Threat of Dadaab Refugees Repatriation Back To Somalia

By

Lawrence W. Mwagwabi

On 12th April 2015, Kenya’s deputy president issued a threat to send back hundreds of thousands of Somali refugees in the wake of the Garissa University shooting. This has prompted alarm in the camps and rebuke from advocacy groups and even some MPs. It is unclear whether Deputy PresidentRuto’s speech was backed by an actual plan formulated by the Kenyan government. These pronouncements were widely reported in the media in Kenya. Both UNHCR and the Somali government were reported to have stated that they had not received formal communication about a large-scale repatriation at the camp.

It is worth noting that Kenya is a signatory to both the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Article 32 of the Convention is informative on ‘expulsion’ of refugees. It states that Contracting States shall not expel a refugee lawfully in their territories save on grounds of national security or public order. It further states that the expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. In addition, Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 33 which essentially focuses on prohibition of expulsion or return (“refoulement”). It states that no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. It further states that the benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

In addition, Kenya is obligated under Article 2(5) which states that, “the general rules of international law shall form part of the law of Kenya”. Article 2 (6), states that “any treaty or convention ratified by Kenya shall form part of the law of “. These two articles are very important given the public pronounce of intention to forcibly repatriate refugees because it is a violation of the Convention/Protocol on the Status of Refugees and the Constitution of Kenya. Further, the Convention is indeed part of Kenya’s laws.

The Dadaab camp (Established in 1991) in northern Kenya is home to some 335,000 Somali refugees, making it the second largest city of Somalis after Mogadishu. It hass increasingly become a place that a growing number of Kenyans want to get rid of, blaming Somali refugees for harbouring Somali al Shabaab extremist militants who have carried out a series of terrorist attacks on Kenyan soil. When Al Shabaab attacked Westgate shopping mall in Nairobi last year, killing 67 people, a senior Kenyan MP urged the government to close Dadaab, which costs the international community between $100 million and $200 million a year to run, calling it a “nursery for terrorists”. (See article by Alex Whiting entitled, “Dadaab refugee camp: A hotbed of extremism?” in Thompson Reuters Foundation http://www.trust.org/item/20140513162358-94p8r/).

Avery Burns notes that Al-Shabaab has been infiltrating the Somali population in Kenya to recruit more fighters and gain additional support. Burns further contends that Kenya is retaliating by infiltrating the Somali community itself to recruit refugees to return to Somalia to fight alongside the opponents of Al-Shabaab, the Transitional Federal Government (TFG). According to Burns, these refugees are vulnerable and disaffected and therefore susceptible to both alleged recruitment processes. The alleged use of refugees by Kenya to counter the threat of Al-Shabaab may demonstrate a new perception of outside threats and suggests that Kenya is now willing to sacrifice ideals of humanitarianism to secure its border with Somalia. The border remains officially closed but thousands of refugees fleeing the violence in Somalia continue to pour into Kenya. These refugees are desperate for security, but Kenya is quite aware that where refugees manage to cross the border, Al-Shabaab fighters may follow. Read Avery Burns, “Feeling the Pinch: Kenya, Al-Shabaab and East Africa’s Refugee Crisis”, in Refuge, Volume 27 Number 1 (2010), pp. 5 – 15. It is against this backdrop that government officials have made public pronouncements that have generated public debate on this issue.

In conclusion, it is clear that despite the public debated on this matter, what is fundamental is the need to respect the Constitution of Kenya which obligates the government to protect the rights of the refugees through the ratification on the Convention on the Status of Refugees (1951). Indeed, this Convention provides mechanisms to deal with suspected individuals who threaten the security of the country without necessarily subjecting refugees to repatriation and attendant threats.

Charles

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THE RIGHT PERSPECTIVE ON PLANNING

While going through my Bible yesterday, the best ever book to have and read, I was hoisted and enthused at pulling out some fundamental plugs regarding planning which I trust will positively sway and transform your set of intended actions from today henceforth.

“The plans of the heart belong to a man, but the answer of the tongue is from the Lord. All the ways of a man are pure in his own eyes, but the Lord weighs the spirit. Commit your work to the Lord and your plans will be established” (Proverbs 16:1-3).

The verses above affirm that planning needs an articulate approach. Indeed, it is a prerequisite to meditate and walk in line with the scriptures for your plans to be effective. First, you have to consider your normal schedule then prioritize what you want to do allowing that through God’s guidance. Let Him be your first precedence; you are fulfilled by His presence and always have the willingness to involve your Father in all the ideas you have, for a maximum outcome and production of loud results.

Apply due diligence, that is, paying proper attention to a particular task is vital. It goes hand in hand with determination and persistent, (see Proverbs 22:29, 10: 4).

Faithfulness is also a major factor when committing to a purpose with positive distinction. Discipline, consistency and temperance/self-control play a chief role (Ecclesiastics 5:4-6, Romans 8:1, 5-8). Be spiritually minded. Paul said in Romans 8:6, “To set the mind on the flesh is death, but to set the mind on the Spirit is life and peace.” The Spirit is your dwelling comforter, counsellor, helper, intercessor, advocate, strengthener and standby. He guarantees you victory as you yield to Him.

Fellowship with the Holy Spirit through prayer and His Word and finally, voice your faith and not your fears. Succumb not to your circumstances by letting anything stop you in the gratification of life. Adhere to this and believe me now you shall laugh your way through living triumphantly and being in control every day.

Charles

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Diplomatic Immunity My Foot!

By

Lawrence Wesley Mwagwabi

26 May 2012

I read someone’s Facebook status which read “Diplomatic Immunity My Foot!”  and a blog article link appropriately linked to it that prompted me to make certain specific clarifications that would enlighten those who may have been struck by this article.  The blog article which was a story reported in The Star daily, on a sub heading entitled, Venezuelan Diplomat Accused of Abuse, mentions a staff member of the Venezuelan Embassy filed a complaint with the Diplomatic Police Unit over an allegation of sexual impropriety by an ambassador Gerardo Carrillo Silva. The report went on to say that three junior employees working at Silva’s home in Runda have complained over sexual harassment. Furthermore, staff of the embassy further claimed that the diplomat had acted indecently towards them on diverse dates and some had been forced to quit their employment after being unable to bear the offending overtures. For instance, a watchman from Securex Company who had been guarding the diplomat’s residence was forced to quit because of the indecent acts towards him committed on diverse dates. The driver also alleged that he had fallen prey to the ambassador’s overtures. A long serving cook was surprised to see the diplomat stark naked in the kitchen on December 8, last year.  His driver told the police that the diplomat had attempted to grab him sexually in December but he managed to get away. This list goes on and on though some staff at the embassy could not substantiate these claims. I guess the disgust to the Venezuelan diplomat was prompted by the fact that as an ambassador, Silva enjoys privileges and immunities that are both functional and personal by virtue of the fact that he exercises the duties of a diplomatic agent and in this case, duties of an ambassador.

It is important to note that the rules regulating the conduct of diplomatic agents are codified under two conventions: Vienna Convention on Diplomatic Relations (1961) and Vienna Convention on Consular Relations (1963). If one examines the whole area of diplomatic relations, relations between states have traditionally been conducted through ambassadors and staff in a diplomatic mission. Indeed, the growth of trade and commercial “intercourse” resulted in the establishment of the office consul.

The field of diplomatic immunities is considered one of the most accepted and uncontroversial of international law discourse, as it is in the interest of all states to ultimately preserve diplomatic relations, although not all states act in accordance with this (examples can be drawn from US Diplomatic and Consular Staff in the Tehran case (and recently the incident involving demonstrators and invasion of the US and French embassies in Syria).  The person of a diplomatic agent is inviolable (uninfringeable) under article 29 of the Vienna Convention on Diplomatic Relations and he or she may not be detained or arrested. Indeed, this principle is the most fundamental rule of diplomatic law and is the oldest rule of diplomatic law. States recognize that the protection of diplomats is a mutual interest founded on functional requirements and reciprocity. Thus, receiving states (where diplomatic agents are sent to perform their functions as diplomats) are under an obligation to ‘take all necessary steps’ to prevent any attack on the person, freedom or dignity of diplomatic agents.

There are regulations in Diplomatic Law that prevent crimes committed against diplomats and itinerant punishment that should be meted out in event that this occurs. The United Nation Convention on the Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents was adopted in 1973. This convention provides that state parties must make attacks upon such persons a crime in domestic law with appropriate penalties and take such measures as may be necessary to establish jurisdiction over these crimes. State parties are obligated to extradite or prosecute offenders.

With regards to criminal jurisdiction, diplomatic agents enjoy complete immunity from the legal system (or domestic laws) of the receiving state (the state where the diplomatic agents serve their tour of duty), although there is no immunity from the jurisdiction of the sending state (the home state that has sent them to the receiving state). The provision noted in article 31 (1) of the Vienna Convention on Diplomatic Relations reflects the accepted position under customary law (it is important to mention here that the Vienna Convention on Diplomatic Relations is a codification of practice of states that became accepted norms in international relations. Indeed, customary international law – or CIL – is the historical acceptance of certain long standing practice by states as legally required. This has been recognized by the Statute of International Court of Justice as a primary source of international law!). The only remedy provided to the host state has in the face of offences alleged to have been committed by a diplomat is to declare him or her persona non grata under article 9 of the Vienna Convention on Diplomatic Relations.

Under article 31 (1) of the Vienna Convention on Diplomatic Relations diplomatic agents are immune from civil and administrative jurisdiction of the state in which they are serving except in three cases: where the action relates to private immovable property situated within the host state (unless for mission – embassy- purposes); in litigation relating to succession matters in which the diplomat is involved as a private person (for instance as an executor or heir); and, with respect to unofficial professional or commercial activity engaged in by the diplomatic agent. In addition, article 31 (2) of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent cannot be obliged to give evidence as a witness, while article 31 (3) of the same convention provides that no measures of execution may be taken against such a person except in the three cases mentioned under article 31 (1) a, b, and c and provided that the measures concerned can be taken without infringing on the inviolability of his/her person or of his/her residence.

Article 39 (2) of the Vienna Convention on Diplomatic Relations provides that immunities and privileges of a diplomatic agent normally cease when the diplomatic agent leaves the country or upon expiry of a reasonable period in which to do so. However, by this article there would be continuing immunity with regards to those acts that were performed in the exercise of his/her functions as a member of the mission. It therefore follows from this formulation that immunity would not continue for a diplomatic agent leaving the host country for any act which was performed outside the exercise of his/her functions as a member of a diplomatic mission even though he/she was immune from prosecution at the time. For instance, in the Former Syrian Ambassador to the German Democratic Republic (GDR), the German Federal Constitutional Court held that article 39 (2) of the Vienna Convention on Diplomatic Relations covered the situation where the ambassador in question was accused of complicity in murder by allowing explosives to be transferred from his embassy to a terrorist group. He was held to have acted in the exercise of his official functions. It was argued that diplomatic immunity from criminal proceedings knew of no exception for particularly serious crimes, the only resort being to declare him persona non grata. The Court, in perhaps a controversial statement, noted that article 39 (2) was not binding on the receiving (host) state, was not binding on third states. Accordingly, the continuing immunity of the former ambassador to the German Democratic Republic under article 39 (2) of the convention was not binding upon the Federal Republic of Germany.

Article 32 of the Vienna Convention on Diplomatic Relations (1961) provides conditions for waiver of immunity of a diplomatic agent. The sending state may waive the immunity from the jurisdiction of diplomatic agents and others possessing the immunity under the Convention. “Such waivers must be express” – see article 32 (2). Where a diplomatic agent who enjoys immunity initiates proceedings, they cannot claim immunity in respect of any counter-claim directly connected with the principal (main) claim. Waiver of immunity from jurisdiction in respect to civil or administrative proceedings is not to be taken to imply waiver from immunity in respect to the execution of the judgement, for which a separate waiver is necessary. In general, waiver of immunity has been rare or unusual. While waiver of immunity in the face of criminal charges is not common, ‘it is routinely sought and occasionally granted’. However, Zambia hastily waived the immunity of an official at its London embassy suspected of drugs offences in 1985.

Going back to the issue that prompted my writing this piece, there are only three remedies that can be sought on this matter: Venezuela can end the tour of duty of the ambassador and deal with this matter within its jurisdiction; Venezuela can waive the ambassadors immunities so that he can be prosecuted in our courts – but this would be rare and in any case the other diplomatic agents affected by this matter cannot be witnesses in Kenyan court proceedings on the crime the ambassador is alleged to have committed in Runda; and lastly, Kenya can declare the ambassador persona non grata.  Venezuela could do what the Nigerian Ministry of Foreign Affairs did by recalling its ambassador, Dr. Chijioke Wilcox Wigwe on allegations of battering his wife in July 2011.

Charles

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SUCCESS IMPULSE

 

In a flash, when success is stated many tend to envisage lone affluence. But I beg your pardon…. This is a  poor and lowest kind of mentality. To become efficacious is everyone’s reverie. Take annotation on this, if you can influence your world (sphere of contact) to think and aspire to your inspirations then that’s success. With what you are, you shall have.  Work on investing in your personality. Feeding rightly on the right materials to edify and build you up. There only can be one you, better work on that being and don’t at all be a mock-up.

I really love and appreciate what my man of God taught me some years back that influenced my perceptions up to date that, “All the things you ever need in life are wrapped up in the Word! Go for the Word.  Study and walk in line with it” The answer to all these… prosperity, abundance, favor, victory, divine health, family, peace, job, greatness henceforth. What a privilege!  Indeed, it is the uncut verity that many seem not to understand, but once enlightened you are propelled and elevated into a higher life plane of existence. Take heed of this.

Speak life! Death and life are in the power of the tongue and they that love it shall eat the fruit thereof (Proverbs 18:21). Words are vehicles (transport or transmit life), seeds (produce after their kind), amplifiers (reveal thought and character), and are pipelines for impartation. Power is transported through them. Have a vision of your desire with a positive attitude. Empower your imagination and contemplate the level of success you want to obtain and see yourself functioning at that level.

Dream and dream big and stay disciplined in line with that dream. See the way God sees giving thanksgiving for what you perceive. Know your purpose and concentrate on the energy to attain set goals. This shall aid in doing away with complains and distractions. Refuse to be moved by any afflictions and learn to encourage yourself with the Word. It is well!

As I adjourn it is bubbly to continually countenance your challenges and conquer them. Win the fight and revel this victory that you can move to the next level. Success is to be tough minded. Seeing a need and meeting it. You are a success because greater is He that is in you than he that is in the world! Oh glory! Decree and proclaim that it is born in you and act.

Charles

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What a mint experience at AAIK!

It has been weeks now since I joined ActionAid International Kenya as a Communication Intern. Earning a spot at ActionAid is very competitive thank God I went through. All you have to always do is take hold of His Word and speak forth what it says about anything that concerns your favored life. “Be careful for nothing; but in everything by prayer and supplication with thanksgiving let your requests be made known unto God”, (Philippians 4:6).

God is able to do exceeding abundantly above all that we ask or think. This is why we should never fret about anything in life and firmly refuse being moved by situations or circumstances that seem to work against our exertions. Worrying will just short-circuit your potential and ambitions, what I ask of you is to “REPEL WORRY”.

As an Intern it is quite intimidating especially for the first time to walk into a global business setting consisting of professionals, but with time you overcome such fears by interacting with them both in and out of your field because they are there to help and by chance get to know them more. I have indeed acquitted myself with the organizational structure and policies which thrive around furthering human rights and to defeat poverty for all.

The experience so far is splendid, getting exposed to administrative and office work more so field work. Recently, we explored Kajiado County liaising with our Local Rights Programme(LRP) colleagues in Elangata Waus to create awareness of the International FGM day which was on February 6, 2015. The communication team, I included camped there earlier enough to record every detail before and after the main event and I do confess  that the coverage was very overwhelming, colorful and positively impacting; meeting new and a lot of people from the community, area administration and the media in the bid to curb FGM a very retrogressive and  inhuman practice.

“After light came upon me about FGM I vowed to get out of my cultural beliefs which are pathetic and terrible”, She laments. Esther Oseru, former Nkamarateni (Circumciser) from the Maasai community fighting FGM I interviewed one on one.

Challenges are there as expected and I perceive them as strength. I always trust that they are stepping grounds for promotions to other levels and if they are not coming your way you aren’t growing and can’t go very far.

Lastly, I am very grateful to my great Communication Manager Madam Lucy Wanjiku and Christine Muna a very wonderful Communication Officer for their guidance both of whom we work together and ActionAid International Kenya at large. It is one of the best company to work for in the world!

Charles

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This is your very first post. Click the Edit link to modify or delete it, or start a new post. If you like, use this post to tell readers why you started this blog and what you plan to do with it.

Happy blogging!

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