This chapter explores and examines the roles and responsibilities of the Kenya-Somalia UNHCR (tripartite parties) in ensuring successful voluntary repatriation of Somali refugees and in promoting stability and security in the region. The Tripartite Agreement signed between Kenya, Somalia and the UNHCR on 10th November 2013 envisaged certain responsibilities among the tripartite parties. This was in order to achieve the objective of the agreement to provide ‗a legal framework for the safe and dignified voluntary repatriation of Somali refugees from the Republic of Kenya and their reintegration in the Federal Republic of Somalia.‘429 Since Somali refugees came to Kenya in 1991, the government of Kenya has rejected possibility of integrating Somali refugees.
This is because Somalis are viewed as security threat in Kenya as will be discussed further in chapter 3.
Implicit in the discourse, promoting voluntary repatriation in the 1990‘s, is the notion that the return to the country of origin is the most ―natural‖ outcome of exile and, as such, it is also the least problematic solution.430Increasingly established as the most viable solution
429 This is according to article 2 of the Tripartite Agreement signed between The Government of The Republic of Kenya, the Government of The Federal Republic ff Somalia and The United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees Living in Kenya.
430M. Eastmond, Reconstruction and the Politics of Homecoming: Repatriation of Refugees in Cambodia, Working Paper no. 1, Department of Social Anthropology , Göteborg University, April 2002, p.2
151 for refugees, repatriation has come to be designated by the international community of states and the UNHCR as the ideal solution to the global refugee problem431and especially when dealing with large numbers of refugees.
This, however, does not imply that repatriation is workable or straight forward as the most preferred solution to the refugee problem. In fact, the few in-depth or ethnographic studies focusing on repatriation (most of them from African contexts) suggest that far from being a simple solution, return is often a complex process and the outcome is far from given.432The problem is both political and perceptual. It is political in the sense that repatriation seem to be less problematic politically as refugees return to their original place. The perception of return presupposes a less politically complex route for many actors hence the view that is the most appropriate or preferred. In essence, however, repatriation is dynamic and complex and not simplistic as it may sound. Indeed, Bradley has noted that it is important to further research on repatriation as it has not received a
431V. Ullom, ‗Voluntary Repatriation of Refugees and Customary International Law‘, Denver Journal of International Law and Policy, Spring, 2001. Chimni, B., ‗From resettlement to involuntary repatriation:
Towards a critical history of durable solutions to refugee problems‘, Refugee Survey Quarterly, vol.23, no.1, 2004, pp.55-73. Omata, N., ‗Struggling to Find Durable Solutions: Liberian Refugees in Ghana‘, New Issues in Refugee Research, Geneva, UNHCR Policy Development and Evaluation Service,
Research Paper no.234, 2012. United Nations High Commissioner for Refugees. (1996). Handbook on voluntary repatriation: International protection. Geneva, Switzerland, UNHCR. Takahashi, S., ‗The UNHCR handbook on voluntary repatriation: The emphasis of return over protection‘, International Journal of Refugee Law, vol.9, no.4, 1997, pp.593-612.
432T. Allen, and H. Morsink, When refugees go home, Geneva, UNRISD, 1994. Allen, T. and D. Turton,
‗Introduction‘. In Allen, T. (ed.) In Search of Cool Ground. War, Flight &Homecoming in Northeast Africa, Geneva, UNRISD, 1996. Black, R. and K. Koser, The End of the Refugee Cycle? Oxford, Berghahn, 1999.
152 adequate attention from researchers. This is despite a significant shift433 of policy on refugees towards repatriation as the preferred solution. This preference of repatriation comes with a series of implications for refugees who may not be able to challenge this move.
The international refugee regime is operating at a challenging time as the absolute number of refugees worldwide has significantly increased, as well as the incidences and length of protracted refugee situations (PRS)434. At the end of 2014, 14.4 million refugees were under the mandate of the United Nations High Commissioner for Refugees435. Of this number, 6.4 million were in a protracted situation 436.Protracted (prolonged) refugee situations are refugee problems unresolved within 5 years. The Somali refugees in Dadaab, Kenya, are a classical example of a protracted refugee situation that has taken 27 years and remains unresolved. Protracted refugee situations pose many hardships for refugees as they ‗find themselves in a long-lasting and intractable state of limbo. Their
433M. Bradley, Refugee repatriation: Justice, responsibility and redress. Cambridge, UK: Cambridge University Press, 2013,p.8
434 A PRS is understood in this dissertation as a situation when refugees are in exile for five or more years after being displaced and a durable solution is not imminently possible (UNHCR, Excom, 2009).
435United Nations High Commissioner for Refugees, Global trends report 2014. Geneva, Switzerland, Division of Programme Support and Management, 2015,p.2
This number excludes Palestinian refugees who are under the protection of the United Nations Relief and Works Agency (UNRWA).
436 This statistic uses the definition of a PRS as ‗a situation in which 25,000 or more refugees of the same nationality have been in exile for five years or longer in a given asylum country‘ (UNHCR, 2015a, p. 8).
153 lives may not be at risk, but their basic rights and essential economic, social and psychological needs remain unfulfilled after years in exile.‘437
The OAU Convention may be credited with having been the first international instrument to codify, in treaty terms, the principles on the voluntary repatriation of refugees. The relevant provisions are contained in Article V which states that:
1. The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will.
2. The country of asylum, in collaboration with the country of origin, shall make adequate arrangements for the safe return of refugees who request repatriation.
3. The country of origin, on receiving back refugees, shall facilitate their resettlement and grant them the full rights and privileges of nationals of the country and subject them to the same obligations.
4. Refugees who voluntarily return to their country shall in no way be penalized for having left it for any of the reasons giving rise to refugee situations. Whenever necessary, an appeal shall be made through national information media and through the Administrative Secretary General of the OAU, inviting refugees to return home and giving assurance that the new circumstances prevailing in the country of origin will enable them to return without risk and to take up a normal and peaceful life without fear of being disturbed or punished and that the text of such appeal should be given to refugees and clearly explained to them by their country of asylum.
437United Nations High Commissioner for Refugees, ‗Protracted refugee situations', Refugee Survey Quarterly, vol.24, no. 1, 2005, p.150.
154 5. Refugees who freely decide to return to their homeland as a result of such assurance or their own initiative shall be given every possible assistance by the country of asylum, the country of origin, voluntary agencies and international and inter-governmental organizations to facilitate their return438.
While it is worthwhile to appreciate that the provisions of the OAU Convention are comprehensive, to a large extent its implementation is dependent on the good-will of individual states. The dynamics of individual refugee situations, the nature and extent of conflict, the interests of the state of origin, the interests of the host state and those of the international organizations led by the UN refugee agency influence the manner and the processes involved in the implementation of the repatriation provisions. Compromise is therefore common with all parties lobbying in order to protect their interests as far as possible.
In the case under study, the Government of Kenya, SFG and the UNHCR signed a Tripartite Agreement on 10th November 2013 which was to be a roadmap for the voluntary repatriation of Somali refugees. It has however emerged that the Tripartite parties read from a ‗different script‘439 when it came to interpretation of the TA as they could not agree on the appropriate time to execute massive returns considering the
438OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Adopted on 10 September 1969 by the Assembly of Heads of State and Government. CAB/LEG/24.3. It entered into force on 20 June 1974.
439K. Kelley, ‗UNHCR re-emphasizes stance on mode of repatriation of refugees‘, Daily Nation, 19th September, 2016.Available at https://www.nation.co.ke/news/UN-responds-to-claims-of-forceful- repatriation-of-refugees/1056-3385964-format-xhtml-nvrxmaz/index.html[Accessed 6th February, 2018]
155 volatile in(security)situation in Somalia. While Kenya preferred a massive repatriation that could have seen Dadaab closed by end of May 2017440, the UNHCR preferred a more staggered voluntary repatriation with no ‗time-bounds‘441. As the findings from interviews of various stakeholders suggest, the whole process of repatriation is a complex one and its dynamics cannot be merely confined to the contents of the Tripartite Agreement.
The UNHCR has pursued three durable solutions for refugees in the form of integration, resettlement and repatriation. These may in practice be implemented as Development through Local Integration (DLI), Resettlement, and the 4R‘s: repatriation, reintegration, rehabilitation, reconstruction.442 The first is integration where refugees integrate with local communities in the host state. This requires the willingness of refugees to integrate and the permission from the host state to do so. It works better when refugees and locals share many similar characteristics such as language and religion among others. Second, a durable solution is resettlement where refugees are resettled in a ‗third‘ country. This means the refugee is neither returning to the home country (first country from which they fled) nor integrate in the host state(second country that they fled to).Instead, a willing country(third country) offers to grant them asylum, which may, or not, include an offer of
440 ‗Kenyan closure of Dadaab refugee camp blocked by high court‘, BBC, 9th February, 2017.Available athttp://www.bbc.com/news/world-africa-38917681[Accessed 6th February, 2018]
441K. Kelley, ‗UNHCR re-emphasizes stance on mode of repatriation of refugees‘, Daily Nation, 19th September, 2016.Available at https://www.nation.co.ke/news/UN-responds-to-claims-of-forceful- repatriation-of-refugees/1056-3385964-format-xhtml-nvrxmaz/index.html[Accessed 6th February, 2018]
442United Nations High Commissioner for Refugees, Framework for durable solutions for refugees and persons of concern, Geneva, Core Group on Durable Solutions, 2003.
156 citizenship. Statistics indicate that very few refugees (about 1%) benefit from resettlement in a third country and resettlement is considered a ‗rare solution to refugee crises‘443. The UNHCR report indicates that there ‗were 17.2 million refugees of concern to UNHCR around the world at the end of 2016, but less than one per cent were resettled that year‘444.The third durable solution is repatriation where refugees return to their home country voluntarily. However, solutions are not easily achievable as they are largely dependent on the conditions in the countries of origin, affected by the policies of asylum and donor states, and the level of burden sharing.445
In essence therefore, the TA of 10th November 2013 is just the beginning of a long process of seeking a permanent solution to Somali refugees in Kenya and may not be signaling the end of the Somali refugee problem in Kenya. While the parties to the TA committed to the fulfillment of certain obligations as per the TA, the realization of these commitments remains elusive and has often been a source of a diplomatic incident among various stakeholders in the refugee regime.
443M. Bradley, Refugee repatriation: Justice, responsibility and redress. Cambridge, UK: Cambridge University Press, 2013,p.1
444http://www.unhcr.org/resettlement.html[Accessed 6th February, 2018]
445 Although the definition of burden sharing has changed over time, it generally refers to financial assistance and the resettlement of refugees to a third country, from often low-income countries that disproportionately carry the burden of hosting refugees (Boswell, 2003). This may also include material and financial assistance to host states meant to ease the ‗burden‘ they are shouldering as a result of hosting refugees.
157 This chapter explores the obligations of the parties in the TA, through the views of various stakeholders on the ground in order to examine the ideal roles of various parties as envisaged in the TA viz a viz the reality of such commitments in practice.