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Repatriation to Where? Repatriating Refugees Flowing from A Failed State in Sub-Saharan Africa: Somali Refugees in Kenya, 1992-2004

Ahmednasir M. Abdullahi, Ahmednasir, Abdikadir & Co. Advocates, Nairobi, Kenya
ahmednasir@ahmedabdi.com

Between 1992 and 2004 the government of Kenya with the assistance and support of the United Nations High Commission for Refugees initiated and implemented a scheme to repatriate Somali refugees in Kenya. Over 250,000 refugees were returned to Somalia. During the period under review Somalia following the collapse of the Said Barre regime and the calamitous consequences that followed was without an effective government and thus couldn’t enter into any international relationship on the international plane.
The repatriation of Somali refugees in Kenya during the period under study raises a number of interesting and intertwined legal issues that has rarely been interrogated.
First, it raises in a most unique manner the applicability of the legal concept of repatriation under international law which dictates that it must be voluntary and can only be undertaken when the conditions that initially caused the refugees to flee their country no longer exists. A subset of such a matrix is the question how voluntary the exercise of repatriation was In light of the Somali civil war.
Second, the repatriation exercise raises a fundamental issue that was ignored: can a failed state without an effective government receive back its citizens? Under international law, there must exist two states the repatriating state and the receiving state. All conventions both international and regional recognize the existence of two states to coordinate the exercise. The absence of Somalia as the receiving state clearly invalidates such an exercise.
The paper covers issues of failed state, the concept of repatriation and reaches the conclusion that the repatriation of Somali refugees in Kenya fails to meet the very minimum criteria of voluntary repatriation in international law.