Kenya’s new Refugee Act includes significant changes in policy on refugee economic inclusion, integration, refugee status determination, and the ability for refugees to contribute to Kenya’s national and local economy. While the new law has been in force since February 2022, the Kenyan government will spend the next six months developing regulations that will provide guidelines on the extent of refugee rights and the institutional framework for implementing the new law.
Izza Leghtas and David Kitenge of the joint Refugees International and Center for Global Development “Let Them Work” initiative spoke with Allan Mukuki, an advocate at the High Court of Kenya and legal expert, about what can be expected from the new legislation and what’s next.
The new Act provides that refugees “shall have the right to engage individually or in a group, in gainful employment or enterprise or to practice a profession or trade where he holds qualifications recognized by competent authorities in Kenya.” Does this mean that refugees will have greater access to the labor market?
Yes, although some challenges remain that might impede refugees from taking advantage of the changes. The Act requires refugees to have their qualifications recognized by the Kenyan National Qualifications Authority, a body that certifies and harmonizes education, training, assessment, and quality assurance of all qualifications awarded in the country. This would mean that a refugee living in the Kakuma refugee camp, for example, would have to obtain a permit to leave Kakuma and make the lengthy journey to the relevant offices in Nairobi to have all the documents certified. This may involve obtaining the approval of a professional body, such as the Law Society of Kenya or the Engineers Board of Kenya. It can be a lengthy and complex process, in some cases requiring additional testing. Also, the reality for many refugees fleeing conflicts is that they cannot take all their documents with them, which makes it even more complicated to obtain copies of their diplomas and qualifications achieved in their home country.
Under Kenya’s previous 2006 Refugee Act, refugees are required to live in camps. If they find a job outside the camp, they can’t move there. The new Act, however, refers to “designated areas” instead of camps. Do you expect any changes in refugees’ freedom to choose where they live?
On the one hand, the new Act says that refugees can get jobs when their qualifications have been recognized, but on the other, it requires them to reside in a “designated area.” The new Act defines “designated areas” as “any reception area, transit point or settlement area as may be declared by the Cabinet Secretary.” This raises questions about prior announcements by the government that it would close the refugee camps. The law and these announcements conflict, at least in tone. The law promises greater freedoms and rights for refugees, while the announcements suggest that all refugees should be returned to their country. The upcoming regulations will be key. They must be clear on what a “designated area” is. The regulations must also ensure that Kenya respects the principle of non-refoulement, as required under domestic and international law.
The new Act gives refugees from the East African Community (EAC) (a regional intergovernmental organization for economic, political, and economic cooperation between its seven Partner States) the option to give up their refugee status and benefit from the rights granted by the EAC Treaty and Protocol. What does this mean in practice? And does it mean that refugees from EAC countries will be able to move freely to other parts of the country to work?
The Act says that refugees from EAC countries (Burundi, Rwanda, South Sudan, Tanzania Uganda, and the newest member, the Democratic Republic of Congo (DRC)) can decide to no longer be treated as refugees and use their status as EAC citizens instead. This would give them the right to work and to live anywhere in Kenya, though they would still need a work permit. This would enable EAC refugees to move to other parts of the country to work and to do business without having to obtain a movement permit.
What about refugees from non-EAC countries? What options does the new Act offer them on economic inclusion?
As of January 2022, 58 percent of refugees in Kenya are Somalis, 28 percent are from South Sudan, 6 percent are from the DRC, and 4 percent from Ethiopia. This means that more than 60 percent of Kenya’s refugees are non-EAC citizens. Therefore, the right to move to another part of the country to get a job, for instance, would not apply to them. While the law is positive development for EAC citizens, the EAC-related provisions of the law are irrelevant for most refugees in Kenya.
However, as mentioned before, the new law does state that refugees “shall have the right to engage individually or in a group, in gainful employment or enterprise or to practice a profession or trade where he holds qualifications recognized by competent authorities in Kenya.” We can therefore hope that the government will create and facilitate acces to formal work even for refugees who are not from EAC countries.
Access to financial services is a major barrier to refugees’ economic inclusion in Kenya. Is this addressed by the new Act?
While financial inclusion is not explicitly mentioned in the new Act, it is key for refugees to be able to access the labor market and to progressively reduce their reliance on humanitarian assistance. We’re looking forward to seeing how the regulations would make this possible. For those who might want to change their refugee status to EAC status, we can expect that it will be easier to access financial services (such as opening a bank account, taking a small loan to start a business, and saving money) because EAC laws make it easier for EAC citizens to access financial services within EAC countries.
The new Act states that a new Refugee Identity Card will have at least the same status as the identity document known as the “Alien Card” which is currently issued to foreign nationals, including refugees. Can we expect the new system to reduce the waiting times refugees now face to obtain their identity documents, which they need to access formal employment and services?
It depends on what will be in the regulations, but the new law highlights that the Refugee Identity Card will at minimum have similar status with the Foreign Registration Certificate (known as the “Alien Card”). We hope that the process for issuing it will be faster and simpler.
Kenya has made great strides towards economic inclusion for refugees. So far, there has been good progress with the localization of the Global Compact for Refugees (a set of commitments to better respond to forced displacement, of which refugee self-reliance is a key part) and the Kenyan comprehensive framework (CRRF). The Compact has been articulated locally through the Kalobeyei Socio Economic Development programme (KISEDP) and Garissa Integrated Socio-Economic Programmes (GISEDP), which are government led programs that focus on host and refugee communities as well as private sector development. These are two area-based programmes which have been integrated with the County Integrated Development plans based on the empirical evidence of how refugees contribute positively to the local economic development the counties. These programmes show that the government is committed to including refugees in its plans. In view of such efforts and of the new Refugee Act, Refugees International is hopeful that the new legislation will further expand refugees’ access to the labor market, wherever they are from.
Feature Image: A South Sudanese refugee studies at the laboratory during her spare time to catch up on her lectures. (© UNHCR/Pauline Omagwa)