KENYA POLICY ON SOMALIA REFUGEE A DIPLOMATIC GAMBLE

BY kotonya yogo, Advocate

The Minister for Foreign affairs offered a remark that has changed the manner in which Kenya is considered in the international arena.

Kenya has played a major role in fostering conflict resolution and post conflict
negotiations in neighboring Sudan and Somalia with considerable success. The
Government of Sudan has had protracted civil war that ended when the government of Kenya intervened with a diplomatic move.

The republic of Somali has also had its share of sectarian wars. The country
situated in the horn of Africa has been without a functioning government since
1991. War Lords have had their day before the coming of the Islamic Courts Union (ICU). Despite of the Kenyan government's effort to help model a governmental structure in Somalia, the lawlessness in that country has never been promising.

In the run-up to the end of 2006, the Ethiopian government has tried to seize
major towns from the Islamic Militia. The Ethiopian prime minister is reported
to have defended his stance that his troops were fighting in Somali to defend
its sovereignty against terrorists and anti Ethiopians. Fighting between the
transitional National government (TNG) backed by Ethiopian troops and forces
loyal to ICU stretches to over 500 km (300 miles)

Central Somali towns where fighting has erupted in the past include: Galkayo,
Bandiradley, Adado, Buloburte,Baleddweyn, Baidoa, GalgudIn the south Mogadishi (commonly known as Hamar),Kalakayo,Baidoa. Indeed Somali has had Generalised violence to which The African Union (AU) acknowledges that Ethiopia had the right to intervene militarily in Somalia as it felt threatened by the Islamic Militia Operating there. It had purportedly given ample warning that it felt threatened by the presence of the expanding control of the ICU in Somalia. The recent American air strikes acknowledge the presence of war.

For all situations of War like these, Civilians and Combatants have a
traditional war custom. Civilians caught in the cross fire are expected to be
advanced the fullest of their Human rights. Prisoners of war and combatants
alike are to be treated with the respect they deserve. Such prisoners of war are
not to be subjected to any forms of torture by all standards.

The presence of Humanitarian Aid workers who mingle in the cross fire with the noble reason of helping civilian populace otherwise held in the cross fire are
treated with sufficient diplomatic immunity. In such generalized violence or
force majeurie, Humanitarian workers help all and sundry: Injured combatants,
civilians, displaced persons and even prisoners of war.

In certain cases when the general populace has foreseen danger, for fear of
being affected by such generalized violence, its common knowledge for the
commonwealth to contemplate fleeing to another country: This is a basic human
right  that has been universally been established and practiced over along
period of time.

Such persons re-locating due to fear of being persecuted or in any way departing from their country of origin for fear of being harmed in any way due to their race, religion, sex or belonging to a particular political group or opinion
whose country cannot provide protection are actually refugees. They at the very instance asylum seekers. This as visited with the 1951 Convention and its 1967 protocol is augmented by the OAU 1969 Convention.

Persons often choose the protection of other countries and arrive at the port of
entry without valid travel or mandatory immigration documents. They are more
often than not in possession of forged papers. When asylum seekers one flee
their persecutors, they exploit every necessary means to get out of danger. As
we may call them persons with no paper, they are often subjected to suspicion
and mistrust.

Asylum seekers are nevertheless supposed to be given the chance to assert their asylum claims as is required by all international standards however frivolous they may occur. The rationale hereafter to that discussion is to accord the Individual applicant for asylum time to re-invent him/herself in cases where
they are disoriented due to the situation in the country of origin. Such persons
sometimes happen to be survivor of torture. Such applications are supposed to
made immediately upon the port of entry or within a reasonable time after entry
to the host country.

Owing to the foregoing the host country is not expected by all means to send
back the asylum seeker back to the country of origin. Sending an asylum seeker who asserts a well founded fear of being persecuted and is not willing to rely on the protection of his country of origin is a concerted breach of a
fundamental Human Right. This usage has developed for a long period of time in the international spheres of relations between countries.

This is an established principle [non- refoulment] that has adopted the jus
cojens nature. That this practice has developed and accepted by the
international community as a whole, as a norm, no derogation can be permitted as may be visited with Article 53 and 64 of the Vienna convention on the law of
treaties.

In view of this discussion, Kenya has rolled out a policy to force asylum
seekers at its borders with Somalia to be turned back .It has ordered the
closure of the border ports. It has been reported that the over 400 asylum
seekers sent back to Somalia consist mostly of children and women as opposed to young single men with bruises.

As a matter of burden sharing, Kenya has to re-establish its stance on the
principle of international sharing of responsibility. Remember you can not turn
back a tsunami but you call for support when a tsunami visits. We are
susceptible to migration hence Kenya is mandated as a matter of public interest
to help our Somalia brothers and sisters.