Lavalas movement of the Aristide leadership was the first major antidote to the historical culture of repression and violence. The United States and France opposed this new opening of popular expression such that military intervention, supported by external forces in North America and the Organization of American States, brought militarists and drug dealers under General Joseph Raoul Cédras to the forefront of the society. The working peoples of Haiti were crushed by an alliance of local militarists, external military peacekeepers and drug dealers. The noted Haitian writer, Edwidge Danticat, has written extensively on the consequences of repeated military interventions, genocide and occupation in the society while the population sought avenues to escape these repressive orders. After the removal of the Aristide government in 2004, it was the expressed plan of the local elites and the external forces that the majority of the Haitian population should be excluded from genuine forms of participatory democracy, including elections.

Repression, imperial NGOs and humanitarian domination

The devastating earthquake of January 2010 further deepened the tragic socio-economic situation in Haiti. An estimated 230,000 Haitians lost their lives, 300,000 were injured, and more than 1.5 million were displaced as a result of collapsed buildings and infrastructure. External military interventions by the United Nations, humanitarian workers and international foundations joined in the corruption to strengthen the anti-democratic forces in Haitian society. The Clinton Foundation of the United States was complicit in imposing the disastrous presidency of Michel Martelly on Haitian society after the earthquake. The book by Jonathan Katz, The Big Truck That Went By: How the World Came to Save Haiti and Left Behind a Disaster, provides a gripping account of the corruption in Haiti. So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.

In 2015, Jovenel Moïse was elected president in a very flawed process, but was only able to take office in 2017. From the moment he entered the presidency, his administration became immersed in the anti-people traditions that had kept the ruling elites together with the more than 10,000 international NGOs that excluded Haitians from participating in the projects for their own recovery. President Moïse carved out political space in Haiti with the support of armed groups who were deployed as death squads with the mission of terrorizing popular spaces and repressing supporters of the Haitian social movement. In a society where the head of state did not have a monopoly over armed gangs, kidnappings, murder (including the killing of schoolchildren) and assassinations got out of control. Under Moïse, Haiti had become an imbroglio where the government and allied gangs organized a series of massacres in poor neighbourhoods known to host anti-government organizing, killing dozens at a time.

Moïse and the extension of repression in Haiti

Moïse remained president with the connivance of diplomats and foundations from Canada, France and the United States. These countries and their leaders ignored the reality that the Haitian elections of 2017 were so deeply flawed and violent that almost 80 per cent of Haitian voters did not, or could not, vote. Moïse, with the support of one section of the Haitian power brokers, avoided having any more elections, and so parliament became inoperative in January 2020, when the terms of most legislators expired. When mayors’ terms expired in July 2020, Moïse personally appointed their replacements. This accumulation of power by the president deepened the divisions within the capitalist classes in Haiti. Long-simmering tensions between the mulatto and black capitalists were exacerbated under Moïse who mobilized his own faction on the fact that he was seeking to empower and enrich the black majority. Thugs and armed gangs were integrated into the drug hub and money laundering architecture that came to dominate Haiti after 2004.

After the Trump administration intensified its opposition to the Venezuelan government, the political and commercial leadership in Haiti became suborned to the international mercenary and drug systems that were being mobilized in conjunction with the military intelligence elements in Florida and Colombia. President Jovenel Moïse’s term, fed by spectacular and intense struggles between factions of the looters, was scheduled to come to a legal end in February 2021. Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.

So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.

Since the removal of Aristide and the marginalization of the Lavalas forces from the political arena in Haiti, the US has been more focused on strengthening the linkages between the Haitian drug lords and the money launderers in Colombia, Florida, Dominican Republic, and Venezuelan exiles. It was therefore not surprising that the mercenary industry, with its linkages to financial forces in Florida, has been implicated in the assassination of President Moïse. The Core Group of Canada, France and the US has not once sought to deploy the resources of the international Financial Action Task Force (FATF) to penetrate the interconnections between politicians in Haiti and the international money laundering and mercenary market.

Working for democratic transition in Haiti

The usual handlers of Haitian repression created the Core Group within one month of Moïse’s assassination. Canada, France and the United States had historically been implicated in the mismanaging of Haiti along with the United Nations. Now, the three countries have mobilized the OAS (with its checkered history), Brazil and the European Union to add their weight to a new transition that will continue to exclude the majority of the people of Haiti. It has been clear that under the current system of destabilization and violence, social peace will be necessary before elections can take place in Haiti.

Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.

The continuous infighting among the Haitian ruling elements after the assassination was temporarily resolved at the end of July when Ariel Henry was confirmed by the US and France as Prime Minister. Henry had been designated as prime minister by Moïse days before his assassination. The popular groups in Haiti that had opposed Moïse considered the confirmation of Ariel Henry as a slap in the face because they had been demonstrating for the past four years for a more robust change to the political landscape. These organizations mobilized in what they called the Commission, (a gathering of civil society groups and political parties with more than 150 members), and had been holding marathon meetings to publicly work out what kind of transitional government they would want to see. According to the New York Times, rather than a consensus, the Core Group of international actors imposed a “unilateral proposal” on the people of Haiti.

Haiti is a member of CARICOM. The Caribbean community has proposed a longer transition period overseen by CARICOM for the return of Haiti to democracy. With the experience of the UN in Haiti, the Caribbean community has, through its representative on the UN Security Council, proposed the mobilization of the peacekeeping resources and capabilities of the UN to be deployed to CARICOM in order to organize a credible transition to democracy in Haiti. The nature and manner of the assassination of President Moïse has made more urgent the need for genuine reconstruction and support for democratic transition in Haiti.

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Politics

How Dadaab Has Changed the Fortunes of North-Eastern Kenya

Despite the hostile rhetoric and threats of closure, the presence of refugees in the camps in northern-eastern Kenyan has benefited the host communities.

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How Dadaab Has Changed the Fortunes of North-Eastern Kenya
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In the 1960s, Kenya had a progressive refugee policy that allowed refugees to settle anywhere in the country and to access education. This approach created in Kenya a cadre of skilled and professional refugees. However, the policy changed in the 1990s due to an overwhelming influx of refugees and asylum seekers escaping conflict in Somalia, Ethiopia and South Sudan. Kenya switched to an encampment policy for refugees, who were mainly confined to camps.

Although there are refugees living in urban and peri-urban areas elsewhere in the country, for over two decades, northern Kenya has hosted a disproportionate number of the refugees living in Kenya. The region has been home to one of the world’s largest refugee camps, with generations of lineage having an impact on the economic, social, cultural, and ecological situation of the region because of the support provided by the government and by non-governmental organisations (NGOs) in education, health and security services.

Mandera and Marsabit counties, both of which boarder with Ethiopia, Wajir County which borders with both Ethiopia and Somalia and, Garissa County which borders with Somalia, have hosted refugees and migrants displaced from their countries of origin for various reasons. In 2018, the town of Moyale, which is on the Ethiopian boarder in Marsabit County, temporarily hosted over 10,000 Ethiopians escaping military operations in Ethiopia’s Moyale District.    

Elwak town in Wajir County occasionally hosts pastoralist communities from Somalia who cross into Kenya seeking pasture for their livestock. While the movement of refugees into Marsabit and Wajir counties has been of a temporary nature, Garissa County has hosted refugees for decades.

Located 70 kilometres from the border with Somalia, the Dadaab refugee complex was established in the 1990s and has three main camps: Dagahaley, Ifo, and Hagadera. Due to an increase in refugee numbers around 2011, the Kambioos refugee camp in Fafi sub-county was established to host new arrivals from Somalia and to ease pressure on the overcrowded Hagadera refugee camp. The Kambioos camp was closed in 2019 as the refugee population fell.

According to the UN Refugee Agency, UNHCR, and the Refugee Affairs Secretariat (RAS), the Dadaab refugee complex currently hosts over 226, 689 refugees, 98 per cent of whom are from Somalia. In 2015, the refugee population in the Dadaab refugee complex was over 300,000, larger than that of the host community. In 2012, the camp held over 400,000 refugees leading to overstretched and insufficient resources for the growing population.

Under international refugee and human rights law, the government has the sole responsibility of hosting and caring for refugees. However, there is little information regarding the investments made by the Kenyan government in the refugee sector in the north-eastern region over time. Moreover, the government’s investment in the sector is debatable since there was no proper legal framework to guide refugee operations in the early 1990s. It was only in 2006 that the government enacted the Refugee Act that formally set up the Refugee Affairs Secretariat mandated to guide and manage the refugee process in Kenya.

While the Refugee Act of 2006 places the management of refugee affairs in the hands of the national government, devolved county governments play a significant role in refugee operations. With the 2010 constitution, the devolution of social functions such as health and education has extended into refugee-hosting regions and into refugee camps. While devolution in this new and more inclusive system of governance has benefited the previously highly marginalised north-eastern region through a fairer distribution of economic and political resources, there is however little literature on how the refugees benefit directly from the county government resource allocations.

The three north-eastern counties are ranked among the leading recipients of devolved funds: Mandera County alone received US$88 million in the 2015/2016 financial year, the highest allocation of funds after Nairobi and Turkana, leading to developmental improvements.

However, it can be argued that the allocation of funds from the national government to the northern frontier counties by the Kenya Commission on Revenue Allocation—which is always based on the Revenue Allocation table that prioritizes population, poverty index, land area, basic equal share and fiscal responsibility—may not have been taking the refugee population into account. According to the 2019 census, the population of Dadaab sub-county is 185,252, a figure that is well below the actual refugee population. The increase in population in the north-eastern region that is due to an increase in the refugee population calls for an increase in the allocation of devolved funds.

The three north-eastern counties are ranked among the leading recipients of devolved funds.

Dadaab refugee camp has been in the news for the wrong reasons. Security agencies blame the refugees for the increased Al Shabaab activity in Kenya, and even though these claims are disputed, the government has made moves to close down the camp. In 2016, plans to close Dadaab were blocked by the High Court which declared the proposed closure unconstitutional. In 2021, Kenya was at it again when Ministry of Interior Cabinet Secretary Fred Matiang’I tweeted that he had given the UNHCR 14 days to draw up a plan for the closure of the camp. The UNHCR and the government issued a joint statement agreeing to close the camp in June 2022.

The security rhetoric is not new. There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms. During the 554th meeting of the African Union Peace and Security Forum held in November 2015, it was concluded that the humanitarian character of the Dadaab refugee camp had been compromised. The AU statements, which may have been drafted by Kenya, claimed that the attacks on Westgate Mall and Garissa University were planned and launched from within the refugee camps. These security incidents are an indication of the challenges Kenya has been facing in managing security. For example, between 2010 and 2011, there were several IED (Improvised Explosive Devices) incidents targeting police vehicles in and around Dadaab where a dozen officers were injured or killed. In October 2012, two people working for the medical charity Médicins Sans Frontières (MSF) were kidnapped in Dadaab. Local television network NTV has described the camp as “a womb of terror” and “a home for al-Shabaab operations”.

There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms.

Security restrictions and violent incidents have created a challenging operational environment for NGOs, leading to the relocation of several non-local NGO staff as well as contributing to a shrinking humanitarian space. Some teachers and health workers from outside the region have refused to return to the area following terrorist attacks by Al-Shabaab, leaving behind large gaps in the health, education, and nutrition sectors.

However, despite the challenging situation, the refugee camps have also brought many benefits, not only to Kenya as a country but also to the county governments and the local host communities.

Education

According to the Intergovernmental Authority on Development (IGAD) half the refugee population in the IGAD member states are children of school-going age, between 4 and 18 years.

In Garissa, the education sector is one of the areas that has benefited from the hosting of refugees in the county because the host community has access to schools in the refugee camps. Windle Trust, an organisation that offers scholarships to students in secondary schools and in vocational training institutes, has been offering scholarships to both the refugees and the host communities. In July 2021, over 70 students benefited from a project run by International Labour Organisations (ILO) in partnership with Garissa county governments, the East African Institute of Welding (EAIW) and the Kenya Association of Manufacturers (KAM) to give industrial welding skills to refugees and host communities.

However, despite the measures taken by the Kenyan government to enrol refugees in Kenyan schools, there is a notable gap that widens as students go through the different levels of education. Statistics show that of the school-going refugee population, only a third get access to secondary education of which a sixth get to join tertiary institutions. This is well below the government’s Sustainable Development Goal (SDG) 4 target that seeks to ensure that all girls and boys complete free, equitable and quality primary and secondary education. This also reflects the situation of the host community’s education uptake. Other investments in the education sector that have targeted the host communities include recruitment and deployment of early childhood education teachers to schools in the host community by UNHCR and other non-governmental organizations (NGOs).

Non-governmental/intergovernmental support 

The presence of refugees has led to NGOs setting up and running projects in the camps. According to Garissa County’s Integrated Development Plan, there are over 70 non-governmental organisations present, with the majority operating around the Dadaab refugee complex and within the host communities. The UNHCR estimates that it will require about US$149.6 million to run its operations in Dadaab Camp this year. However, as of May 2021, only US$45.6 million—31 per cent of the total amount required—had been received.

The decrease in humanitarian funding has had an impact on the livelihoods of refugees and host communities in north-eastern Kenya.  According to the World Bank, 73 per cent of the population of Garissa County live below the poverty line. In the absence of social safety nets, locals have benefited from the humanitarian operations in and around the camp. The UNHCR reports that about 40,000 Kenyan nationals within a 50km radius of the Dadaab refugee camp ended up enrolling as refugees in order to access food and other basic services in the camps.

In 2014, the UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million worth of community assets since 2011. The presence of refugees has also increased remittances from the diaspora, and there are over 50 remittance outlets operating in the Dadaab camp, increasing economic opportunities and improving services. Using 2010 as the reference year, researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.

The UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million of community assets since 2011 since 2011.

To reduce overdependence on aid and humanitarian funding in running refugee operations, the County Government of Garissa developed a Garissa Integrated Socio-Economic Development Plan (GISEDP) in 2019 that provided ways of integrating refugees into the socio-economic life of the community to enhance their self-reliance. The European Union announced a Euro 5 million funding programme to support the socio-economic development plan, thus opening up opportunities for development initiatives including income generating activities such as the flourishing businesses at Hagadera market. The recent announcement of the planned closure of the camp has put these plans at risk.

A voice

The host community is increasingly involved in issues that affect both the locals living around the Dadaab refugee complex and the refugees themselves, with the voice of the community gaining prominence in decision-making regarding the county budget and sometimes even regarding NGO operations. NGOs periodically conduct needs assessments in and around the camp to guide the budgeting and planning process for subsequent years and the host community is always consulted.

Interest in governance issues has also increased. For example, between 2010 and 2015 the host community successfully lobbied for increased employment opportunities for locals in the UNHCR operations. With experience in the humanitarian field, some from within the host communities have secured positions as expatriates in international organizations across the globe, adding to increased international remittances to Garissa County.

Health

Research reveals that, compared to other pastoralist areas, health services for host communities have improved because of the presence of aid agencies in Dadaab. Hospitals managed by Médicins Sans Frontières and the International Red Cross in Dagahaley and Hagadera respectively are said to be offering better services than the sub-county hospital in Dadaab town. The two hospitals are Ministry of Health-approved vaccination centres in the fight against the COVID-19 pandemic.

Despite the massive investments made in the health sector by humanitarian organisations in and around Dadaab, both UNICEF and the World Health Organisation have identified the camp as an entry point for infectious diseases like polio and measles into Kenya. There was a confirmed case of WPV1 (wild poliovirus) in a 4-month-old girl from the Dadaab refugee camp in May 2013. This is a clear indication of the health risks associated with the situation.

Researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.

Other problems associated with the presence of the camps include encroachment of the refugee population on local land, leading to crime and hostility between the two communities. These conflicts are aggravated by the scramble for the little arable land available in this semi-arid region that makes it difficult to grow food and rear farm animals, leading to food shortages.

While it is important to acknowledge that progress has been made in integrating refugees into the north-eastern region, and that some development has taken place in the region, more needs to be done to realise the full potential of the region and its communities.  Kenya’s security sector should ensure that proper measures are put in place to enhance security right from the border entry point in order to weed out criminals who take advantage of Kenya’s acceptance of refugees. The country should not expel those who have crossed borders in search of refuge but should tap fully into the benefits that come with hosting refugees.

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