Symbolic illustration of the tension between refugee camps and Kenyan national interests.

Kenya's Refugee Dilemma: Balancing Security, Human Rights, and Legal Obligations

Nico Varela in Law & Justice June 2025 • 4 min read.

"An in-depth look at Kenya's parallel legal regime on refugees, exploring the tension between national security concerns and the guarantee of rights."

Kenya, a nation with a long history of hosting refugees, finds itself at a crossroads. The delicate balance between ensuring national security and upholding the rights of those seeking asylum within its borders has become increasingly strained. This tension is reflected in what some observers describe as a 'parallel legal regime,' where the government's security-driven policies sometimes clash with international legal obligations and constitutional guarantees.

The Constitution of Kenya 2010 incorporates international law as part of its legal framework, specifically highlighting customary international law and ratified treaties. This commitment is enshrined in Articles 2(5) and 2(6), stipulating that international legal rules and conventions ratified by Kenya are integral to the law of the land. However, the practical application of these principles has been challenged by a series of government policies and directives aimed at managing the refugee population, particularly in the wake of increased security threats.

This article delves into the intricacies of Kenya's refugee policies, examining the evolution of its legal framework, the impact of security concerns on refugee rights, and the role of the Kenyan courts in mediating these competing interests. By analyzing key legal decisions, government directives, and scholarly perspectives, it seeks to provide a comprehensive understanding of the challenges and opportunities facing Kenya in its treatment of refugees.

How Does Kenya's Legal Framework Address Refugee Rights?

Symbolic illustration of the tension between refugee camps and Kenyan national interests.

Kenya's legal landscape regarding refugees is shaped by a complex interplay of international law, constitutional provisions, and domestic legislation. While the Constitution embraces international legal norms, the application of these norms is often filtered through the lens of national security concerns. This has led to instances where the rights of refugees are seemingly curtailed or restricted in the name of public safety.

The Refugee Act of 2006, while intended to provide a legal framework for the protection of refugees, has been criticized for reinforcing an encampment policy that restricts the movement and economic opportunities of refugees. This policy, which confines refugees to designated camps, has been justified by the government as a necessary measure to maintain security and prevent the influx of undocumented individuals into urban areas.

International Law: Kenya is party to key international instruments such as the 1951 Refugee Convention and its 1967 Protocol, as well as the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.
Constitutional Guarantees: The Kenyan Constitution guarantees fundamental rights and freedoms to all, including refugees, such as the right to human dignity, freedom of movement, and protection against discrimination.
Domestic Legislation: The Refugee Act of 2006 provides the legal framework for refugee status determination and the management of refugee affairs in Kenya.

Despite these legal safeguards, the implementation of refugee policies has been marked by inconsistencies and challenges. Government directives aimed at restricting the movement of refugees, limiting their access to urban areas, and capping the number of refugees allowed into the country have raised concerns about Kenya's commitment to its international legal obligations.

Finding a Sustainable Balance: The Path Forward for Kenya's Refugee Policy

Kenya's refugee policy stands at a critical juncture. The need to address legitimate security concerns must be balanced with the imperative to uphold the rights and dignity of refugees. Moving forward, a more nuanced and comprehensive approach is needed, one that integrates security considerations with human rights principles and international legal obligations. This requires strengthening legal frameworks, promoting community integration, and fostering greater collaboration between government agencies, international organizations, and civil society.

About this Article -

This article was crafted using a human-AI hybrid and collaborative approach. AI assisted our team with initial drafting, research insights, identifying key questions, and image generation. Our human editors guided topic selection, defined the angle, structured the content, ensured factual accuracy and relevance, refined the tone, and conducted thorough editing to deliver helpful, high-quality information.See our About page for more information.

This article is based on research published under:

DOI-LINK: 10.4314/ldd.v21i1.3, Alternate LINK

Title: An Evaluation Of Kenya’S Parallel Legal Regime On Refugees, And The Courts’ Guarantee Of Their Rights

Subject: General Medicine

Journal: Law, Democracy & Development

Publisher: Academy of Science of South Africa

Authors: Robert Doya Nanima

Published: 2017-09-14

Everything You Need To Know

How does Kenya's Constitution and other domestic legislation, such as the Refugee Act of 2006, align with international laws regarding the protection of refugees?

Kenya's legal framework addressing refugee rights is a complex mix. The Constitution of Kenya 2010 incorporates international law through Articles 2(5) and 2(6), making ratified treaties part of the law. However, the application of these principles faces challenges due to security concerns. The Refugee Act of 2006 aims to protect refugees, but its encampment policy restricts their movement and economic opportunities. Kenya is also a signatory to key international instruments, such as the 1951 Refugee Convention and its 1967 Protocol, along with the OAU Convention. The Constitution guarantees rights to all, including refugees, but government directives sometimes undermine these safeguards.

What is meant by the term 'parallel legal regime' in the context of Kenya's policies towards refugees, and what implications does it have for refugee rights?

The 'parallel legal regime' in Kenya refers to the tension between the country's international legal obligations and constitutional guarantees regarding refugees, and the government's security-driven policies. While Kenya's Constitution incorporates international law, government policies, especially after increased security threats, have sometimes clashed with these obligations. This creates a situation where refugee rights are restricted in the name of national security, leading to inconsistencies in the implementation of refugee policies.

What are the specific provisions outlined in the Refugee Act of 2006, and how do these provisions impact the daily lives and opportunities available to refugees residing in designated camps?

Kenya's Refugee Act of 2006 provides the legal framework for refugee status determination and the management of refugee affairs. However, it has been criticized for reinforcing the encampment policy. This policy restricts refugees' movement and economic opportunities by confining them to designated camps. The government justifies this policy as a necessary measure to maintain security and prevent undocumented individuals from entering urban areas. The Refugee Act of 2006 coexists alongside other legal instruments and security considerations.

In what specific ways does Kenya attempt to balance its national security concerns with the internationally recognized human rights of refugees seeking asylum within its borders?

Kenya balances national security concerns with the human rights of refugees through a complex and often strained process. While the Constitution guarantees fundamental rights to all, including refugees, government directives aimed at restricting movement and limiting access to urban areas reflect security imperatives. These measures are often justified as necessary for public safety and to prevent the influx of undocumented individuals. However, these policies can conflict with international legal obligations and raise concerns about Kenya's commitment to human rights principles. Finding a sustainable balance requires integrating security considerations with human rights principles and international legal obligations.

What steps can Kenya take to create a more sustainable and humane refugee policy that respects the rights and dignity of refugees while also addressing legitimate security concerns?

To foster a more effective refugee policy, Kenya needs to strengthen its legal frameworks by aligning domestic legislation with international standards. Kenya should promote community integration by allowing refugees greater freedom of movement and economic opportunities. Further collaboration between government agencies, international organizations, and civil society can facilitate a more nuanced and comprehensive approach. By integrating security considerations with human rights principles and international legal obligations, Kenya can create a more sustainable and humane refugee policy.