Al-Dahas v Attorney-General

• Jurisdiction: Kenya
• Date: 01 March 2007
• Court: High Court (Kenya)

Kenya, High Court

(Emukule J)

Al-Dahas

and

Attorney-General and Others1

Human rights Refugees Rights of refugees under international law and municipal law Constitution of Kenya, Section 70(a) United Nations Convention Relating to the Status of Refugees, 1951, Articles 31, 32 and 33 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 Obligations of States in refugee protection Limitation of individual rights in international and municipal law Obligations of asylum seekers to contact authorities in receiving State

Human rights Refugees Immigration Act, Sections 3 and 8 Detention of prohibited immigrants Repatriation Whether extended detention contrary to rights under Constitution and international conventions Whether failed repatriation rendered deportation orders invalid Whether Sections 3 and 8 of Immigration Act contrary to provisions of Constitution Whether continued detention of applicant unlawful The law of Kenya

Summary: The facts:The applicant filed an application with the High Court under Section 84 of the Constitution of Kenya seeking enforcement of his fundamental rights and freedoms. The applicant, who had previously been recognized as a refugee by the United Nations High Commission for Refugees (the Interested Party), claimed that his continued detention without charge was unlawful and a violation of his fundamental rights and freedoms as enshrined in Section 70(a)² of the Constitution of Kenya and numerous international human rights instruments to which Kenya was party. The applicant sought various declarations from the Court recognizing his treatment as unlawful and unconstitutional, and effecting his release from State custody into that of the Interested Party.

The respondents replied that the applicant was not in Kenya as a refugee but as a prohibited immigrant as defined by Section 3(1), subsections (f), (h) and (k), of the Immigration Act.³ The respondents argued that, since the

applicant was in Kenya unlawfully, the Minister was empowered under Section 8(1) of the Immigration Act to order his removal, and that, under Section 8(2) of the Act,4 the applicant could be lawfully detained until his departure from the State

Held:The application was dismissed. The acts of the respondents were not unconstitutional and had not breached the applicant's fundamental rights under either the Constitution or international human rights instruments. Each party was to bear their own costs and, unless Kenya accepted the applicant as a refugee, the Interested Party was to find a third country to host the applicant in the terms of the United Nations Convention Relating to the Status of Refugees (RC).5

(1) Sections 3 and 8 of the Immigration Act were not inconsistent with Section 3 of the Constitution of Kenya. The orders made under the Immigration Act and Section 26 of the Penal Code for the applicant's removal remained valid and enforceable in accordance with their terms. The failed attempts to repatriate the applicant had not affected the validity of the orders since an order for the removal of a prohibited immigrant was only completed when the prohibited immigrant had either been handed over to a third country as a refugee or placed under the authorities of his country of origin (p. 344).

(2) International human rights instruments not only imposed stringent obligations on host and receiving States but also considered the needs of those States to maintain security and public order. International conventions such as the RC and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa⁶ imposed strict positive obligations upon asylum seekers which the applicant had failed to meet.

(a) The theory and practice of international law, as demonstrated by Article 31(1) of the RC,⁷ required that a person fleeing his own country at the first instance upon entering another country present himself to the immigration or security agents of that State and show good cause for being there. The applicant had failed to report his presence in Kenya to any of the Kenyan authorities and had evaded and avoided the Kenyan authorities until his arrest for immigration offences some time after he first entered the country (pp. 3403).

(b) The fundamental rights and freedoms granted under the Constitution and various United Nations and African Union Conventions relating to refugees were universal. However, all individual rights were subject to the enjoyment of those rights by other individuals and the public interest and so were not absolute. As a non-national in Kenya, the applicant was entitled

to the protection of his fundamental rights and freedoms subject only to the limitations as stated in Section 70 of the Constitution (pp. 3457)

(c) The applicant had been kept in lawful custody within the terms of Section 8(2)(b) of the Immigration Act and in accordance with Section 70 of the Constitution pending the finding of a suitable third country by the Interested Party. The respondents had not contravened any provisions of the Bill of Rights in the Constitution of Kenya or any provisions of human rights or refugee conventions (pp. 3448).

The following is the text of the judgment of the Court:

I. THE APPLICATION

By an Application brought by way of an Originating Summons pursuant to the provisions of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the the Individual) High Court Practice and Procedure Rules, 2001 (now revoked by the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules 2006 (LN No 6 of 2006)), one Adel Mohammed Abdukader AlDahas (the Applicant) sought the declarations following against the Hon. the Attorney-General (1st Respondent), the Principal Immigration Officer (2nd Respondent) and the Minister of State for Provincial Administration and National Security (3rd Respondent). The United Nations High Commission for Refugees (UNHCR) was joined as an Interested Party. The declarations sought are namely

• (a) A declaration that the Declaration of the Minister of State dated 25 May 2001 declaring that the entry and presence of the Applicant (in Kenya) is contrary to the national interests (of Kenya) is unconstitutional to the extent that it is not based on any facts at all;

• (b) A declaration that the Declaration by the Minister of State dated 25 May 2001 declaring that the Applicant be immediately removed from Kenya to his country of origin, Iraq, is in breach of the United Nations Convention Relating to the Status of Refugees;

• (c) A declaration that the Universal Declaration of Human Rights (UDHR), 1948 bars the Respondents from continued infringement of the rights of the Applicant;

• (d) A declaration to the extent that the Applicant was removed from Kenya on 6 October 2001 and remained outside Kenya until 8 October 2001 by the Minister's declaration of 21 May 2001 ceased to have effect;

• (e) A declaration that the continued detention of the Applicant at Kileleswa Police Station or any other police station or prison is unconstitutional to the extent that there is no lawful order for his continued detention;

• (f) A declaration that the Respondents forthwith release the Applicant to the Interested Party; and

• (g) An order that the Applicant's costs of the Application be borne by the Respondents.

The Originating Summons was supported by the Affidavit of the Applicant sworn on 10 November 2001 and filed with the Application on 11 November 2001, and the following grounds

• (a) the Ministerial declaration made on 25 May...