42 CHAPTER TWO:
LITERATURE REVIEW
In this chapter I explore literature about Somali refugees, Somalia and the UNHCR. To contextualize the subject of repatriation, I trace the developments in Dadaab refugee camps since its inception in 1991.The relationship between Kenya and Somalia is also reviewed in detail. Further, the UN 1951Convention regime is also examined together with the subsequent protocols of 1967 that sought to expand its mandate. The Organization of African Unity Convention, Governing Specific Aspects of Refugee Problems in Africa of 1969 is also explored. Security challenges associated with hosting refugees are further discussed. The study establishes that often times refugees are relegated to the periphery in matters affecting them including repatriation. It is also established that most available literature regarding refugees are by humanitarian organizations and calls for academic research is suggested.
43 While this may have been a suitable definition in 1951, this definition was later to be revised by various regional instruments to suit their various emerging circumstances. For example, the Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional instrument adopted by the Organization of Africa Unity (OAU) in 1969, expands the UN definition to include people fleeing external aggression, internal civil strife, or events seriously disturbing public order in African countries86.
Regionally, this framework accepted the definition of the 1951 Refugee Convention and expanded it to include those compelled to leave their country owing to external aggression, occupation, foreign domination or events seriously disturbing public order.
At the time of adoption, the concern of the African states was in regard to refugees from territories that were still under colonial rule or occupation.87 The African Union‘s definition also recognizes non-state groups as perpetrators of persecution, and does not demand that a refugee shows a direct link between herself or himself and the future danger. It is sufficient that the refugee considers the harm sufficient to force her/him to abandon their home.
Some scholars view the refugee definition as envisaged by the 1951 UN Convention above as limited as it overlooked other reasons that may necessitate forced migration, like
86The Organization of African Unity Convention, Governing Specific Aspects of Refugee Problems in Africa, 10th September 1969, OAU Document CM/267/ Rev.1.
87Okoth-Obbo, G. (2001). Thirty years on: A legal review of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Refugee Survey Quarterly, Vol. 20, No. 1
44 social and economic rights abuses. For example, as Hyndman88notes, it was intended to apply primarily to refugees in post WWII Europe. Significantly, the 1951 Convention had minimized social and economic reasons for flight in determining the definition of a refugee, factors that may be more relevant in refugee-producing countries today than they were in post-war Europe. In Africa for example, drought and famine may cause the mass exodus of ‗economic‖ refugees. This happened in the 2011/2012 famine that forced 150,000 Somali refugees to cross the border into Kenya and became refugees in Dadaab.89
Indeed, it is virtually impossible to distinguish between a political and an economic refugee since the dangers inherent in Africa means that economic rights are frequently violated which puts people in danger. In Africa, political power is often used as a means of accumulating wealth. Those not in power are frequently marginalized, and their economic livelihoods90 ruined, leading to economic refugees.
The 1951 Convention Relating to status of refugee does not recognize economic or social refugees as it limits its definition of refugee to one fearing political persecution91.
88J. Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism, Minneapolis, University of Minnesota Press, 2000.p.8
89Refugee Consortium of Kenya(RCK), Asylum Under Threat – Assessing the protection of Somali refugees in Dadaab refugee camps and along the migration corridor, Nairobi, RCK with the support of Danish Refugee Council 2012,.p.7
90N. Cheeseman, ‗Re-evaluating multiparty politics in Africa on International Democracy Day‘, Daily Nation, 17 September 2017. Available www.nation.co.ke/oped/opinion/Re-evaluating-multiparty-politics-- in-Africa-/440808-4098662-11175gn/index.html(accessed 29 November 2017)
91The 1951 UN Convention Relating to Status of Refugees, 28 July 1958,United Nations Treaty, Vol. 189 No.
2545,p. 137
45 Attempts by developing countries to push for inclusion of socio-economic rights into a UN charter at the Bandung92 conference came under stiff resistance by the states in the industrialized developed world. That notwithstanding, refugees should however be treated as such regardless of the reasons of the flight. The complexities of this are now seen in the way in which the rights regime is practiced, rather than theorized.
Political and economic exclusion in the global arena, too, is not a novel idea. Africa, for instance, has in the recent past been pushing for an African representation93 in the coveted 5 member United Nations Security Council (UNSC) with veto powers. Citing exclusion on security matters, Africa is seeking to have a bigger say in determining security issues globally.
Under the international refugee law, one is only recognized as a refugee after entering another country. People fleeing internal or external aggression, but still within their national borders, are, on the other hand, referred to as Internally Displaced Persons (IDPs).
92 The Bandung conference was the first large scale Afro-Asian conference which took place on April 18-24, 1955 in Bandung in Indonesia. The conference aimed at promoting economic and cultural cooperation and to oppose colonialism or neocolonialism by any nation. Further details on, ‘Final Communique of the Asian-African Conference of Bandung (24 April 1955)‘The Ministry of Foreign Affairs, Republic of Indonesia (Ed.) Asia-Africa speak from BandungJakarta, 1955, pp.161-169.
93United Nations, ‗African Representation, future of veto power, inter-governmental process figure prominently in General Assembly Annual Debate on Security Council Reform‘, GA/11715 30 October 2015, General Assembly plenary, seventieth session,43rd&44th (AM &PM) Availablewww.un.org/press/en/2015/ga11715.doc.html(accessed 29 November 2017). See also G. Phiri,
‗African Nations push for permanent UNSC seat‘, Aljazeera, 26 September 2013. Available www.aljazeera.com/indepth/features/2013/09/african-nations-push-for-permanent-unsc-seat-
2013924133231925482.html
46 The 1951 United Nations Convention Relating to the Status of Refugees was focused on millions of refugees, who, at the time, had been displaced by the Second World War that had ravaged Europe between 1939 and 1945.Many countries at the time sympathized and empathized with the refugees hence many got a warm reception in their countries of refuge. Though refugees were received well in their countries of asylum in the late 1940‘s and early 1950‘s, this willingness was short-lived and it soon faded away with prolonged stays94. Host countries have become reluctant to welcome refugees because of the fear that the refugees are no longer seen as a short-term challenge, as was earlier thought in the 1940‘s during the Second World War. The unquestionable assumption in the 1940‘s was that refugees were in their host countries temporarily and that they would go back to their home countries as soon as the Second World War ended.95 As a result they received immense sympathy. For instance, when Palestinian refugees began flooding into their neighbouring Arab states as of spring of 1948 they received a warm welcome.
The prolonged refugee stay however put undue strain on already fragile economies and attitudes in the host countries began to shift96. In Africa, the earlier responses by African countries to the plight of refugees were characterized by immense sympathy and warm
94O. El-Abed, Unprotected Palestinians in Egypt since 1948. Ontario: Co-Published by Institute for Palestinian Studies, Washington DC and International Development Research Centre Ottawa, 2009, p.170.This is example of Palestinian refugees in Egypt.
95O. El-Abed, Unprotected Palestinians in Egypt since 1948. Ontario: Co-Published by Institute for Palestinian Studies, Washington DC and International Development Research Centre Ottawa, 2009),170.
96O. El-Abed, Unprotected Palestinians in Egypt since 1948. Ontario: Co-Published by Institute for Palestinian Studies, Washington DC and International Development Research Centre Ottawa, 2009, p.170.
47 welcome97.As refugee situations became more protracted in nature, host states became reluctant to host refugees as the problem was seen as long-term and hence complex.
Today, more than 7.2 million98 refugees are trapped in protracted refugee situations.
Some, like Milner and Loescher99even argue that the average length of a refugee or IDP‘s displacement is now approaching 20 years.
Hathaway attributes the shift in policy as occasioned by the changing context from that which it was initially contemplated in the mid 20th century. The convergence of interests that motivated the assimilation of refugees in host countries has largely withered away with time100. In Africa, the period beginning in the late 1980s and culminating in the 1990s, was marked by a shift in refugee policies, with less incentive on the part of states to receive refugees, sometimes rejecting them at the frontier, forcibly returning them or refusing to offer meaningful protection to those who manage to enter their territory101. From this policy shift, refugees are no longer welcomed nor celebrated. Writing on foreigners (refugees or economic migrants) in South Africa, for example, Landau argues that, ‗…non-South Africans ─ makwerekwere102in local vernacular ─ serve a dual purpose.
97P. Kirui, & J. Mwaruvie, ‗ The dilemma of hosting refugees: A focus on the insecurity in north-eastern Kenya‘, International Journal of Business and Social Science, vol.3,no.8, p.163..
98UNHCR, Sixty Years and Still Counting: Global Trends 2010. http://www.unhcr.
org/4dfa11499.pdf.2011.p3
99J. Milner, and G. Loescher, Responding to protracted refugee situations: Lessons from a decade of discussion.
RSC Policy Briefing Paper No.8.2011.p.3.
100 J. Hathaway, ‗Temporary Protection of Refugees: Threat or Solution‘, in Handmaker, J. et al (eds.) Perspectives on Refugee Protection in South Africa. Pretoria: Lawyers for Human Rights, 2001.pp41-49.
101 J. Hathaway, J. ‗Temporary Protection of Refugees: Threat or Solution‘, in Handmaker, J. et al (eds.) Perspectives on Refugee Protection in South Africa. Pretoria: Lawyers for Human Rights, 2001.pp41-49.
102Makwerekwere translates to ‗other other‘.
48 First, as scapegoats, they help preserve the post-apartheid project‘s legitimacy by providing a convenient explanation for widespread crime, disease and unemployment103‘. Negative attitude of South Africans in Johannesburg towards foreigners is replicated in almost all parts of the world where refugees and migrants are no longer celebrated.