Source: Human Rights Watch (HRW)

Date: 17 Jun 2010

Kenya's reputation for hospitality towards Somali refugees is turning sour. Two decades after they first started to flee the brutal conflict in their country, Kenya provides asylum to 325,000 registered Somali refugees—and probably an equal number who have not registered. No one doubts the weight of the burden. But the authorities' increasing demonization of these refugees—80 percent of whom are women and children— as a national security threat has made them among the most vulnerable victims of Kenya's notoriously corrupt and abusive police force.

Near Kenya's officially closed border with Somalia, police have free rein to intercept as many as possible of the estimated 10,000 mostly Somali asylum seekers who cross the border every month with the help of people smugglers. Making no distinction between women, children, and men, police often use violence, unlawful detention in appalling overcrowded conditions, and threats of deportation to extort money from them. Some police officers rape women near the border. During the first ten weeks of 2010, hundreds, if not thousands, of Somali asylum seekers unable to pay were unlawfully sent back to Somalia.

The widespread threat of police interception and abuses forces most asylum seekers to travel on small paths away from the main road between the border and the refugee camps, where common criminals (often described by asylum seekers as "men not wearing uniform") also prey upon them, raping women and stealing the little they have.

About half of all Somalis fleeing to Kenya register in the world's largest refugee settlement, made up of three overcrowded refugee camps near the town of Dadaab in north-east Kenya, now hosting almost 300,000 people. The other half make their way to Nairobi, Kenya's capital, where very few are able to register as refugees due to the limited capacity of the government and the United Nations High Commissioner for Refugees (UNHCR). In the camps, police responsible for protecting refugees sometimes detain, assault, and extort money from them. Police have also failed to investigate cases of sexual violence between refugees, leading to a climate of impunity for those responsible.

Kenya currently unlawfully confines refugees to camps, denying them their freedom of movement and choice of residence, in contravention of the 1951 Refugee Convention, although thousands have also registered in Nairobi. Under this policy, police arrest refugees travelling without (and at times with) permission, extort money, and sometimes take them to court in Garissa where they are fined or sent to prison.

Only by handing over money to police—either when intercepted in the border areas, or while detained in the Liboi, Dadaab, and Garissa police stations—can refugees pay their way out of the abuse and intimidation.

The systematic and widespread nature of the extortion racket and related abuses by police officers are a direct result of Kenya's three-year-old border closure and the related closure of a refugee transit center in the Kenyan town of Liboi, 15 kilometers from the border and 80 kilometers from the camps. The transit center previously served as a safe place where the vast majority of Somalis fleeing their country first sought refuge in Kenya and from where UNHCR transported them to the camps. Without it, police have turned the border closure to their advantage, setting up what in the words of a Kenyan who works with Somali refugees is "one big money-making machine." Kenyan authorities' increasingly anti-Somali political rhetoric, particularly after a Somali Islamist group's threat to attack the capital, Nairobi, has helped justify the police's abusive behavior against Somalis.

Police arresting newly arrived Somali asylum seekers incorrectly tell them they are unlawfully in Kenya and charge them with offenses under Kenya's Immigration Act which prohibits entry into Kenya without documents and a visa. But the Act does not apply to asylum seekers who, under Kenya's Refugee Act, have 30 days from the moment they enter the country to register as refugees with the authorities at the nearest office of the Kenyan Refugee Commissioner. For Somalis crossing overland from Somalia, that means the Dadaab camps.

International refugee and human rights law prohibit refoulement, the forcible return of refugees to persecution, of anyone to torture and, in Africa, of civilians to situations of generalized violence. Kenya has every right to regulate the presence of non-nationals on its territory and may therefore normally prevent certain people from entering or remaining in Kenya—including those viewed as a threat to its national security such as members of the Somali Islamist group al-Shabaab. But Kenya may not close its borders to asylum seekers and may not deport them, or registered refugees, back to Somalia.

The fact that police in the border areas allow intercepted asylum seekers to pay their way through checkpoints to reach the camps suggests that personal gain—not national security concerns—is the real reason police arrest, threaten, and falsely charge them with unlawful presence.

Although refugees are victims of police abuses in the border areas and the camps, they nonetheless rely on the police to protect them against crimes by private individuals, including the sexual violence against women and girls that has long plagued the camps and their surroundings. But women and girls who have suffered sexual violence describe an utterly inadequate police response to sexual violence.

The government maintains that police are instructed to conduct proper and timely investigations. However, survivors say their complaints are often ignored rather than investigated, at other times are put on hold while police ask them to produce evidence against the alleged perpetrator, or are abruptly dropped without explanation. In the rare event that the police arrest alleged attackers, survivors say that in most cases the police release them hours or days later and take no further action in investigating or prosecuting the offense. Many women say that alleged attackers have successfully bribed the police to prevent investigations from taking place or to secure their release if arrested.

Kenya's international and regional human rights commitments oblige the authorities to prevent, investigate, prosecute, and punish violence against all women—including refugee women—in Kenya. There has been important progress in the police's response to sexual violence during the camps' nearly two-decade-long existence. Sexual and gender-based violence cases can be prosecuted in a mobile court in Dadaab town every month and the Dagahaley police station has a gender desk to handle these cases. Two more gender desks are planned for Ifo and Hagadera camps. However, the government has not put in place the required police numbers, training, and supervision. Consequently, justice for sexual violence survivors in the camps remains the exception and impunity for perpetrators the rule.

Over a period of six days in the Dadaab camps in March 2010, Human Rights Watch interviewed 102 refugees about police abuses and sexual violence in and around the camps. Half of the interviewees spoke about police abuses, including excessive force leading to death and miscarriages, rape, whipping, beatings, and kicking. Fifteen said the police had arrested and detained them—together with around 220 other people—soon after they had entered Kenya. Eight said that the police had deported them, and 152 others, back to Somalia after they had failed to pay the police money. Despite the limited time Human Rights Watch had to conduct research in the camps, this number suggests that the abuses documented in this report are systematic and widespread.

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