Securitisation, non-refoulement and the rule of law in Kenya: the case of Somali refugees

Abstract

ABSTRACTThis article adopts the securitisation theory to examine the relationship among securitisation, non-refoulement, a peremptory norm, and the rule of law in Kenya. The arguments raised are that Somali refugees and refugee camps predominantly occupied by Somalis are falsely, in blanket fashion, socially constructed as abetting terrorism hence existential threats to national security so that the state can prioritise the implementation of refoulement, a norm-violating counterterrorism measure. The rights of Somali refugees and rule of law have been violated in the context of legality and legal certainty, discretionary powers, equality before the law and non-discrimination. It is only with regard to access to justice that the rights of Somali refugees have been protected under both domestic and international law. Kenya has, therefore, derogated from the doctrine of non-refoulement hence violating the rule of law domestically and internationally. The conclusion offers ways of mitigating the adverse effects of securitisation on non-refoulement and the rule of law.