Legislating to Protect Refugees and Asylum Seekers in Kenya: A Note to the Legislator

While Kenya hosts more that 200,000 asylum seekers the country still lacks comprehensive domestic legislation that would otherwise guarantee the rights promised to asylum seekers by international refugee law treaties. Kenya is signatory to the United Nations Convention relating to the Status of Refugees, and its Protocol relating to the status of refugees. But since it follows the monist approach toward treaties, signing of a treaty per se cannot be the source of any legal rights, interests, liabilities or duties at the domestic level. Neither can it create any legitimate expectation that decision-makers will follow, or consider, when making decisions. At most, the signing remains a mere show of commitment to the rest of the world, that Kenya agrees in principle with a treaty's goals and ideals. This article traces the genesis of refugee protection and assistance at the end of World War I, arguing that initially refugee law and protection was Euro-centric and only targeted specific categories of trans-European refugees. Further, from 1920-1930, the refugee problem was seen as a passing cloud. Between 1930 and 1939, strategies changed from temporary approaches towards a more permanent solution that would substantively address the plight of trans-European refugees. Despite setbacks, refugee protection moves from the era of target-specific arrangements to all encompassing conventions, and refugee rights are further defined and prescribed. Yet few achievements are made in states that ratify the Conventions for two reasons: the rising xenophobia towards asylum seekers in Europe and, political events in Europe, especially the Third Reich, culminating in outbreak of the Second World War. Concrete steps toward writing a global treaty to protect refugees and asylum seekers were taken during the post-World War II era, beginning with the creation of United Nations, entrenching the High Commissioners Office into a statute, and culminating in passage of an international refugee treaty-Refugee Convention. This report demonstrates how the modern definition of the term "refugee" was shaped by the holocaust and cold war. Furthermore, the rising refugee situation in Europe and elsewhere, in the world, precipitated passage of the Refugee Protocol. This study concludes with specific legal and policy considerations.