3 - Using Human and Refugee Rights to Resist Encampment

Summary

This chapter examines forced encampment litigation in Kenya. Refugees living in urban areas resisting facing the prospect of relocation to a refugee camp, as well as refugees living in camps seeking permission to leave have initiated these cases. I examine how judges use human rights in the Kenyan Constitution and rights in the Refugee Convention as prisms to articulate the functions and nature of refuge. I show that Kenyan courts have understood refuge as a process as well as a human rights remedy that must allow refugees to live a liveable life in the present, have hope for the future and heal from past trauma. Judges arrive at these sophisticated understandings of refuge when they identify and reflect on irreducible aspects of refugeehood. However, in more recent cases, Kenyan judges instead focus on the uniqueness of the protection from refuge litigant. This results in conceptualising refuge as a limited commodity that, akin to welfare, must be given to those most in need or most deserving. Nevertheless, a feminist analysis indicates that in identifying the anomalous refugee, Kenyan courts have addressed protection concerns relating to gender, age and disability in a sensitive and nuanced manner.