A birds eye view of laws and policies regarding IDPs in Kenya.

By Eron-Reece K Apolot

Internally displaced persons (IDPs) are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict.

The United Nations Office of High Commissioner for Human Rights (OHCHR) provides the most renowned international mechanism that exists for the protection of IDPs. Much as OHCHR does not explicitly address the plight of IDPs, it stipulates on the IDPs enjoying their rights without facing any form of discrimination. IDPs are to share the same rights and freedoms as provided under both international and domestic law in the country. The Guiding Principles espouses on the rights of IDPs and offers relevant protection from forced displacement until a durable solution is attainable.
Notably, the IDPs are forced out of their homes due to conflicts, egregious breach of their human rights as well as communal violence. Consequently, these persons are at risk of remaining deracinated from their habitual residence, livelihoods within their country. To drive this closer home, Kenya has experienced its own share of IDPs in the country mainly due to 2007/8post-election violence that left many dead and others seeking refuge elsewhere within the country. Also, the erroneous tribal clashes, adverse effects of climate change resulting into adverse drought and famine. This in turn has led to forced displacement internally in search for favorable living conditions.

Internationally, one may argue that the main instruments of International Humanitarian Law relevant to the protection of IDPs are the four Geneva Conventions of 1949 and their two Additional Protocols adopted in 1977. This convention somewhat applies to the Internally Displaced Persons. However, it’s worth noting that the Convention was adopted in 1949, to primarily deal with the status and treatment of civilians in occupied territory. With the test of international legal mechanisms lays the basis from which the law finds expression within a nation. It’s quite relevant to reflect on the laws and policies terrain within the region and domestically.

The African Union has the right to intervene in a Member State pursuant to a decision of the Assembly in accordance with Article 4(h) of the Constitutive Act in respect of grave circumstances… .The African Union supports the efforts of the States to protect and assist internally displaced persons under this Constitution . States Parties are tasked to protect the rights of IDPs regardless of the causes of displacement . Therefore, the responsibility for protection of IDPs, rests with the national authorities
The pact on security, Stability and Development in the Great Lakes Region (ICGLR) was adopted in Nairobi in December 2006 aiming at creating security, stability and development between the member states. The pact includes 10 protocols including two protocols dedicated to the protection of IDPs.

Nationally, Kenya still has not adopted a legal framework recognizing and providing for the protection and assistance of IDPs. The 2010 Constitution of Kenya articulates a Bill of Rights that protects the basic rights of IDPs. A Draft IDP policy currently under consideration seeking to elaborate on these rights drafted by the Ministry of State for Special Programme, supported by the Protection Working Group on Internal Displacement (PWGID). In 2008, the government launched an operation to settle IDPs and provide funds to pre-establish their lives.
While some feel the draft IDP policy has been overtaken by the IDP Act and there would be less added values in adopting the draft policy now, an approved IDP policy would certainly help facilitate implementation of the IDP Act with both legislations being essential to improved national response to IDPs needs.

Over the years, the government has adopted a number of policies and laws that are relevant in terms of preventing and addressing displacement although some not IDPs-specific. These include a draft national disaster management policy developed (2009) and a disaster management bill, both pending. A national disaster response plan is already in place, linked to the Vision 2030 development strategy for northern Kenya and other arid lands. Other government initiatives aim to prevent or minimize the extent and impact of internal displacement, such as the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, the draft national policy on peace building and conflict management.
Conclusively, Kenya has tried to make quite significant progress in developing a comprehensive land-related framework, which again is very relevant to address displacement.

African Union Convention for the protection and assistance of internally displaced persons in Africa (Kampala Convention)

Cohen R, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’ (2004) 10 Global governance 459

‘Guiding Principles on Internal Displacement | IDMC’ https://www.internal-displacement.org/internal-displacement/guiding-principles-on-internal-displacement accessed 12 May 2022

Edwin Adhiambo Abuya and Charles Ikobe, wasted lives. Internally displaced persons living in Camps in Kenya, 2010

‘Internally Displaced Persons – Refugee Consortium of Kenya’ https://www.rckkenya.org/internally-displaced-persons/ accessed 14 May 2022

‘Internally Displaced Persons (IDPs) | How Does Law Protect in War? – Online Casebook’ https://casebook.icrc.org/glossary/internally-displaced-persons-idps accessed 12 May 2022

International Humanitarian Law: Answers to your Questions https://www.icrc.org/en/doc/assets/files/other/icrc_002_0703.pdf

Legal Protection of Internally Displaced Persons – ICRC’ (11:26:17.0) accessed 12 May, 2022.

‘Www.Icglr. Org – The Pact’ http://www.icglr.org/index.php/en/the-pact accessed 12 May, 2022.

‘UN High Commissioner for Refugees (UNHCR), Guiding Principles on Internal Displacement, 22 July 1998, ADM 1.1,PRL 12.1, PR00/98/109’

The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012

About the author

Eron-Reece K Apolot is a recent LLB graduate from the University of Nairobi and is a legal researcher in international law and human/humanitarian law.

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).

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