By Janet Jebichii.
Internally Displaced Persons (IDPs) are persons who have been forcefully caused to flee their homes by either conflicts, violence, disasters, development projects, human rights violations and are still within their national borders.
Development of legal and policy solutions to the problem of internal displacement in Kenya was enhanced after the 2007-2008 post election violence which saw upto 600,000 people dpslaced. However, the enactment of a national law on IDPs has not provided a lasting solution to internal displacement since statistics indicate that Kenya records a high number of IDPs annually with major causes being disasters, conflicts and violence.
According to Internal Displacement Monitoring Centre Global Report, there were about 5.2 million new internal displacements resulting from conflicts and violence and 3.3 million displacements resulting from disasters as of June 2018. In that year, Kenya experienced 326,000 displacements from disasters such as floods throughout the country. In 2019, Global Report from IDMC indicates that Kenya had 336,000 displacements whereby 74,000 displacements resulted from disasters and 162,000 resulted from Conflicts and violence. Fastforward in 2020, there were 190,000 displacements caused by conflict and violence and 335,000 new displacements by disasters.
These figures demonstrate that internal displacement is a recurring problem in Kenya that need a lasting working policy and legal framework. Other causes of displacements include; induced displacements from public land and forest reserves, as was the case of eviction Kariobangi residents and the Ogiek Community from Mau Forest respectively.
This article discusses the protection of IDPs in Kenya, the legal challenges and the recommendations for enhanced protection of these vulnerable groups of persons in Kenya.
Laws on IDPs in Kenya
Any treaty ratified by Kenya forms part of the Kenyan law by virtue of Article 2(5) and (6) of the Constitution of Kenya, 2010. As such, some of the laws governing IDPs are; the United Nations Guiding Principles on Internal Displacement (UNGPID), 1998which is a soft law and the only global lawon IDPs, the International Conference on the Great Lakes Region’s three Protocols namely; the Protocol on IDPs, Returnees’ property rights and protection of women and children against sexual violence (ICGLR Protocols).
These international instruments take a rights-based approach and cover all the phases of displacement from prevention against displacement, protection during displacement and the development of durable solutions to displacement. They also emphasize the primary role of states in addressing internal displacement.
Nationally, instruments that directly or indirectly address internal displacement include; the Constitution of Kenya, 2010, IDPs Act, National Peacebuilding and Conflict Management Policy, 2014 and the Emergency Response Plan and Standard Operating Procedures developed by the National Disaster Management Unit in 2014.
Kenya has not ratified the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 2009. History revals that Kenya did not sign the Convention at the time of adoption as she was underway in enacting a national IDPs Policy and shortly thereafter in 2010, a new Constitution was passed calling for alignment of all laws with the new grund norm. Subsequently, an Act for ratification of treaties became law in December 2012 making it possible for Kenya to ratify any treaty. Despite being in a position to ratify the Convention since 2012, Kenya has been planning to do so but has not taken any step to do so.
With the existing national laws on IDPs in place, internal displacement should have been a thing of the past in Kenya. However, that has not been the case for reasons discussed in the following section.
Legal Challenges impeding effective protection of IDPs in Kenya
Kenya is among the countries that have made a great step in developing a national law on IDPs. In as much as Kenya has not ratified the Kampala Convention, the IDPs Act mirrors the provisions of the Convention. However, a close reading and analysis of the existing laws dealing with displacement reveal some challenges that include;
Lack of a strong national focal point for IDPs
The UNGPID and the ICGLR Protocol on IDPs require member states to establish a national focal point to deal with internal displacement matters. In line with this requirement, Kenya’s IDPs Act establishes the National Consultative Coordination Committee (NCCC) in Section 13 as the national focal point for IDPs. However, this Committee is established as an unincorporated body under the government organ responsible for matters of internal displacement and IDPs. The Committee is made up of 13 members out of which two of them are the representatives nominated by the IDPs themselves. The President appoints the Committee’s chairperson from among the members appointed by the Cabinet Secretary (CS) responsible for IDPs. Currently, the Committee is under the Ministry of Interior and Coordination of National Government but as of November, 2021, there was no Committee in place. There has been no gazettement of the members of NCCC after the expiration of the term of the first Committee that was appointed in 2014. The 3-year term of the NCCC members gazetted in 2014 by the Cabinet Secretary for IDPs expired in November 2017.
It is also worth noting that the Act provides that the Principal Secretary in the Ministry of Interior and Coordination of National Government provides the Committee with the secretariat. These few examples show that the Committee is not independent as it ought to be in order to be fully and continuously functional.
The establishment of the focal point in form of an unincorporated body affects the administrative processes as there is no perpertual continuity .
There is therefore need for clear provisions on the establishment of NCCC,and certainty in the term of membership to ensure that the committee is operational at all times. There is also need to establish the committee as an incorporated body to confer it with legal personality and perpetual succession to ensure continuity of its operations. Further, there should be proper coordination of the Committee with the County governments to ensure that the Committee’s functions and services are closer to the displaced persons.
Poor coordination between the NCCC and the government entities dealing with the national population data
It is worthnoting that there is no official and accessible data on IDPs in Kenya. According to the IDPs Act, the Committee is required to maintain an up-to-date register of IDPs. However, there are no provisions on the modalities of maintaining the register of IDPs.
Past experiences show that NCCC may not have the requisite capacity to register and maintain data on IDPs. After the PEV in 2008, for instance, the government through the Ministry in charge of IDPs then together with United Nations High Commissioner for Refugees (UNHCR) and through the Kenya National Bureau of Statistics (KNBS) collected data on IDPs. KNBS, being the country’s principal agency maintaining all the official data is suited to cooperate with NCCC to facilitate this. The Act does provide for possible coordination between NCCC and KNBS. Accurate data promotes effective assistance to IDPs. A number of the IDPs within Uasin Gishu County, Kenya, did not receive assistance to resettle in their former land because the registration process was flawed. Further, when the International Organization for Migration (IOM) constructed temporary houses for some of the IDPs, others struggled on their own as their names were not forwarded for consideration and assistance.
There is need for involvement of KNBS in obtaining and maintaining an up to date register of IDPs in the country as it is suited and has capacity to facilitate data collection and maintenance.
Multiplicity of Institutions Dealing with IDPs
There are several institutions involved in addressing internal displacement in different capacities. They include; NCCC, the National Disaster Management Unit, the National Disaster Operations Centre and the National Peace Council among others.
The Act requires the establishment of a preventive mechanism in areas where displacement is likely to happen. Similarly, NCCC is to coordinate preparedness efforts against displacement. There is also National Disaster Management Unit (NMDU), a multiagency unit established under the Ministry of Interior Security aimed at providing proper coordination before, during and after disasters to save human lives and their property. There is no reference whether this was the mechanism contemplated by the IDPs Act. The Ministry and NDMU developed National Emergency Response Plan and Standard Operating Procedures (SoPs) in 2014 and the same gives the institutional structure of NDMU and their functions within the national and county governments. NDMU is, among others, responsible to monitor and respond in situations of disasters. To that extent, the Emergency Response Plan and SoPs and the IDPs Act aim at protecting people from disasters. Further, the research established that there is a National Disaster Management Authority Bill, 2019 which creates an Authority as a corporate body mandated to coordinate disaster preparedness, response and management in the country and establish early warning systems. This Authority is to dissolve NDMU and National Disaster Operations Centre (NDOC). Should the bill become law, the Authority will have the same functions as NCCC in the prevention of displacement by disasters. This will lead to duplication of roles.
On prevention of displacements through conflicts, National Peacebuilding and Conflict Management Policy, 2014 was adopted in 2015. The Policy creates the National Peace Council for resolution and prevention of conflicts. The Policy adopts IDPs definition in the UNGPID and Kampala Convention but fails to mention the ICGLR Protocol on IDPs and the IDPs Act. Refugee Consortium of Kenya attributes this to lack of knowledge on the IDPs Act in Kenya and misinformed position since Kenya has not ratified Kampala Convention. The Council and NCCC have the same functions in preventing conflicts. Other institutions on peacebuilding are National Steering Committee (NSC) which acts as Conflict Early Warning and Early Response Unit. Truth, Justice and Reconciliation Commission was established in 2008 to report on human rights abuses and injustices from independence to 2007/2008 PEV. Similarly, the National Cohesion and Integration Commission is mandated to eliminate discrimination and promote peaceful coexistence between people.
The above discussion demonstrates that there are instances of duplication of responsibilities, and harmonization of the fiunctions of the mentioned institutions will promote efficiency through responsibility and accountability.
Absence of rules facilitation lawful evictions
According to the Committee on ESCR’s General Comment No. 7, lawful removal of people from their land or residence permanently or temporarily is not prohibited. There are no rules governing necessary displacement of persons where the same is done as a matter of last resort. The Evictions and Resettlement Procedures Bill, 2012 is yet to be passed into law. This Bill aims at providing procedures to effect forced evictions of persons which include persons occupying public land illegally.This affects the government’s responsibility to fulfil the property rights of IDPs such as housing and land during and after displacement. Absence of law on eviction and resettlement procedures in Kenya has resulted in government officials often burning the houses in the process of eviction. Kenya has been held to have contravened the African Charter on Human and Peoples Rights (ACHPR) in two occasions due to forced evictions of Ogiek and the Endorois Indigenous Communitiesn of.
Recently, in the wake of the Covid-19 pandemic in May 2020, the government evicted people in Nairobi’s Kariobangi and Ruai for allegedly occupying public land leaving about 9,500 people removed and their houses demolished despite the Court Order barring the same. This attracted the attention of the Special Rapporteur on housing rights who urged Kenya to stop evictions and provide basic needs to the displaced.
Parliament should fast-track passing of the aforementioned Bill into law to ensure that any necessary eviction, be it for development or for environmental conservation purposes, is done lawfully to avoid situations of internal displacement.
Low level of awareness of the IDPs Act
There is low level of awareness of the Act among policy makers and the IDPs themselves. For instance, the National Peace Building and Conflict Management Policy mentions UNGPID and Kampala Convention while making no reference to the IDPs Act. This shows that the drafters might not have been aware of the Act.
Further, an examination of decided cases on internal displacement between 2013 and 2018 revealed that few cases relied on IDPs Act. For instance, in the cases of Internally Displaced Persons Initiative Support vs Permanent Secretary Ministry of Devolution & Planning  and Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another the petitioners sought for inclusion in compensation allocated for IDPs by the government. The petitioners in these two cases relied on UNGPID and ICGLR Protocol on IDPs leaving out the IDPs Act thus demonstrating lack of awareness about the Act at the time of filing the cases
This shows that there is need for robust publicization of the IDPs laws to create awareness among the government officials and the public at large.
The above discussion shows that the reality of effective protection of IDPs depends not on the existence of laws on IDPs but on the absence of legal gaps and the ability to implement the said laws coupled with the existence of strong national focal point to oversee implementation of the same.
 Scope and Introduction, United Nations Guiding Principles on Internal Displacement, 1998.
 Available at< https://www.beyondintractability.org/casestudy/kenya-case-internally-displaced-people-following-2007-post-election-violence > (accessed on 16th December, 2021 at 12.26pm).
 IDMC, Mid-Year Figures, Internal Displacemnt in 2018, 12th September, 2019. Available at < https://reliefweb.int/sites/reliefweb.int/files/resources/201809-mid-year-figures.pdf> (accessed on 15th December, 2021 at 12.26pm).
 IDMC Global Report on Internal Displacement, 2020. Available at <https://www.internal-displacement.org/sites/default/files/publications/documents/2020-IDMC-GRID.pdf> (Accessed on 15th December, 2021 at 01.04pm)
 Kenya, Country Information. Available at<https://www.internal-displacement.org/countries/kenya/ > (accessed on 8th November, 2021 at 12:46pm).
 Available athttps://www.hrw.org/news/2020/06/10/nairobi-evicts-8000-people-amidst-pandemic-and-curfew# <accessed on 8th November, 2021 at 1.06pm).
 Available at < https://minorityrights.org/2020/07/17/ogiek-evictions/>(accessed on 8th November, 2021 at 1.30pm).
 Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, No. 56 of 2012. (IDPs Act)
 Status List. Available<https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa >( accessed on 8th November, 2021 at 1.35pm).
 Internal Displacement Monitoring Centre and Norwegian Refugee Council, ‘The Kampala Convention One Year on: Progress and Prospects’ 2013, p.20.
 Treaty Making and Ratification Act, No 45 of 2012.
 IDPs Act, Section 12 (2).
 Kenya Gazette Notice Number 8405, Vol. CXVI No.139, 2014, p.3156.
 Refugee Consortium of Kenya Report, Evaluation of the Implementation of the IDP Act in Kenya, 2018, p. 12 Available at <https://www.rckkenya.org/wp-content/uploads/2019/10/IDP-Act-Evaluation-Report-2018.pdf > accessed on 8th November, 2021 at 11.00am).
 IDPs Act, Section 13(d).
 Kamungi P., National Response to Internal Displacement: Achievements, Challenges and Lessons from Kenya.
 Refugee Consortium of Kenya, Internally Displaced Persons, Available at< https://www.rckkenya.org/internally-displacedpersons/#:~:text=The%20Ministry%20of%20State%20for%20Special%20Programmes%2C%20in%20its%20most,communities%20for%20months%20to%20come.>(Accessed on 15th December, 2021 at 22:15PM).
 Statistics Act, No 4. of 2006, Section 4.
 Respondent X, interviewed by Janet Jebichii on 17th March, 2020, Uasin-Gishu County; The Respondent stated that the list used for actual distribution of monetary assistance from the government was different from the initial list of people registered.
 Respondent W, interviewed by Janet Jebichii on 17th March, 2020, Uasin-Gishu County; The Respondent stated that she did not benefit from the assistance from IOM and she reconstructed her own house after resettlement.
 NMDU was established by a Presidential Directive communicated through letter Ref. No. CAB/NSC/14/2/32 dated 8th August, 2013.
 National Emergency Response Plan and Standard Operating Procedures (Sops), p. 133.
 National Disaster Management Authority Bill, 2019, Section 5.
 Ministry of Interior and Coordination of National Government, 2015, Sessional Paper No.5 of 2014 on National Policy for Peace Building and Conflict Management, Nairobi p. 22 cited in Refugee Consortium of Kenya, Evaluation of the Implementation of the IDP Act in Kenya, 2019. Available at< https://www.rckkenya.org/wp-content/uploads/2019/10/IDP-Act-Evaluation-Report-2018.pdf> (Accessed on 15th December,2021 at 09:43AM).
 Refugee Consortium of Kenya, Evaluation of the Implementation of the IDP Act in Kenya, above note 15, p. 10.
 Truth, Justice and Reconciliation Commission, No. 6 of 2008, Section 6.
 National Cohesion and Integration Commission Act, No. 12 of 2008, Section 15.
 Ibid, Section 25.
 IDPs Act, Section, 6 (3).
 Respondent “S”, Interviewed by Janet Jebichii, 27th March, 2020, Maasai Mau, Also, Human Rights Watch, “Kenya: Abusive Evictions in Mau Forest, stop using excessive force, uphold guidelines,” Nairobi, 2019. Available at<https://www.hrw.org/news/2019/09/20/kenya-abusive-evictions-mau-forest> (Accessed on 16th December, 2021 at 02.00pm).
Ogila J., “CJ Maraga blames President Uhuru for backlog of cases, decries disregard of Court Orders” Nairobi, 8 June, 2020. Available at<https://www.standardmedia.co.ke/article/2001374421/president-uhuru-s-uta-do-attitude-paralysing-courts-cj-maraga#> (Accessed on 16th December, 2021 at 10:47AM).
UN Human Rights, Office of the C High Commissioner, “COVID-19 crisis: Kenya urged to stop all evictions and protect housing rights defenders” Geneva, 22 May, 2020. Available at<https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25901&LangID=E#:~:text=Evictions%20in%20Kariobangi%20and%20Ruai%20informal%20settlements&text=On%2015%20May%2C%20more%20than,the%20cold%20under%20the%20rain.> (Accessed on 16th December, 2021 at 10:47AM).
Refugee Consortium Report in Note 15 above,
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Janet Jebichii Sego is an Advocate of the High Court of Kenya. She holds a Bachelor of Laws Degree (LL. B) from the University of Nairobi (Kenya), a Post-Graduate Diploma in Law (Legal Practice) from the Kenya School of Law and a Master of Laws (LL.M) from the University of Dar es Salaam- United Republic of Tanzania. Her areas of interests include developing solutions for forced migration with particular focus on internal displacement. She can be reached through firstname.lastname@example.org.
This blog forms part of research of the Global Engagement on Internal Displacement in Africa (GENIDA) (EP/T003227/1) projects supported by the UK Research and Innovation (UKRI) Global Challenges Research Fund (GCRF).