How the Courts Schooled Donald Trump and Kenya’s Government on Refugee Rights

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The High Court of Kenya ruled on February 9 that the Kenyan government acted unconstitutionally when it issued a directive to close the Dadaab refugee camp, home to about 260,000 mostly Somali refugees, some of whom arrived in the early 1990s to escape ongoing violence in their country.

The court found the intention behind the directive to be the forcible return of Somali refugees, and ruled it null and void, saying that it violated the principle of non-refoulement—no forced return of refugees to places where their lives or freedom would be threatened—and discriminated against Somalis.

The Kenyan court both affirmed the rights and dignity of refugees and the critical role of the judiciary “to hold those who exercise public power accountable…[and] to uphold the fundamental and enduring values that constitute the rule of law.”

Somali refugees Dadaab Somali women with their children walk along a road at Hagadera sector of the Dadaab refugee complex, north of the Kenyan capital Nairobi, April 29, 2015. Kenya's High Court blocked a government decision to close the camps. TONY KARUMBA/AFP/Getty

The political backdrop to this was the Kenyan government’s contention that its actions were prompted by national security, citing “overcrowding in the camps, terrorist attacks, huge economic costs, human trafficking, proliferation of arms, strained government resources and insecurity.”

But the court said: “No single arrest or conviction has been cited, nor has it been established why a blanket condemnation should be applied to all refugees.”

In pledging to appeal the court ruling, the government reiterated that its order was all about countering the terrorist threat, saying in a press statement, “For us, as the government, Kenya will always come first.”

While Kenya presents a very different context, it is hard not to see the parallels with what is now happening in the United States.

On February 9, the Ninth Circuit Court of Appeals allowed to stand a temporary restraining order on President Donald Trump’s executive order to suspend all refugee admissions for 120 days, bar Syrian refugees indefinitely, and prohibit nationals of seven predominantly Muslim countries, including Somalia, from entry to the United States for 90 days. The appeals court is suspending the enforcement of that order while the judicial branch deliberates on the constitutional questions it raises, particularly whether an executive order purportedly for “protecting the nation from terrorist attacks by foreign nationals” was intended to discriminate on the basis of religion.

The Trump administration contended that the courts are not allowed to review the President’s immigration decisions if they involve national security. But the Ninth Circuit said : “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

Instead of showing the courts the respect and deference he owes them, President Trump blasted the “so-called judge” who first issued the restraining order and criticized the appellate judges in the midst of their deliberations, claiming that even “a bad high school student” would understand that his position was correct.

As Kenya and the United States grapple with complex questions of national security and refugee rights, it is heartening to see courts in both countries act with real independence and resolve. Let us hope that however these questions are answered, whether in Kenya, the United States, or anywhere else, judges will be able to make judgments about the rights of refugees, foreigners and other marginalized groups free of interference and intimidation.

Bill Frelick is the refugee rights director at Human Rights Watch.

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