Securitisation of Refugee Protection: The Judiciary’s Role in the Protection of the Rights of Refugees

Abstract

This judgment rewriting is a tale of three Kenyan judicial decisions regarding refugees and asylum-seekers. The judgment rewritten is the 2017 Court of Appeal’s decision in Attorney General v. Kituo Cha Sheria & 7 others (Kituo Cha Sheria II) which upheld a 2013 decision of the High Court in Kituo Cha Sheria & 7 others v. Attorney General (Kituo Cha Sheria I) quashing a Government Directive issued to relocate refugees living in urban areas to refugee camps. The petitioners challenged the Government Directive alleging it violated the rights of refugees living in Kenya. A third decision from 2014, Samow Mumin Mohamed & 9 others v. Cabinet Secretary Ministry of Interior Security and Co-Ordination & 2 others (Samow), ostensibly abrogated the protections afforded in Kituo Cha Sheria (I). The securitisation of refugee protection is a major theme across these decisions. Securitisation was briefly addressed in the Kituo Cha Sheria decisions as a technical matter requiring procedural precision for its validity. However, in their scrutiny of securitisation, the Courts neglected to highlight the human rights concerns and the vulnerability of refugees. Placing Kituo Cha Sheria II in the context of the two decisions and using a human rights-based analysis, the rewrite challenges existing notions that portray securitisation as the inevitable consequence of a volatile security environment and the dogmatic embrace of civil procedure even at the expense of the impact on human rights protection. It emphasises the role of the judiciary in the protection of the rights of vulnerable groups, such as refugees. This judgment rewriting contributes to the international refugee law scholarship by centring a human rights-based approach to refugee policymaking and critically analysing the role of courts in safeguarding and enforcing the rights of refugees. Kituo Cha Sheria lays the foundations for a human rights-based review of refugee policymaking that this rewrite seeks to amplify.