THE government was yesterday put to task over a blanket directive to deport Somali refugees in the wake of crackdown on terror.
A judge hearing a case challenging the directive wondered why in this day and era when the constitution calls for transparency government agencies don't give enough information and clear directives.
Judge David Majanja asked the state counsel how he expected the Somali refugees who had proper documentation to know whether they are exempted from action arising out of directives of government or not.
"You are forcing people to go back to Dadaab refugee camp to get exemptions. This interrupts their lives," said the judge. This comes a day after judiciary announced that it is willing to work with security forces to fight terrorism.
Chief Justice Willy Mutunga who made the announcement after long meeting with security officials was, however, quick to add that even as they try and put state security as top priority it will not override or contravene the bill of rights.
Yesterday the state counsel Peter Kuria on his part said that the refugees are under obligation to present themselves to authority to show good cause of their presence in the country as they have done previously.
He opposed the case by the more than 500 refugees saying they have not complied with Kenyan laws.
However the state counsel did not give any evidence showing that the refugees had done anything contrary to the law.
The government lawyer pleaded with the court to dismiss the case by the refugees saying the directive in question given by interior minister Joseph Ole Lenku was done in accordance with law.
In their suit papers the refugees said that sending them back to Somali amounts to infringement on their rights to dignity. They also said the government directive to have the refugees sent home is a blanket order which goes against international laws on asylum seekers and if implemented it will put them in jeopardy.
The nine told the judge that they hold valid refugee identity cards and or had applied for renewal of the same and the policy of relocation and encampment adopted by state fails to take into account families with children, those on medical treatment, those carrying on business like them and the specific fact situation of the individual refugee.
In their view the government policy to repatriate refugees has an adverse effect on other fundamental rights and freedoms such as the right to work enshrined in various international human rights instruments.
They said they are likely to face persecution in those designated refugees' camps owing to their ethnic affiliation and the government directive does not take into account this fact and exposes him to likely persecution.
"The Government Directive is not fair and reasonable within the meaning of Article 47(1) in so far as it does not provide for application of due process in adjudicating the rights of persons with refugee status," read the suit papers in part.
The nine and other refugees have established roots in the country and are productive residents and if the policy continues being implemented they will be uprooted from their homes and neighbourhoods in what is intended to be a security operation discriminatory targeting them, the court heard.
The continued implementation of the Government Directive is a breach of the principle of non-refoulement as contained in section 18 of the Refugee Act, 2006, they argued.
"The petitioners are persons who are independent and are in fact contributing to the economy thus the implementation of the policy of relocation and encampment is clearly detrimental to the welfare of the petitioners."
On May 6 justice Majanja issued temporary order stopping the government from sending home 500 Somali refugees.
He had also granted an order stopping the state from putting the refugees concerned in any refugee camp.
Majanja issued the order following a successful application by Samow Mumin Mohammed and eight others through lawyer Bemih Kanyonge.
Justice Majanja will give his judgment in the case on a date he will notify the parties about.