Could Kenya be the next refugee rights champion?

Hadija*, a Somali in her mid-40s, has been living in Kenya’s Dadaab refugee camp for more than two decades. She has been married to a Kenyan citizen for 18 years and the couple have four children together. Her children, who are registered as Kenyan citizens, can leave the confines of the camp to access school, healthcare, and to visit their father – something Hadija is unable to do, despite holding refugee status.

She is not alone in this predicament. Kenya generously hosts more than 700,000 refugees who have moved from protracted crises in the Great Lakes, Somalia, Ethiopia, and other neighbouring countries. The majority live in camps: Kakuma and Kalobeyei in Turkana County, and Dadaab in Garissa County.

Many have lived in Kenya for over a decade, and many were born in the country. But Kenya’s strict encampment policy, coupled with contradictory laws, means that refugees are kept in a perpetual limbo – never knowing life outside the camps and with limited options for meaningful integration or other durable solutions.

Hadija should have the right to apply for citizenship. According to Article 15(1) of Kenya’s constitution, a person married to a citizen for seven or more years is entitled to apply to be registered as a citizen. Kenya’s newly adopted Refugee Act also states that refugees must be granted the same rights and privileges as other foreign nationals in Kenya.

However, in contradiction of both the constitution and the Refugee Act, Kenya’s Citizenship and Immigration Act does not consider refugee IDs as proof of lawful residence, denying refugees the right to apply for citizenship in the same manner as other foreign nationals. 

The only other avenue Hadija would be able to pursue in accordance with the Immigration Act would be to apply for a ‘Class M’ work permit, which would require her to find an employer willing to sponsor her and provide a detailed letter to the director of Immigration Services, among other things. This is something that is impossible to do when living in a camp.

And while Hadija is lucky in that her children are registered as Kenyan citizens, affording them rights that she does not have, many other children born to mixed Kenyan and refugee unions are unable to access this right, despite it also being clearly stated in the constitution.

Progressive policies but shaky plans

While the Kenyan government has not yet addressed citizenship rights for refugees, it has shown signs of adopting more progressive refugee policies in recent years.

Together with the UN’s refugee agency (UNHCR) and its development partners, it has drafted a multi-year, multi-million dollar ‘Shirika Plan’, which aims to transform Kenya’s sprawling camp-cities into self-reliant open settlements, where refugees can live, work, and set up businesses among their local hosts.

The plan will give camp residents, like Hadija, an opportunity to live with her family, beyond camp fences, and more generally expand the protection space for refugees.

Kenya’s 2021 Refugee Act, which the Shirika Plan complements, also affords refugees numerous rights that were previously unavailable. These include: employment in a profession or practice recognised by the Kenyan authorities; giving refugee ID cards the same status as “Alien Card” issued to other foreign nationals (making the renewal process less cumbersome); and, for refugees from the East African Community (EAC), the option to give up their refugee status and become EAC citizens instead.

These expanded rights bring promise. But they still remain limited in scope. For example, even though refugees can have their profession or practice recognised, their documents would need to be certified by the Kenyan National Qualifications Authority.

The process would involve getting permission to leave the camp and travel to the capital, Nairobi, which would be both challenging and expensive for refugees with little to no income. Similarly, the process for refugees from the EAC to renounce their refugee status remains unclear, including what rights they would have if they did so.

Freedom of movement is also still curtailed under the Refugee Act, with refugees only able to reside in “designated areas”, limiting prospects for meaningful integration across the country. Movement outside of these areas, without adequate permission, would result in either a fine of around $1,500 or up to five years imprisonment.

This means the majority of refugees would only be able to live and work in and around Garissa and Turkana counties – two areas that are economically deprived and that currently lack sufficient investment.

Civil society pushing beyond the margins

While the Shirika Plan continues to be developed, civil society groups are challenging inconsistencies in Kenya’s laws to expand the rights of refugees and offer meaningful integration.

Haki na Sheria, an NGO that seeks to empower marginalised communities in northern Kenya, has filed two petitions at the Garissa High Court. The first, filed in November 2022, focuses on access to citizenship for children born to a refugee and a Kenyan parent. The second, filed in February 2023, focuses on rights to citizenship for refugee spouses, like Hadija, who are married to a Kenyan citizen.

When it comes to its refugee population, the government remains cagey, despite hundreds of thousands of refugees only knowing Kenya as their home and possessing skills that could benefit the country.

In February 2023, Kenya’s oldest legal empowerment organisation, Kituo cha Sheria, also filed a petition in Nairobi’s High Court. The petition requests that the court declares sections of the Citizenship and Immigration Act unconstitutional and calls for refugees to gain the right to apply for permanent residency or citizenship like other foreign nationals.

All three petitions are awaiting hearings. If successful, they would have a significant impact on the lives of refugees in Kenya – paving the way for them to move freely, access services, and fully contribute to its economy.

Where there’s political will, there’s a way

In recent years, Kenya’s leaders have shown generosity towards granting citizenship to other long-standing minority groups.

In July 2023, President William Ruto awarded around 7,000 people from the Pemba community – who had settled in Kenya from Zanzibar prior to independence – the right to citizenship.

Prior to this, in 2016 and 2021, then-President Uhuru Kenyatta also granted the Makonde, Shona, and Warwanda communities – originally from Tanzania, Zimbabwe and Rwanda, respectively – citizenship after decades of being stateless. These examples of the government’s generosity have put the country at the forefront of addressing statelessness.

Yet when it comes to its refugee population, the government remains cagey, despite hundreds of thousands of refugees only knowing Kenya as their home and possessing skills that could benefit the country.

As countries in the Global North repeatedly disrespect international refugee protection as part of a wider disavowal of international law, many countries in the Global South, like Kenya, have generously hosted hundreds of thousands of refugees for decades.

But many refugees living in protracted crises have little prospect of meaningful integration. Kenya has an opportunity to do more.

*Name changed to protect her identity.