Case_Study_Idps_Kenya_and_Somalia

Internal Displacement: The Cases of Kenya and Somalia This Paper looks at causes of conflict-induced internal displacement in two East African countries. It compares and contrasts the causes of displacement in Kenya and Somalia and examines national and international humanitarian and political responses. While Kenya has functioning institutions and vibrant civil society and presence of international diplomatic and humanitarian community, the case of Somalia is the opposite. However, both countries have significant numbers of displaced people and the response of the state, especially in application of the UN Guiding Principles on Internal Displacement, have been lukewarm. The overriding question in this Paper is thus the limitation and prospects of applying the Guiding Principles in preventing and responding to situations of conflict-induced displacement in the two countries. The Guiding Principles on Internal Displacement Some ten years ago, Francis Deng, the then Representative of the Secretary-General on internally displaced persons, presented the “Guiding Principles on Internal Displacement” to the Commission of Human Rights. These Principles set out the basic tenets of a human rights-based approach to protecting and assisting internally displaced persons (IDPs)—protection from displacement, protection and assistance during displacement, and guarantees for return, settlement, or reintegration in safety and dignity. The Guiding Principles (GPs) define IDPs as “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, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border” (OHCHR-UNOG, 1998). They were developed by a team of international legal experts and presented to the Commission on Human Rights in 1998. The 30 Articles of the GPs tackle the specific vulnerability of IDPs who do not benefit from the protection of international refugee law because they have not crossed international borders. The GPs maintain that national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction. They set out the rights and guarantees relevant to the protection of IDPs in all phases of displacement, including prevention of displacement, protection during displacement, and the rights to long-term solutions, including resettlement elsewhere in the country or local integration at the place they were displaced to. The GPs provide detailed guidance on the rights of IDPs during each of these phases, including the guarantee of safe access to essential food and potable water, basic shelter and housing, appropriate clothing, and essential medical services and sanitation. Although the Guiding Principles themselves do not constitute a binding legal instrument, they are consistent with international human rights law and international humanitarian law: they reflect human rights guarantees that already exist in international human rights and humanitarian law that is legally binding for states. The Guiding Principles were intended to serve as a practical framework and assist governments, regional organizations, and other relevant actors in ensuring an appropriate response to their situations. However, at the regional level, Africa has shown the most progress in transforming the Guiding Principles into a binding international instrument. In June 2008, the Protocol on the Protection and Assistance to Internally Displaced Persons to the Declaration on Peace, Security, Democracy and Development in the Great Lakes Region entered into force. This Protocol is the first and only binding multilateral treaty on IDPs in force.[1]Protracted displacement is seen as a major destabilizing element in much of Africa. There are approximately 12 million IDPs in Africa, of a global total of around 26 million. Unlike refugees who fall under the protection of international instruments such as the Organisation of African Unity Convention Governing the Special Aspects of Refugee Problems in Africa, and the United Nations (UN) Convention relating to the Status of Refugees, and who have a specialist UN agency to assist them, namely UNHCR, there were no comparable standards or mechanisms to safeguard the rights of IDPs before 2008. Lack of binding legal frameworks There is still no international institution for dealing with IDPs. Sustainable IDP protection during all the phases of displacement must be embedded in both international and national law, calling actors to establish binding legal mechanisms on IDP protection. But this alone is not enough. IDP problems must be given more focus and weight than has been the case. Treating the IDP problem merely as a national responsibility will not bring corresponding positive change to the lives of IDPs. There is a need to have internationally agreed standards on monitoring (of state acts of commission or omission towards the promotion of welfare and protection of IDPs, for instance by the United Nations setting aside a body to monitor the welfare and protection of IDPs just like the way UNHCR is designated to monitor the same for refugees. This body should establish binding legal frameworks to which governments’ accountability can be measured. This, together with national laws, will contribute to the change in both practice and policy. Many analysts, including the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons (RSG), have recognized that addressing restitution, compensation and land reform issues are crucial to developing long-term solutions to displacement.[2] These can only be done if there are national legal frameworks and political will to implement them. Instead, IDPs often have to rely on ad hoc arrangements and non-state actors willing (and able) to assist and, on occasion, protect them. Their own state is often unable or unwilling to assist and protect them, with the international community often being unable or unwilling to intervene. In Kenya, for instance, there has been a perception that the ethnic Kikuyu group has accrued wealth and power at the expense of other Kenyans; a situation which led to targeting of this group during the December 2007 post-election violence. Sometimes, the state apparatus itself was party to the internal feud, if not the cause, and proved incapable if not unwilling to protect its people. Worse still, displacement of certain groups at times has become the very objective of the state. In 1991 and 1997, it was widely reported that the Kenyan state apparatus was behind the clashes that took place in the Rift Valley Province. The prevalence of internal conflicts challenges the foundation of contemporary international relations, premised on the principle of state sovereignty. The causes of most conflicts derive from internal power struggles over who controls sovereign power, which may coincide with ethnic or sectarian cleavages within society. Given the international system’s prevailing norms, outsider access to victims required permission from the very authorities who were abusing them. Human rights groups, both intergovernmental and nongovernmental, confronted the traditional bulwark state sovereignty and its corollary principle, non-intervention in domestic affairs, as is the case in Darfur, the Mount Elgon region in Kenya, and the Somali region of Ethiopia, just to name a few. Over the past two decades, the ratio of refugees to internally displaced persons has seen a dramatic reversal. The number of refugees at the beginning of the 21st century is fewer than ten million and the number of IDPs today stands at some 26 million. When IDP data was first gathered in 1982, there was one IDP for every ten refugees; at present the ratio is approximately 2.6:1. Special Vulnerabilities Forced displacement is not just a passing event in people’s lives. It is a devastating transformation. It means that from one day to the next families lose their homes and livelihoods and are forced to leave behind all they had cherished. As a result, communities break apart under the stress of displacement, resulting in marginalization, abject poverty, exploitation, sexual and gender-based violence, and loss of community culture and tradition. Family members are all too often separated or exposed to malnutrition and disease. Children suffer from lack of access to education and a higher risk of child labour, sexual exploitation or recruitment into armed groups. In short: internal displacement shatters lives. Not surprisingly it is easier to displace communities than to rebuild them. Individuals and communities displaced within their own country share the experience of dislocation with refugees who have fled to another country. Both refugees and IDPs are victims of human rights violations and have urgent protection needs. It is true that as citizens or residents they can invoke all the rights available to the population of their given state. However, displaced persons have very specific needs not shared by the population. They need to find a location and shelter where they are safe; to access humanitarian assistance and livelihoods away from home; and be able to seek restitution of the property they left behind. International attempts to assist IDPs are often hampered by a lack of security, by physical and political obstructions, and by the very size of internally displaced populations. It is very difficult to get accurate figures for IDPs because populations are constantly fluctuating or inaccessible: some IDPs may be returning home while others are fleeing, others may periodically return to IDP camps to take advantage of humanitarian aid; some return home temporarily but come back to their place of displacement, or move elsewhere. Access for IDP populations to humanitarian assistance is often difficult, particularly (though not exclusively) in conflict areas. Often, IDP camps are controlled by state and non-state actors, who are unwilling to allow free access for humanitarian organizations. In many conflict zones insecurity presents a major obstacle to humanitarian staff. In some of the large-scale natural disasters, access has been severely hampered by the physical obstructions presented by massive infrastructure damage, remote locations and lack of appropriate transport. Protecting IDPs is a major challenge for governments and humanitarian organizations alike. In conflict, whilst threats are often more obvious, ability to prevent or respond quickly to abuses when they occur are often greatly hampered by lacking means of entry. Governments face major challenges including limited resources, insufficient awareness of the needs and situations of IDPs, as well as a lack of political will to protect them. Durable solutions for IDPs are elusive due to the intractable nature of conflicts, the causes of which relate to the failure of democracy and equitable share of political and economic resources; the failure of sustainable human development process, the failure to deal with negative ethnicity, and the failure of the state to meet its obligations in addressing social and humanitarian consequences of conflicts. Failed State or Failure of the State: The Cases of Somalia and Kenya[3] Kenya In contrast to the ‘absence’ of structures of governance in Somalia over the last decade or so due to instability and breakdown of virtually all the institutions of governance, displacement in Kenya was and still is occurring despite the presence of international diplomatic missions, numerous United Nations agencies and other international organizations, well developed national institutions of governance that include oversight institutions and multi-party system, vibrant and robust civil society and the media. Yet, violence and mass displacement occur despite the above and early warning information provided by organizations like the Internal Displacement Monitoring Centre. At a time when the outbreak of most conflicts can be foreseen, and preventive action, early warning, and cluster approach occupy a significant part of the international funding and agenda, early detection and prevention of conflict, violence and displacement is still lacking in Kenya. A pattern of violence and associated displacement in Kenya around and during elections, as well as during dry seasons in pastoralist areas in the north-west and north-east characterizes the Kenyan scene. During the December 2007 election, some 600,000 people were displaced, many of them having been previously displaced. Chronicling previous politically-induced displacements in 1992, 1997, and 2002, the Commission of Inquiry into Post-Election Violence (CIPEV)[4] described internal displacement as a “permanent feature” in Kenya’s history. Large-scale violence in the Rift Valley is attributed to the distribution of land rights after Kenya’s independence in 1963. The then new Kenyan government embarked on a policy of land distribution to its nationals. However, it is claimed that land was distributed in favour of the president’s Kikuyu ethnic community at the expense of indigenous groups who historically occupied the land and who were displaced by the British settlers before independence. It is this that has led to the politicization of land (and ethnicity) in later years and to serious political and humanitarian ramifications. Violence is still ongoing in some parts of the country. Displacement unrelated to elections continues to affect regions like Mt. Elgon and pastoralists areas in the north of the country. In Mt. Elgon, security operations by the government against the militia group Sabaot Land Defence Force (SLDF) in 2008 (and by the latter against certain communities) continued to lead to loss of lives and livelihoods and the displacement of thousands of people. According to the Kenyan Red Cross, at least 500 died and 100,000 were displaced following three years of unrest in Mt. Elgon. According to UN-OCHA (United Nations Office for the Coordination of Humanitarian Affairs), the cumulative number of killings in pastoral areas in 2008 alone is 356. In September 2008 in northern Kenya, fighting over water and pasture led to the death of six people and displacement of hundreds along the Isiolo and Samburu border Districts. In north-eastern Kenya, a combination of inter-clan conflict and a security operation by the government to contain the situation led to the displacement of up to 7,000 people in the Mandera and Elwak Districts in November 2008. Somalia The demise of the socialist government of Siad Barre in 1991 led to a fratricidal war in the country that still bedevils Somalia up to the present. With no effective government, the country has been at the mercy of a myriad of groups that include clan warlords, extremists, pirates, and “war by proxy” between Ethiopia and Eritrea especially from December 2006. Official estimates of the number of Somalis displaced internally as a result of conflict are at some 1.3 million people. From the 1970s onwards until today, over one million other Somalis have crossed borders to seek protection due to a combination of factors related to both internal and external dynamics of the country’s conflict; naturally affecting the entire Somali population in one form or another. The conflict in Somalia has only surfaced at ad hoc agendas of Western governments, and international action, unlike Kenya[5], has been limited to a flawed regional security intervention accompanied by a frustrated humanitarian operation. Although displacement is massive and humanitarian need great[6]—a human manifestation of state collapse—Somalia has never received the sustained and concerted attention necessary to break the cycle of conflict and national recovery. Like Afghanistan, it languishes in a category of ‘stateless societies’, whose people remain beyond the reach of universally accepted standards for basic human rights. The displacement situation in Somalia from the 1990s to the present is a symptom of the collapse of Somalia as a state and is rooted in the complexities of power shrouded in ethnic, regional, and international geopolitics. The conflict and civil insecurity across most of southern and central Somalia, and the border conflict between Puntland and Somaliland in the north and northwest from 2007 has caused massive displacement, particularly from Mogadishu and its environs. At the beginning of 2009, there were an estimated 1.3 million IDPs (including an estimated 400,000 people in situations of protracted displacement since 1991). Massive displacement was witnessed from 2007 to around January 2009 when fighting intensified in civilian areas as a result of Ethiopian intervention in Somalia at the end of 2006. In January 2007, Transitional Federal Government Forces (TFG) backed by Ethiopian forces, took control of much of south and central Somalia away from an Islamist movement known as the Union of Islamic Courts (ICU). Violence subsequently escalated in the capital Mogadishu and in much of south-central Somalia as Islamist militias and their supporters adopted guerrilla insurgency tactics, making the fighting the worst since the civil war of the early 1990s. Human rights groups estimate that some 16,000 civilians were killed from January 2007 to December 2008. The recent events leading to a politically-negotiated agreement in Djibouti that culminated in the election of a new president by parliament and the withdrawal of Ethiopian troops in January 2009 has reduced the intensity of the conflict, but has yet to stabilize the country or have any meaningful outcome for the assistance or return of displaced people. Kenya — Somalia. Have the Guiding Principles Made a Difference' In Kenya, a number of recent studies show how the failure to follow the Guiding Principles has led to unnecessary suffering for IDPs. A study by the Kenya Human Rights Commission, which was released on 28 October 2008 points to gross violations of the Principles in the management of the affairs of displaced people in Kenya, especially with regard to tackling causes of displacement and the manner in which the government handled the return of the displaced. The situation in Kenya as it stands presents enormous challenges for finding durable solutions for IDPs. For starters, perpetrators, the violent acts of whom lead to displacement in the first place, have never been persecuted, and this state of impunity has caused further displacement. Second, the lack of cohesion in government and the presence of those suspected of inciting violence in high positions in government (including the Cabinet) and the use of IDPs for political ends make it hard to achieve a coherent strategy or a national IDP policy. It was unfortunate that, just as Kenya seemed to be moving towards official endorsement of the Guiding Principles, electoral violence led to such massive new displacement. Without the Principles, however, things would have been worse. Trainings and workshops have led to wider awareness of the Principles, and government officials do claim that its policies are based on recognition of them. Media and civil society are increasingly aware of the Principles and are using them to advocate on behalf of IDPs. In the case of Somalia, even though the document has been translated into the national language, and trainings and workshops for NGOs and local authority officials have been conducted, the Principles have not had any impact given the prevailing security situation and lack of institutions of governance that would be capable of apprehending violators of the Principles. Somalia’s population continues to be subjected to human rights abuses and violations by all parties to the conflict, including killings, rape, extra-judicial executions, arbitrary detentions, recruitment of children into armed conflict and harassment, kidnapping and killings of humanitarian workers and human rights activists. The much-needed assistance and protection of internally displaced people is being heavily affected by the lack of humanitarian access and inability to ensure protection due to the highly insecure and unpredictable political environment. Recommendations Kenya •• Embed the Great Lakes Pact, especially its Protocols on IDPs into Kenyan law. •• Establish a tribunal to try perpetrators and inciters of violence so as to end the climate of impunity, which has persisted for so long and contributed to displacement. •• Deal with the root causes of violence, especially equity in the distribution of land and other economic and political resources. •• Invest in genuine reconciliation between communities. Somalia •• Support the new government of Sheikh Shariff and insist that an all inclusive government, accountable to Somali people and respecting international boundaries be formed. •• Engage all parties to the conflict in an inclusive process of political dialogue enhancing the possibilities of greater humanitarian access and better protection. •• Establish an independent commission of inquiry to investigate crimes against humanity. Deploy human rights monitors to systematically document abuses/violations being committed to end the culture of impunity. In consultation with donors and the humanitarian community and IDPs, set clear strategy for the return, resettlement or reintegration of internally displaced people. Responsibilities of states and armed group Another point of much debate, during the drafting process, was provisions on the responsibility of states and armed groups. Many delegates of African Union member states, as expected, seem to support that on the one hand responsibility be imposed on ‘armed groups’ but on the other do not want the convention to implicitly grant recognition to them. This is very difficult to legally conceptualize as responsibility can not be imposed on groups not recognized by the law of their respective countries. Many member states expressed their concern, and some argued vehemently, that a mere mentioning of armed groups and their responsibility in the draft AU IDPs Convention entails the recognition of armed groups by the state parties. Principle 2 of the Guiding Principles on Internal Displacement stipulates that: These Principles shall be observed by all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction. The observance of these Principles shall not affect the legal status of any authorities, groups or persons involved (United Nations, 1998). Rebel groups and liberation movements clearly fall under such category of ‘armed group’. But why are only armed groups responsible for forced migration (IDPs)' The term ‘armed groups’ does not necessary include opposition groups, rioters such as town gangsters responsible for the attacks on migrants in South Africa or political parties and self-styled groups in Kenya who caused the displacement of a large part of the population in the post-election violence,. National or transnational companies could also be responsible for forced migration. However, such companies do not fall under the term ‘armed group’. Hence, to avoid this problem, a suggestion was made to change the term ‘armed groups’ to ‘non-state actors’. The term ‘non-state actors’ are not only all inclusive but could also avoid the disagreement and concerns expressed by AU member states regarding recognition of ‘armed groups’. This was another area of serious disagreement and the suggestion was not taken and no change was made in the draft. References Deng, Francis M. 1995. “Internally Displaced Persons.” Report of the Representative of the Secretary-General, Mr. Francis M. Deng, Submitted Pursuant to Commission on Human Rights Resolution 1993/95. 51st Session of the Commission on Human Rights. 30 January. Human Rights Watch. 1993. “Divide and Rule: State Sponsored Ethnic Conflict in Kenya.” New York: HRW. November. Integrated Regional Information Networks. 2008.“KENYA: The Rift Valley’s deadly land rows.” 18 January. Klopp, J. and Nuur M. Sheekh. 2008. “Can the Guiding Principles make a difference in Kenya'” Forced Migration Review (GP10). December, p. 19. Osman, A and I. Souare, eds. 2007. Somalia at the Crossroads: Challenges and Perspectives on a Failed State. London. Adonis and Abbey. Weis, Thomas G. and David A. Korn. 2006. Internal Displacement: Conceptualisation and its Consequences. Oxford: Routledge. ----------------------- [1] Burundi, Central African Republic, Republic of Congo, Democratic Republic of the Congo, Kenya, Rwanda, Tanzania, and Uganda are States parties to the Declaration and its Protocols. Angola, Sudan and Zambia have signed but not yet ratified the Declaration and its Protocols. [2] See: . [3] For a more in-depth study, please refer to existing literature that highlights the complex ethno-political dynamics in Kenya. As for Somalia, there also exists a significant body of literature on ethno-political and regional and international dynamics that have undermined the fabric of the State. (See Osman and Souare, 2007) [4] CIPEV is one of the Commissions established by the Kofi Annan-led National Dialogue and Reconciliation that negotiated an end to political violence after the December 2007 general election. See . [5] The magnitude of the post-election violence and its massive humanitarian consequences immediately attracted international attention, especially from Britain, the European Union (EU), the United States, and the African Union (AU). The mediation process was immediately set in motion and by 22 January 2008, a “Panel of Eminent African Personalities” led by former UN Secretary-General Kofi Annan, mandated by the AU and supported by the EU and the US, had arranged a meeting between the candidates Kibaki and Odinga. [6] The UN estimate that some 3.2 million people; almost 43 percent of Somalis are in need of humanitarian assistance.