Refugees' Right to work is vital to individual dignity said Kenyan High Court (July 2013)

We reproduce hereafter an extract of the first High Court ruling (26 july 2013) quashing the Kenyan government directive planning to send urban refugees living in Nairobi into refugee camps. This extracts recalls that the right to work of urban refugees contributes to human dignity and allows for self-sufficiency of refugees. 

Right to dignity
The petitioners and other refugees have established roots in the country and are productive residents and if the policy is implemented they will be uprooted from their homes and neighbourhoods in what is intended to be a security operation.
Mr Masitsa, learned counsel for the petitioners, asked the court to consider the case and put weight on the fact that human dignity has to be understood against the backdrop of appreciating the vulnerability of refugees and the suffering they have endured, the trauma and insecurity associated with persecution and flight, the need and struggle to be independent and the need to provide for themselves and their families and the struggle to establish normalcy in a foreign county. I agree with this submission. Weighed against exposure to arbitrary administrative action and abuse of their person in the host country, refugees who have established some normalcy and residence in urban areas will have their dignity violated in the event the directives are to be effected. Family, work, neighbours, and school all contribute to the dignity of the individual. The manner in which the Government Directive is to be carried out undermines human dignity. I therefore find and hold that the Government Directive threatens to violate the right to human dignity under Article 28 (of the constitution). 
Earlier in this judgment I have stated that due to their position, refugees are considered vulnerable. That the State can direct organisations and other bodies not to provide assistance to urban refugees is directly inconsistent with its special responsibility towards vulnerable persons under Article 21(3) quite apart from undermining the right to dignity and I so find. 


Whether the Government Directive can be justified under Article 24  
The State has not demonstrated that the proliferation of the refugees in urban areas is the main source of insecurity. Furthermore, confining some of the persons of independent means, those who are employed or carry on their business to refugee camps does not serve to solve the insecurity problem. While national security is important and should not be compromised, the measures taken to safeguard the same must bear a relationship with the policy to be implemented. Security concerns must now be viewed from the constitutional lens and in this regard there is nothing to justify the use security operation to violate the rights of urban based refugees.

For more information on this case, see the Nairobi Urban Refugee Protection Network blog.

Sending urban refugees to refugee camp threatens their right to work, as also stated in Refugee Law Initiative's working paper n°4, Rights Displaced: The Effects of Long-term Encampment on the Human Rights of Refugees, ( May 2012, Svetlana Sytnik)

The right to work of urban refugees
“Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment” (UDHR 1948). The right to work, including wage earning employment, is a fundamental human right enshrined  in Article 23 of the UDHR, Article 6 of the ICCPR and Article 15 of the ACHPR. It is also a recognised right in the 1951 Convention. As such, refugees in Kenya should not be inhibited in  their ability to work. Long-term confinement in Kakuma camp, however, leaves the vast majority of refugees without this ability. Not only are employment opportunities within the camp severely limited, but the ability to obtain employment is hindered by the remote location of the camp, as well as by the numerous incentives used by the Kenyan government to keep refugees confined to camps. Restrictions on employment deprive refugees of the ability to rebuild their lives and become constructive members of society (UNHCR 2006, 114). As the case study of Kakuma camp makes clear, the right to work is violated by long-term encampment.

Urban refugees
The following extract of UNHCR Official Position on the Government Directive, dating from 25 January 2013, also illustrates the role of cities in providing livelihood opportunities for urban refugees:

UNHCR also hopes that the Organization's urban refugee policy that has been supported by the Kenyan Government as the best way forward for refugees who are able to fend for themselves and participate in the development of their host communities will remain in effect. This policy underlines that cities are legitimate and critical places for refugees to reside and exercise the rights to which they are entitled.

There are currently 56,000 asylum seekers and refugees registered with UNHCR in Nairobi and other urban centres in Kenya. The largest segment of this group is made up of Somalis (33,844) followed by Ethiopians (10,568) and nationals from the Democratic Republic of the Congo (7,046). A minority comes from Eritrea, South Sudan and the Great Lakes.