RECONCILING NATIONAL SECURITY CONCERNS WITH REFUGEES’ RIGHT TO NON- REFOULMENT

Abstract

The non-refoulement principle is the hallmark of international refugee law. It is a basic principle that ensures security for refugees from returning to nations where persecution is feared. This principle is acknowledges as forming a crucial part of refugee law, human rights law and customary international law. Article 33 of the 1951 UN Convention on the Status of Refugees as read together with UN Convention Against Torture, international, regional and sub regional instruments to which Kenya is a signatory, embody the principle. Under domestic law, section 18 of the Refugees Act of 2006 protects the right to non-refoulement.

The essence of Kenya's rejection of the non-refoulement principle, however, started in 1998 when terrorists bombed the US embassy, killing 216 individuals. The bombers were thought to be members of the Al Qaeda party in Somalia. Terrorist attacks in Kenya include the 2013 Westgate Mall raid that killed 67 people and the 2015 Garissa University terrorist attack that killed 147 learners. The government decided that the reception of refugees in the country must come to an end because of these assaults that prejudice national security. The Kenyan government's choice regarding the deportation of all refugees back to their nation and the closing down of the Daadaab refugee’s camp raised a lot of controversy since the state intervention breached the non-refoulement principle.

The aim of this research is to determine whether in Kenya, domestic security and the nonrefoulement

law conflict. Furthermore, this research addresses whether Kenya fulfills its nonrefoulement

obligations and whether problems of national security can be resolved with the concept of non-refoulement. This paper ends with several recommendations for reconciling domestic safety with the concept of non-refoulement. This research concludes with multiple suggestions on how to reconcile national security with the non-refoulement principle. These recommendations include voluntary refugee repatriation, Individual prosecution of suspects of terror and adequate border screening of migrants before being permitted in the country.