3 June 2014 |
Kenya: too early to turn the page on IDPs, more work is needed
Since independence in 1963, Kenya has repeatedly experienced internal displacement triggered by political, ethnic and land-related violence as well as disasters and development projects. Political violence in particular, or the threat of it, has overshadowed every election since Kenya’s first multi-party elections in 1992. The gravest occurred in the aftermath of disputed presidential elections in December 2007 when nearly 664,000 Kenyans fled their homes and around 1,300 were killed.
There is no official, comprehensive, up-to-date national data on IDPs in the country. Data gathering has focused on instances of fresh displacement caused by violence or rapid-onset disasters with little quantitative and qualitative data on displacement dynamics after IDPs’ initial flights. The most recent informed estimate – provided by UNHCR in January 2013 – of 412,000 IDPs does not include those displaced by natural disasters, development projects and pastoralist IDPs. Nor does it include any of the estimated 300,000 people who fled post-election violence in 2007-2008 and who are usually described as “integrated” IDPs. Kenya needs to urgently develop capacity to provide comprehensive data on IDPs disaggregated by age, gender and location.
IDPs living in protracted displacement continue to identify as protection concerns inadequate access to land, basic services and livelihood opportunities. Many IDPs are displaced in areas of the country that are environmentally and economically vulnerable and thus enjoy fewer opportunities for integration and development.
Kenya has made progress towards putting a comprehensive legal and policy framework on internal displacement in place. The cabinet endorsed a draft national policy on internal displacement in October 2012 and parliament adopted a new Act on IDPs in December of the same year. Since then, however, there has been no progress in implementing the Act or moving the national policy beyond the draft stage. The implementation of such frameworks is essential to improving the Government’s response to the protection needs of IDPs and other affected communities. Kenya is also still to sign and ratify the Kampala Convention.
Background and causes of internal displacement
Since independence in 1963, Kenya has experienced numerous waves of internal displacement caused by political, ethnic and land-related violence as well as disasters and development projects. Some have affected relatively few people and been short lived – perhaps just a matter of days – while other displacements have been large-scale and protracted.
Displacement linked to historical land dispossession
Land policies during colonial rule entailed the dispossession of many indigenous communities, especially in the Rift Valley, Nyanza, Coast and the Western and Central provinces. Communities were rendered landless and in some cases displaced as a new title registration system based on individual ownership of land was imposed. This effectively legalised dispossession of land held under customary tenure.
Independent Kenya maintained this system. The Government implemented a number of market-based resettlement schemes to address resulting displacement situations. However, injustices in the acquisition of the original land titles were never questioned by the post-independence policies and schemes. Those who had been displaced and who did not have the financial means to acquire land were not compensated or assisted.
Land issues and ethnic tensions were further aggravated by a number of factors, including corruption and vested political interests as successive Governments favoured certain communities at the expense of others. Therefore, land remains one of the major causes of conflict in Kenya (ICM, August 2013; TJRC, May 2013; OHCHR, February 2012). Land-related disputes are also emerging in localities with valued resources, such as oil in Turkana and tourism in Lamu County.
Displacement due to political and ethnic violence
Ethnic clashes have been a feature of Kenyan elections since the first multi-party general elections in 1992. More than 15,000 people were killed and almost 300,000 displaced in Rift Valley, Nyanza and Western provinces between 1991 and 1996. In the run-up to the 1997 elections, new violence erupted on the coast, killing more than 100 people and displacing over 100,000. Between 1999 and 2005 politically-motivated violence continued to flare up, mostly in Rift Valley, Nyanza and Western provinces (OHCHR, February 2012; RCK 2005).
Kenya’s worst incidence of internal displacement took place following the disputed presidential elections of December 2007, when nearly 664,000 people fled their homes during two months of intense inter-ethnic violence which cost 1,300 lives (Parliament of Kenya, 6 November 2013). Around 350,000 internally displaced people (IDPs) took refuge in 118 camps, while 300,000 people found shelter with host communities or in rented accommodation in urban and per-urban areas and were considered as “integrated” (OHCHR, February 2012).
The violence was brought to an end by a compromise negotiated by the former UN Secretary-General Kofi Annan and the African Union Panel of Eminent African Personalities. This led to the signing in February 2008 of a power-sharing agreement enshrined in the National Accord and Reconciliation Act. The agreement acknowledged that to end Kenya’s cycle of electoral violence and displacement, it would be necessary to address impunity for human rights violations, reform the police, tackle poverty and the inequitable distribution of resources and address long-standing injustices (ICG, February 2008). Separate commissions were set up to investigate the conduct of the elections and the violence surrounding it, but the Government has been slow to act on their recommendations (AJLS, 2009). As efforts to establish a local mechanism to bring those responsible for the violence to justice failed, the International Criminal Court began to investigate. Trials against the current President and his Prime Minister for crimes against humanity are ongoing, despite the Kenya National Assembly’s decision to withdraw from the Court (OCHA, 10 May 2014; Jurist, 26 September 2013).
Since 2008 violence has continued to cause new displacement across Kenya. In 2009 and 2010, inter-ethnic clashes and Government-led disarmament efforts among pastoralist communities led to displacement in northern Kenya. In the second half of 2012, about 116,000 people were newly displaced due to violence resulting from a combination of ethnic, political and economic factors (OCHA, February 2014).
Following a 2010 constitutional reform, in 2013 power was devolved from the central to the local level. Election-related violence is also being decentralised. Devolution offers opportunities but it also carries risks, as communities compete against each other for representation (particularly for the post of governor). In northern Kenya, the days prior to the March 2013 general election saw a significant movement of population from Ethiopia into Kenya, which inflamed clan tensions in Mandera, resulting in the temporary displacement of 7,000 people (UNICEF, July 2013). Before the 2013 elections, cattle rustling was often used as a cover for political violence. Pastoralists in various locations confirmed both an increase in raids and the political nature of the violence (IDMC interviews, November 2012). However, with the exception of some serious localised incidents, the elections turned out to be largely peaceful.
Displacement due to disasters
Kenya experiences a number of natural hazards. Droughts and floods displace many every year. Floods seasonally affect various parts of the country especially along the flood plains in the Lake Victoria basin and along the Tana river (UNDP, 2009).
Around 80 per cent of Kenya’s land is arid or semi-arid. Drought and resultant depletion of resources combine with other stressors to have severe displacement impacts. The worst drought-affected areas of the country are in the east, the north-east, parts of the Rift Valley and coastal regions – particularly the districts of Baringo, Laikipia, Turkana, Samburu, Narok, Kajiado, Marsabit, Isiolo, Mandera, Garissa, Wajir, Tana River, Kilifi, Kwale and Taita Taveta. They have suffered increasingly severe dry spells, particularly affecting pastoralist communities (UNDP, 2009).
Disaster-related internal displacement has generally been of relatively short duration, especially when due to sudden-onset hazards. However, climate change is set to increase the frequency and severity of natural hazards and to lead to more prolonged displacements. This will require more comprehensive displacement responses, as natural hazards progressively weaken community resilience each time they occur.
Displacement due to development and environmental conservation projects
Evictions to make way for development and environmental protection projects have displaced significant numbers of people over the years. People have been evicted from private, public and communally-owned land in both urban settings and forest areas. Historical injustices relating to land have resulted in a high level of tenure insecurity for large numbers of people without formal land titles. This was the case for around 50,000 people reported to be forcibly evicted from the Mau Forest in June 2005, followed by a further 12,000 in the latter part of 2009 (Survival International, 2010).
Subsequent evictions from forest areas have taken place in Embobut and Cherangany in the western county of Elgeiyo Marakwet as police and Kenya Forest Service personnel have allegedly destroyed property belonging to indigenous communities. Some of the displaced have reportedly been offered compensation, but the list of eligible beneficiaries has not been made public and affected communities claim that they have not been consulted. Identification of those eligible for compensation is complicated by the fact that those affected are not just the Sengwer indigenous people but others who have settled there for economic reasons (IDMC interview with KNCHR, 3 February 2014; FPP, January 2014; OHCHR, January 2014).
Development projects such as new roads or hydropower dams are also an important cause of displacement (IRIN, October 2013). The planned Lamu Port and Lamu-South Sudan-Ethiopia Transport (LAPSSET) Corridor project will probably see an estimated 1,000 families relocated (RCK, 29 April 2014 - on file with IDMC). Much of the affected land is owned by pastoral communities at risk of being excluded from resettlement and compensation schemes, as they have been previously (IRIN, 9 October and 11 July 2013). Discoveries of oil and other minerals in Turkana area of the Rift Valley have also led to grievances and tensions among local communities, as they were not consulted prior to exploration and some have already been displaced without adequate compensation or identified viable alternatives (TAP, September 2013; ISS, November 2012). Up to 63 per cent of Turkana has been earmarked for prospecting and observers fear disputes and conflict over land and title deeds (IRIN, May 2012).
Forced evictions are also frequently reported in informal settings in urban areas where the majority of Kenyan urban residents live (AI, October 2013; AllAfrica, July 2013). Over half of Nairobi’s estimated population of 3.75 million live in informal settlements where it is hard to distinguish IDPs, recent economic migrants and the long-term urban poor (HPG, September 2011). Therefore, forced evictions can be a cause of initial displacement as well as secondary displacement for those already displaced due to other causes. Mass evictions from informal urban settlements are set to continue, adding significantly to levels of internal displacement and homelessness.
Internal displacement of pastoralists
The UN Special Rapporteur on the human rights of IDPs in his 2012 report on Kenya noted the tendency not to consider pastoralist groups as displaced because they are by definition mobile (OHCHR, February 2012). It is clear that pastoralists can be displaced, particularly in the arid and semi- arid northern region where they are the majority of the population. Their displacement is intrinsically linked to the loss of livestock, their primary basis of subsistence, and the loss of access to land, resources and markets. Factors that can trigger displacement include sudden shocks such as conflict, violence, cattle rustling, human rights violations and sudden-onset disasters such as floods. Slow-onset processes include drought, environmental degradation and both state and private interventions. Each of these causes may in itself directly result in pastoralists’ displacement but it is often a combination or sequence of causes, making it impossible to identify a single trigger (NRC/IDMC/NI, March 2014).
There are also cross-border drivers of displacement from the neighbouring states of Somalia, Ethiopia, South Sudan, Uganda and Tanzania. These include cattle rustling, the proliferation of small arms, incursions, spill over effects from conflicts in neighbouring countries and the repercussions of Kenya’s military forays into Somalia. Internal displacement dynamics also have a bearing on cross-border displacement, especially where international borders are as porous as they are in northern Kenya (NRC/IDMC/NI, March 2014; Bloomberg, July 2013; Daily Nation, March 2013; Small Arms Survey, June 2012).
Displacement patterns and figures
No comprehensive and up-to-date national data on IDPs was available as of May 2014. Kenya has no centralised IDP-related data-collection system and the Government has never carried out an exercise to profile their numbers and locations. As the registration exercise undertaken in 2007/8 only covered some of those displaced by the post-electoral violence (PEV) there is a need to better profile other IDPs, including the “integrated IDPs” in urban and peri-urban settings, people displaced by disasters, development or environmental projects and pastoralist IDPs. In essence, no IDPs displaced before or after the violence of 2007 and 2008 have been profiled. Legislation adopted in 2012 is a positive development in this regard, as it foresees the profiling of IDPs within 30 days of any crisis resulting in displacement.
The last available IDP figure for Kenya is an estimate of 412,000 provided by the UN Refugee Agency (UNHCR) in January 2013 (UNHCR, January 2013). UNHCR’s 2013 figure included a protracted yet unverified number (about 250,000) of people internally displaced by ethnic, political and land-related violence since the 1990s (OCHA, September 2013), an additional approximately 50,000 registered IDPs who had fled as a result of the 2007/8 post-election violence and who had at the time yet not been resettled (in the former Rift Valley, Nyanza and Western provinces) and a further 112,000 people reported as newly displaced between August and December 2012 as a result of inter-communal clashes prior to the 2013 general elections, particularly in Tana River and in northern Kenya (OCHA, November 2012).
UNHCR’s estimate did not include people displaced by natural disasters, development projects, pastoralist IDPs or the so called “integrated” IDPs. The methodology applied for the 2007/8 registration of PEV IDPs was often inaccurate, inefficient and was not disaggregated by age and gender. As a result, the national IDP database was restricted to the 6,800 households identified and formally recognised by the Ministry of State for Special Programmes (OHCHR, February 2012). Kenyan rights groups have also questioned the transparency of the registration process as some IDPs were missed out or were unable to present themselves when registration was undertaken. The results of a verification exercise are yet to be released.
Over the years many of the 412,000 IDPs reported by UNHCR have settled locally or elsewhere in the country or have returned to places of origin. However, there has been no official assessment of their numbers and remaining protection needs. Data gathering on internal displacement in Kenya generally focuses on instances of fresh displacement caused by violence or rapid-onset disasters such as floods, but there is little quantitative and qualitative data on displacement dynamics after IDPs’ initial flight.
There have been new displacements since UNHCR released its January 2013 estimate. In 2013, 55,000 were reported to be newly displaced as a result of political, inter-communal and resource-based violence particularly in the counties of Marsabit and Mandera (OCHA, January 2014). Over 2,800 people were reported to be newly displaced due to inter-ethnic violence along the border separating the counties of Kericho and Kisumu in March 2014 (KRCS, March 2014; Daily Nation, March 2014).
Tens of thousands more have been displaced by disasters. In 2013, floods destroyed homes, property and livelihoods throughout the country and displaced nearly 180,300 people, though most of them returned after a short time (IDMC disaster-induced displacement database as of 13 May 2014). This number of people newly displaced by floods is an increase over the 2012 figure of 97,600 people (IDMC, May 2013).
Improving the availability of comprehensive data on IDPs disaggregated by age, gender and location (including those in urban settings) is paramount. In 2012, Chaloka Beyani, the UN Special Rapporteur on the human rights of internally displaced persons urged the Government to develop accurate, comprehensive and disaggregated data-collection and database/registration systems inclusive of all categories of IDPs, and to undertake at the earliest opportunity a comprehensive data-collection exercise with a view to considering how best to identify, assess and respond to IDPs’ assistance, protection and durable-solution needs, with particular attention to vulnerable groups (OHCHR, February 2012). Similarly, in its final report in 2013 the Truth, Justice and Reconciliation Commission of Kenya (TJRC) – the body set up with international assistance to strengthen the National Accord which ended the 2007-2008 political crisis – recommended the audit and registration of all 2007/8 IDPs not benefitting from Government assistance, with a particular focus on integrated IDPs (TJRC, May 2013). Neither sets of recommendations have been acted upon.
The great majority of IDPs in Kenya does not live in camps. For example, only about 4,700 of the more than 34,000 displaced by violence in Tana River County in 2012/13 gathered in camps. The vast majority fled to various villages and towns within Tana River and the neighbouring counties of Kilifi, Mombasa and Lamu (IDMC interviews, 13 February 2014).
Given that unregistered IDPs are much less visible and in many cases barely recognised as internally displaced at all, they have been largely excluded from assistance and protection programmes. Even when the Government and national and international humanitarian organisations have responded to the displacement caused by the 2007/8 PEV, a number of serious protection concerns have gone unaddressed. During his 2012 visit to Kenya Dr. Beyani found the protection and assistance provided to be “largely inadequate”, compromising IDP’s basic rights to shelter, food, water and sanitation and their access to schooling and healthcare (OHCHR, February 2012; The Star, April and March 2013). His field visit to Nakuru County in 2014 revealed that the IDP situation there had not improved much, despite the closure of some camps (PWGID, 6 May 2014 – on file with IDMC).
IDPs living in protracted displacement continue to identify as protection concerns inadequate access to land, basic services and livelihood opportunities. Some experienced multiple displacements, from as far back as the 1990s, and are therefore affected by compounded vulnerabilities. Particularly at-risk groups include those living with HIV/AIDS, pregnant and lactating women, children and older persons. Many IDPs are displaced in areas of the country that are environmentally and economically vulnerable and thus enjoy fewer opportunities for integration and development (ECHO/OCHA, May 2014; NRC/IDMC/NI, March 2014). This in turn increases the likelihood of their living in situations of prolonged displacement.
Threats to physical security and integrity
Insecurity is a main issue amongst displaced people particularly in the north (Daily Nation, 30 May 2014). Many say it is a major obstacle to their return and their ability to restart their lives. An assessment in Moyale in September 2013 found 93 per cent of interviewed IDPs considered insecurity due to armed violence, the fear of presence of landmines or explosive remnants of war as well as sexual and gender-based violence as major threats to their communities (KIRA, 11 September 2013).
Even though inter-communal fighting decreased in the first half of 2014, tensions among communities in various parts of the country remain high (AllAfrica, April 2014; IDMC interview with returnees, February 2014). In June 2013, an IDP settlement in Mandera County mainly comprised of newly displaced people following clan fighting in the area was targeted by a grenade attack, resulting in 15 deaths (US DoS, 27 February 2014; BBC, 24 June 2013). Insecurity has also been an issue for more protracted IDPs. The discovery of three bombs planted within a few days in an IDP Camp in Nakuru County in April 2014 spread fear amongst camp residents (Daily Nation, April 2013).
Inadequate access to shelter and sanitation
In the absence of shelter assistance, many IDPs whether on farms or in camps are still living in tattered tents or under tarpaulins five years after their displacement (The People, May 2014; Reuters, May 2014; Daily Nation, September 2013). Their deplorable living conditions leave them exposed to the elements – in some cases, prolonged rains have damaged or destroyed shelter in IDP camps (IDPAC, 19 August 2013 - on file with IDMC). Insecure housing also increases the risk of rape and robbery, especially for female-headed households. Inadequate sanitation contributes to the spread of preventable diseases in IDP settlements, including pneumonia and malaria (US DoS, February 2014; OCHA, January 2014). Those displaced to cities such as Nairobi and Kisumu, particularly women, often find themselves with no option but to live in highly inadequate conditions in informal settlements (UNWOMEN, 2011).
In March 2014, flooding in Baringo County resulted in the destruction of houses and farmland. Lack of shelter assistance reportedly forced residents to move in with relatives and friends for over four months (Standard Digital News, March 2014). The reconstruction of houses destroyed during 2014 clashes in Moyale was among priority protection needs identified through assessments (KNCHR, 6 May 2014 – on file with IDMC).
Health care and education
IDPs’ access to health facilities is often inadequate. Many IDPs live too far away from the nearest clinic and are unable to afford transport and medical care. There is a continuing need for psycho-social support (RCK, 17 December 2013 - on file with IDMC). In areas affected by violence such as Moyale in 2013 or Tana River in 2012, health facilities had to close and services were suspended due to the fighting (IRIN, December 2013; OCHA, July 2013).
Many internally displaced children have had their schooling repeatedly disrupted (KIRA, 11 September 2013). Some have faced difficulties in registering at schools in their areas of displacement, while others are unable to attend as a result of hunger and/or parental inability to pay for uniforms and books. IDPs are generally excluded from secondary education by the fees (Reuters, May 2014). This educational marginalisation of young IDPs clearly has a detrimental effect on their prospects for the future.
Overcrowding of schools in areas receiving IDPs was also an issue in some cases. In Laikipia County, for example, the number of pupils in a primary school reportedly rose from 195 to 700 in a very short time, which resulted in a deterioration of the quality of education and potential health risks (The Star, March and February 2013).
Land and livelihoods
For the majority of Kenyans land is the main if not their only livelihood resource. Many IDPs live in settlements they established themselves in places that are insecure and far from livelihood opportunities. In some cases where the Government supported return and resettlement efforts, the purchase and allocation of land was allegedly not undertaken in a transparent manner, threatening the sustainability of the process (IRIN, January 2013). Inefficient and time consuming land information systems have also complicated planning, zoning and overall land management. Some land offered for resettlement by the Government was unsuitable as it did not support agriculture, had inadequate access to basic services such as water, health facilities and schools and/or exposed IDPs to tensions with local communities (OCHA, July 2012).
Most IDPs were forced to leave all their belongings behind when they fled, including farming tools and equipment. This has prevented them from reassuming their traditional livelihoods either during their displacement or upon their return or resettlement. There are reports that many children (girls in particular) who have been internally displaced since 2007, are too poor to attend school and have no land to farm, are being forced into survival sex (Reuters, May 2014).
Increasingly severe and more frequent droughts, affecting in particular northern pastoralist communities, have eroded traditional livelihood strategies, increased dependence on aid, sparked conflicts with other communities over grazing land and forced many to search for new forms of livelihoods, including in urban areas (NRC/IDMC/NI, March 2014; IRIN, December 2013). Some communities displaced by floods in Kisumu County have said they would rather receive assistance to re-establish livelihoods particularly agricultural, than food aid (Floodlist, April 2014).
The 2007/8 PEV had a serious impact on the livelihoods of urban IDPs as well. Some could no longer generate income as they were no more accepted in neighbourhoods where their businesses were located. Deliberate destruction of livelihoods, including through market stalls being wrecked or work tools looted, was also used as a means to displace people. Many IDPs have been unable to obtain capital to restart their livelihoods. Several livelihood programmes designed for PEV IDPs targeted agricultural activities, thus neglecting the plight of displaced non-farmers. People owning market stalls lost access to rental income as others illegally occupied their property. Even those who have managed to restart businesses have been held back by loss of connections with clients and a lack of acceptance in new neighbourhoods of residence (Brookings, May 2013).
A broad approach is needed to establishing durable solutions in which IDPs themselves participate in exploring the potential for sustainable return to their places of origin, local integration in their places of refuge or settlement elsewhere in the country.
As resettlement and return efforts by the Government have mostly focused on registered IDPs, assistance programmes have thus excluded a significant number of the displaced throughout Kenya, who continue to live in protracted displacement. Although Kenya’s 2012 Act on internal displacement uses a very comprehensive IDP definition, the Government tends to identify IDPs with registered people who fled the 2007/8 post-election violence and it generally holds the position that there are no IDPs left in the country, as PEV-related IDP issues were addressed through the IDP return and resettlement programme (IDMC interviews, April 2014). However, as the UN Special Rapporteur on the human rights of internally displaced persons highlighted at the end of his 2014 visit to the country, “causes of internal displacement [in Kenya] are many and recurrent, and solutions must be pursued more rigorously for all IDPs in an equal manner”. He also added that “the end of displacement cannot be determined by a political decision, but by reality” (OHCHR, May 2014).
Areas where return is possible, both in the short and longer term, need to be identified as a matter of urgency together with consideration of other settlement options for IDPs unable or unwilling to go back to their former homes or livelihoods. It is essential to address inter-communal tensions and land and property disputes which drive displacement or create obstacles to durable returns.
It is also important to provide legal assistance and to facilitate access to legal redress mechanisms. For example, only a few communities displaced by forced evictions have initiated court cases. Major obstacles to accessing justice include the low level of ‘legal literacy’, expensive and distant justice institutions and, in some cases, state support for companies enforcing evictions (The Star, December 2013). There is a need for creating and promoting community-based dispute resolutions mechanisms in conformity with national and international standards, before matters are referred to the formal system (AWC, May 2014).
Host communities should also be consulted and sensitised in order to achieve durable solutions through community-based approaches (OCHA, July 2012). Reconciliation is crucial for resolving conflict-induced displacement. There have been some initiatives but confidence and peacebuilding, particularly at the grassroots level, have been worryingly absent, even in areas where IDPs have already returned or resettled (IWPR, November 2012).
If they are to achieve durable solutions, internally displaced pastoralists require special attention. Like all IDPs, they need to be able to choose their own path. For them the concept of durable solutions must be interpreted more broadly to embrace options for mobile lifestyles, including return to pastoralism or diversification into alternative livelihoods. This will require access to land, markets and education, subsidised restocking, micro-credit schemes in the aftermath of drought, vocational training, the facilitation of national and regional strategic mobility and the establishment of social protection schemes appropriate for the needs of pastoralists (NRC/IDMC/NI, March 2014; IRIN, April 2013).
National legal and institutional frameworks
Since the 2014 general elections, responsibility for matters of internal displacement lies with the Ministry of Devolution and Planning and no longer with the now dissolved Ministry of State for Special Programmes (MoSSP). Operational aspects related to disaster management fall under the Ministry of Interior. Though IDP issues are seen to be a national Government responsibility, county and central authorities will have to continue working alongside them to ensure effective management and equitable allocation of national and local resources (ICG, May 2013; PWGID, 6 May 2014 - on file with IDMC).
The national Protection Working Group on Internal Displacement (PWGID) was created in 2009 and replaced the IDP Protection Cluster that had been established the year before to coordinate humanitarian assistance in Kenya. The PWGID is chaired by the Ministry of Justice and Constitutional Affairs (MoJNCCA) and the Kenya National Commission for Human Rights (KNCHR).
Kenya is a member state to the 2006 Pact on Security, Stability and Development in the Great Lakes Region and its protocols but it has yet to sign and ratify the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa – the Kampala Convention (KC). Its ratification has been delayed by the fact that Kenya’s 2010 constitution marked a change in how international and Kenyan national law intersect, moving from a dualist to a monist legal system. This required Kenya to pass legislation on domestication of treaties. A Ratification Act was eventually adopted in December 2012, so the country is now in a position to ratify the KC (IDMC/NRC/AU, December 2013) but has not yet done so.
Kenya has, however, made significant progress towards a comprehensive legal and policy framework on internal displacement. This was driven by the level of prominence afforded to internal displacement following the 2007/8 PEV, when the inadequate and uncoordinated nature of responses highlighted the need for a framework to act as a platform for collaboration and coordination (RCK/DRC, January 2013). PWGID members worked closely with MoSSP and MoJNCCA to draft in March 2010 a National Policy on the Prevention of Internal Displacement and the Protection and Assistance to Internally Displaced Persons in Kenya. Largely based on international and regional instruments and standards (RCK/DRC, January 2013), it provides for a comprehensive approach to addressing internal displacement caused by conflict, other forms of violence, natural disasters and development projects, irrespective of IDPs’ location and ethnic affiliation. It outlines institutional frameworks, roles and responsibilities for state and non-state parties in all phases of displacement. It sets out measures to prevent, manage and mitigate displacement risks and to protect and assist IDPs to find durable solutions. The draft policy was endorsed by the Kenyan cabinet in October 2012, but, unfortunately, there has been no subsequent progress towards its final adoption (Cabinet, October 2012).
In November 2010, Kenya established a Parliamentary Select Committee on the Resettlement of IDPs, whose mandate included preparing a draft bill on forced displacement. The draft policy was therefore complemented by the 2012 Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act (hereinafter “IDP Act”), which received presidential assent on 31 December 2012. The IDP Act largely reflects key protection principles throughout the displacement process and establishes an institutional framework for IDPs’ protection and assistance. However, little progress has been made towards its implementation – in particular the establishment of its inclusive implementation committee, the National Consultative Coordination Committee (NCCC). There has been little awareness raising or publicity about the Act with responsible authorities, the general public or IDPs.
Some now feel that the draft IDP policy has been overtaken by the Act and there would be less added value in adopting the draft policy (PWGID, 6 May 2014 – on file with IDMC). However, an approved IDP policy would certainly help facilitate implementation of the IDP Act. Both instruments are essential to improve the Government’s response to the needs of IDPs and the affected communities. The fast-tracking of the operationalisation of the IDP Act and policy and the ratification of the KC are some of the recommendations on forced displacement that the TJRC included in its final report (TJRC, May 2013).
Kenya also has a plethora of frameworks that govern disaster management and are relevant to the prevention of and response to displacement caused by disasters. These include a draft national disaster management policy developed in 2009 and a disaster management bill. A national disaster response plan is already in place, linked to the Vision 2030 development strategy for northern Kenya and other arid lands. The Ministry of Environment’s national climate change response strategy 2010 refers to displacement as a result of sudden and slow-onset disaster impacts and predicts an increase in population movements. The country is also a participant in the Programme of Action for the Implementation of the Africa Regional Strategy for Disaster Risk Reduction 2006-2015. A number of other Government initiatives aim to prevent or minimise the extent and impact of internal displacement, such as the 2009 draft national policy on peacebuilding and conflict management (OHCHR, February 2012; FIC/KRCS/NPI, July 2013).
Kenya has made significant progress in developing a comprehensive land-related framework. It adopted a National Land Policy in 2009 and the 2010 Constitution includes a chapter on land and environment. A series of new laws adopted in 2012 include the Land Act and the Land Registration Act. A National Land Commission was formed in 2013 to act as the lead agency in land matters, working with the Ministry of Lands, Housing and Urban Development and county-level institutions. It has developed a five-year national plan to guide implementation of the National Land Policy.
Despite the progress, Kenya’s land reform has not been completed. Two important pieces of legislation are still pending, the Evictions and Resettlement Procedures Bill (establishing procedures to be applied in case of evictions) and the Community Land Bill (intended to safeguard community land rights) (Standard Digital, 2 April and 9 April 2014). Clear laws on the exploitation of natural resources and mechanisms to regular businesses so as to minimise negative consequences such as insecurity and evictions are also needed (Wall Street Journal, October 2013; IRIN, October 2013). Thorough implementation of these legal and policy frameworks is fundamental to ensure real protection of IDPs’ rights and prevent further displacement.
Response to internal displacement
In May 2008, the Government launched Operation Rudi Nyumbani (“return home” in Swahili) in an effort to close camps and facilitate the return or resettlement of around 350,000 PEV IDPs. A national humanitarian fund was set-up to fund transport home, (re)construction of houses, livelihoods (in particular farming) and reconciliation initiatives. The international community provided non-food items, shelter and food assistance, supported basic services such as schools and health facilities and strengthened policing capacity in areas targeted by the operation (Reliefweb, 2008; Saferworld, 2008).
The provision of assistance was criticised as inadequate and too slow. IDPs have complained that it did not arrive for months or even years after their displacement (Daily Nation, September 2013; KTN, February 2012). They also expressed concern about protracted land acquisition procedures and discrepancies between central and local databases, which led to the exclusion of certain displaced groups from Government resettlement efforts (RCK, 29 April 2014 - on file with IDMC; Kenya Today, March 2014; Standard , September 2013; PWGID, 22 July 2013 - on file with IDMC).
The Rudi Nyumbani operation was also criticised for its bias towards land-owning rural IDPs. Pressure put on IDPs to move out of the camps raised concerns about the voluntary nature of the process. More could have been done to secure IDPs’ substantive participation in the planning and implementation of the operation. The Government reportedly bought land for resettlement without consulting IDPs who were unable to see the sites in advance in order to assess their viability and security (KNA, April 2012; RCK, 2012). There have been allegations that state officials embezzled funds earmarked for resettlement of PEV IDPs (IWPR, April 2013; IPS, January 2012).
In the absence of adequate assistance members of around 7,000 households who had not owned land prior to their displacement organised self-help groups, purchased plots of land and settled in 20 tented camps (UNDP, September 2011). Some IDPs remain in transit camps, while others stayed behind in the camps where they had originally taken refuge. This is particularly the case for those who had not owned land and those who feared new attacks in the absence of meaningful reconciliation with those who had displaced them. Many lack the resources to rebuild their lives and are waiting for the Government to provide them with necessary help.
In September 2013, the Government announced that it would compensate each of the 8,298 IDP households still living in camps with KSH 400,000 (c. US$4,600), and close all camps by the end of the month (Daily Nation, September 2013). In October, the Kenyan president announced that all IDPs had been resettled, though human rights groups challenged his statement (IDPAC, March 2014; VOA, October 2013). In March 2014, in a report to the Kenyan parliament the president acknowledged that a total of 777 households had received the cash payments and that the exercise was continuing (Kenya Today, March 2014).
State response to internal displacement has focused on 2007/8 PEV IDPs while the situation of people displaced by earlier or subsequent violence or by other causes has not been adequately addressed. This highlights the importance of the 2012 IDP Act being comprehensively implemented as a matter of urgency. A coordinated response will not be possible without tackling the current lack of comprehensive and up-to-date data on the situation of IDPs throughout Kenya.
When new displacement due to disasters or violence occurs, the Government – in collaboration with the Kenya Red Cross Society (KRCS) and other operational partners – responds by providing immediate humanitarian assistance with interventions to provide water, sanitation and shelter assistance (Ministry of Devolution and Planning, March 2014; IFRC, November 2013; USAID, September 2013; OCHA, July 2013).
Despite on-going displacement, levels of service provision and donor attention continue to decline. Several civil society organisations that for years have played a major role in the protection and assistance of IDPs have been left with very limited funding for IDP work. For instance, UNHCR’s decision in 2013 to stop funding IDP-related activities has had a particularly negative impact on the activities of KNCHR and knock-on impacts on the activities of the PWGID and of those of some of its members.
Moreover, there is a clear gap between short-term emergency measures and the comprehensive medium and long-term initiatives that IDPs need to end their displacement and restart their lives. A long term perspective, including the early planning of recovery strategies, should be embedded in any humanitarian programme from the start (Guardian, October 2013). In case of inter-communal violence, for example, the Government often responds with a strong focus on enforcing security while neglecting other sectors requiring interventions, such as peacebuilding and social cohesion programmes (IRIN, December 2013).
Urgent action is therefore necessary to achieve durable solutions, but also for better preparedness. Otherwise, even when protection measures and assistance are provided, the lack of systematic response and early-warning systems, combined with the lack of systematic disaster prevention measures, will result in more expensive and ad hoc approaches (UNDG, March 2014; OCHA, February 2014; IRIN, April 2013). Some on-going initiatives at the regional and national level have potential to prevent displacement, build communities’ resilience and improve the management of emergencies. However, there is still a need to reinforce emergency preparedness and response by scaling up existing national mechanisms, such as social protection safety nets and contingency funds for local response (ECHO, April 2014).