Making a case for the right to access justice for non-citizens in Kenya: The role of law clinics in ensuring the right to legal aid for migrants


9By Rugenge wa Nciko*

At the international level, no universally accepted definition of "migrant" exists. The International Organisation of Migration defines a migrant as any person who moves away from their place of usual residence, whether within their country or across an international border, temporarily or permanently, and for a variety of reasons that are not a genuine fear of prosecution, is a migrant.[i]

In the last several years, more than 110,000 Somali nationals have migrated to Kenya's Dadaab camps driven by a devastating combination of conflict and drought in search of food, water, and safety.[ii] The migration[iii] of people from Somalia to Kenya did not start recently. Since the attainment of Kenya's independence to the promulgation of the 2010 Constitution, masses of migrants have moved from Somalia into Kenya.[iv] During the Moi regime, the government mandated the screening of all Somalis over eighteen (18) years and those lacking the proper documents risked detention without trial or deportation. This led many Somali nationals to flee the country, citing discrimination and persecution.[v] The number of people deported by the Kenyan government as a result of the screening is unknown.[vi] Official sources claim to have expelled at least two thousand "illegal aliens" by January 1990. However, many more migrants have been deported before this figure was reported and it does not include the hundreds of people who left to avoid further intimidation.[vii]

In 2010, Kenya promulgated a transformative constitution,[viii] aimed at transforming the society from one where the right of access to justice was not fully recognised to one where this right is guaranteed to everyone. Chapter four (IV) of the 2010 Constitution guarantees the fundamental rights and freedoms to all persons and groups, including non-citizens. Additionally, Article 48 specifically stipulates that 'the state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice'.[ix] The Legal Aid Act, elaborates on this provision.[x] The Act aims at establishing a legal and institutional framework to promote access to justice by providing affordable, accessible, sustainable, credible and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution, including non-citizens.[xi]

However, even after the promulgation of the 2010 Constitution and the enactment of the 2016 Legal Aid Act, Somali migrants still do not enjoy the right to access to justice.[xii]

As a result of climate change, more than one million Somalis are displaced with the majority migrating to Kenya.[xiii] Unfortunately, these migrants find it difficult to enjoy their rights in Kenya.[xiv] They are constantly threatened and their human rights are more likely to be violated by the police.[xv] According to Amnesty International, in January 2018 alone, a local NGO offering legal aid to refugees reported that 31 Somali nationals, including children, were arrested in Garissa, North-Eastern Kenya, and charged with being unlawfully present in Kenya.[xvi] The offence carries a penalty of three months in jail upon conviction unless the suspect could pay a fine of between $100 and $1000, which most Somali migrants facing drought and wars in their home country do not have.[xvii]

Moreover, Kenya has deported hundreds of Somalis back to Mogadishu in the past years, including registered refugees, violating international obligations. Additionally, the Kenyan government has repeatedly threatened to close Dadaab and force thousands of refugees over the border.[xviii] Kenya has obligations under its 2010 Constitution and international law to protect non-citizens, and migrants, particularly refugees. It is a signatory to the 1951 UN Convention relating to the Status of Refugees, and its 1967 Optional Protocol, as well as the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, all of which oblige it to grant access to asylum to those seeking it – including Somalis.[xix]

Nonetheless, in 2021, five (5) Somali migrants, Mohamed Ali, Sharif Ahmed, Zamzam Mohamed, Hamdi Aden, and Sowdha Mohamud were apprehended by police at the Garissa-Tana bridge barrier for failing to produce identification documents upon request.[xx] A subsequent investigation by the police revealed that they were in Kenya illegally and they intended to travel to Nairobi without valid travel documents. After pleading guilty, they sought leniency. However, Garissa Chief Magistrate, Cosmas Maundu found them guilty and fined them Ksh150,000 each with the alternative of a one-year imprisonment if unable to pay. Upon payment or completion of the jail term, they were to be deported back to Somalia.[xxi] It is clear that Kenya lacks proper coordination in addressing the needs of migrants' access to the justice process.[xxii]

The list of Somalis in Kenya who do not approach courts of law seeking access to justice because they lack legitimate identification papers is not exhaustive.[xxiii] This makes these migrants more susceptible to police brutality and not enjoying the right of access to justice. The author believes that law students can play a crucial role in bridging this gap by providing pro bono services in ensuring that migrants have access to justice. This renders the role of law clinics indispensable in offering legal aid services and facilitating the right of access to justice for migrants.

This paper is an abstract for a proposed article. The author has three objectives in this paper. First, the author aims to elaborate the historical challenges faced by Somali migrants in accessing justice in Kenya, from the colonial period to the present. Secondly, the author seeks to assess the effectiveness of legal aid in Kenya in ensuring access to justice for Somali migrants and other non-citizens. Lastly, the author seeks to analyse the role of law clinics in Kenya, particularly the one at Kabarak University Law School, which is currently focusing on migration law and using street law methods in teaching at the Kabarak University Centre for Legal Aid and Clinical Legal Education (CLACLE),[xxiv] to empower migrants with knowledge about their rights and facilitate their access to justice.

*The author is the Intake Director at the Centre for Legal Aid and Clinical Education (CLACLE) and an Editorial Trainee at Kabarak Law Review.

[i] International Organization for Migration (IOM), 'Who is a migrant?', 2020 - <https://www.iom.int/who-migrant-0#:~:text=IOM%20Definition%20of%20%22Migrant%22,for%20a%20variety%20of%20reasons.> on 31 May 2024.

[ii] Moulid Hujale, 'Kenya's Dadaab camp swells with Somalis fleeing drought, conflict', The UN Refugee Agency (UNHRC), 28 February 2023 - <https://www.unhcr.org/news/kenyas-dadaab-camp-swells-somalis-fleeing-drought-conflict> on 31 May 2024.


[iv] Minorities at Risk Project, 'Chronology for Somalis in Kenya', 2004. <https://www.refworld.org> on 1 June 2024.

[v] Minorities at Risk Project, 'Chronology for Somalis in Kenya'.

[vi] Human Right Watch, 'Screening of ethnic Somalis: The cruel consequences of Kenya's passbook system, 5 September 1990.

[vii] Human Right Watch, Screening of ethnic Somalis.

[viii] Willy Mutunga, Transformative constitutions and constitutionalism: A new theory and school of jurisprudence from the global south? 8 The Transnational Human Rights Review (2021).

[ix] Constitution of Kenya (2010) Article 48.

[x] Legal Aid Act No 16 of 2016.

[xi] Legal Aid Act No 16 of 2016, Section 3(a).

[xii] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse', 20 February 2018.

[xiii] 'Submission to the UN Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change: Addressing the human rights implications of climate change displacement including legal protection of people displaced across international borders,' 8 November 2022.

[xiv] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse', 20 February 2018.

[xv] Human Rights Watch, 'Kenya: Police Abuse Nairobi's Refugees'.

[xvi] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse'.

[xvii] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse'.

[xviii] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse'.

[xix] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse'.

[xx] Erick Kyalo, 'Kenya News Agency, Somali Immigrants Charged for Being In Country Illegally', Kenya News Agency, 12 April 2021 <https://www.kenyanews.go.ke/somali-immigrants-charged-for-being-in-country-illegally/#:~:text=Five%20Somali%20immigrants%20were%20on,bridge%20barrier%20on%20April%208> on 9 June 2024.

[xxi] Kyalo, 'Kenya News Agency, Somali Immigrants Charged for Being In Country Illegally'.

[xxii] Ministry of Interior and Coordination of National Government, Kenya Voluntary Country Review Report on Implementation of the Principles and Objectives of Global Compact on Migration (GCM), National Coordination Mechanism Secretariat, December 2020.

[xxiii] Amnesty International, 'Kenya: Failure to register Somali refugees putting them at risk of starvation and abuse', 20 February 2018.

[xxiv] The Centre for Legal Aid and Clinical Legal Education (CLACLE), At its heart, CLACLE is dedicated to facilitating clinical and experiential learning for law students, providing them with hands-on opportunities to apply legal theories and principles in real-world scenarios. This approach not only enhances their understanding of the law but also equips them with essential skills for their future legal careers. 

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