Irregular migrants in Kenya are detained in immigration holding facilities, but also in prisons or in general police custody. The conditions in Kenya’s prisons are worrying, as migrants may face assault and sexual abuse, with limited legal assistance. The National Council for the Administration of Justice announced on 2 April the release of 4,000 prisoners […]
Last updated: March 2009
Kenya Immigration Detention Profile
Kenya is a major destination country for migrants and refugees in the Horn of Africa. While many refugees settle in urban areas, the country has large refugee camps in Dadaab and Kakuma.[1] Kenya is also a major source and transit county for migrants and asylum seekers intending to travel to South Africa. According to one “conservative” estimate, some 1,000 people are placed in immigration detention annually.[2]
The 2011 Kenya Citizenship and Immigration Act regulates the country’s immigration policy. Under the Act, migrants who unlawfully enter or remain in Kenya have committed a criminal offence, punishable by a fine of up to USD 5,500 and/or imprisonment of up to three years. Newly arrived asylum-seekers are excluded from this provision in the Act.[3]
The Act also provides that irregular migrants can be detained in immigration holding facilities, prisons, or in general police custody depending on where they are apprehended.[4] One issue with Kenya’s immigration-related detention practices is that migrants are often detained multiple times (“re-detention”), in part because of the non-existence of a deportation or repatriation system. Migrants detained in Kenya’s prisons face poor conditions, including assault, sexual abuse, limited legal assistance, and a poor diet. However, the government does permit local human rights groups and consular representatives to visit the prisons.[5]
In recent years, the Kenyan government has conducted a series of “anti-terror” operations that have resulted in the arrest and detention of large numbers of foreigners. These operations are partially motivated by an increase in attacks occurring within the country. During an operation in April 2014, more than 4,000 foreigners were arrested and detained, the majority of whom were refugees and asylum seekers. Amnesty International (AI) reported that during the operation, payment was demanded from detainees in order to be released. Somali refugees told AI that they faced “beatings and unlawful detention at the hands of security forces conducting house-to-house searches in predominantly Somali neighbourhoods.” Some of the detainees were taken to the Kasarani football stadium, where they were held in a form of ad hoc detention as their documents were checked.[6]
Increasing numbers of cross-border attacks by the Somalia-based Al Shabaab have spurred a number of additional new security measures in Kenya that make migrant and refugees vulnerable to arrest and detention. For instance, the government plans to construct a new road and additional border crossings and barriers along its border with Somalia.[7]
Migrant children have also been detained during security raids. The Integrated Regional Information Network estimates that during the April 2014 operation about 300 children, including babies, were separated from their parents, who had also been arrested during security operations.[8] Many children were held in overcrowded cells with men and women.[9]
As of March 2015, Kenya hosted more than 580,000 registered refugees and asylum seekers, mainly from Somalia, South Sudan, and Ethiopia.[10] Somalis account for more than 70 percent of refugee and asylum seekers in Kenya, and the community has faced discrimination, including government calls for them to return to Somalia despite the on-going conflict and threat of persecution in that country.[11]
Under Kenya’s Refugee Act 2006, asylum-seekers have 30 days to register after crossing into Kenya. A lack of documentation and difficulty in determining the date of crossing can sometimes lead to the arrest of asylum seekers. In addition, the Refugee Act provides refugees with a right to a fair hearing. However, due to language barriers and a lack of knowledge on the part of law enforcement officers, the rights provided for are largely ignored.[12] There have also been numerous reports of police and other officials confiscating refugee documents, leaving refugees vulnerable to detention.[13]
The Kenyan government has issued multiple directives requiring refugees to leave urban areas and move to camps. Since the issuance of a directive in December 2012, harassment of refugees by law enforcement officers in urban areas has reportedly increased dramatically. Such harassment includes arbitrary arrests and illegal detention.[14] According to the Refugee Consortium of Kenya, harassment of refugees in the form of abuse and violence has been well documented.[15]
[1] UN High Commissioner for Refugees, 2015 UNHCR Country Operations Profile—Kenya, http://www.unhcr.org/pages/49e483a16.html.
[2] Regional Mixed Migration Secretariat, Behind Bars: The Detention of Migrants in and from the East & Horn of Africa, 2015, http://www.regionalmms.org/.
[3] Kenya Citizenship and Immigration Act, http://www.nairobi.diplo.de/contentblob/3356358/Daten/1788002/d_KenyanCitizenship_No12_of_2011.pdf.
[4] Kenya Citizenship and Immigration Act, http://www.nairobi.diplo.de/contentblob/3356358/Daten/1788002/d_KenyanCitizenship_No12_of_2011.pdf.
[5] Regional Mixed Migration Secretariat, Behind Bars: The Detention of Migrants in and from the East & Horn of Africa, 2015, http://www.regionalmms.org/.
[6] Amnesty International, “Kenya: Somalis trapped in ‘catch-22’ amid crackdown on refugees,” 11 April 2014, https://www.amnesty.org/en/latest/news/2014/04/kenya-somalis-placed-catch-amid-crackdown-refugees/.
[7] Regional Mixed Migration Secretariat, “Regional Mixed Migration Summary for March 2015,” 2015, http://reliefweb.int/sites/reliefweb.int/files/resources/RMMS_Mixed_Migration_Summary_March_2015.pdf.
[8] Integrated Regional Information Network, “Kenyan Police Operation Strands 300 Children,” 20 June 2014, http://www.irinnews.org/report/100246/kenyan-police-operation-strands-300-children.
[9] Regional Mixed Migration Secretariat, Behind Bars: The Detention of Migrants in and from the East & Horn of Africa, 2015, http://www.regionalmms.org/.
[10] Regional Mixed Migration Secretariat, “Regional Mixed Migration Summary for March 2015,” 2015, http://reliefweb.int/sites/reliefweb.int/files/resources/RMMS_Mixed_Migration_Summary_March_2015.pdf.
[11] Human Rights Watch, “Somalia Unsafe for Refugees to Return,” 30 March 2012, https://www.hrw.org/news/2012/03/30/kenya-somalia-unsafe-refugees-return.
[12] Lucy Kiama and Dennis Likule, “Detention in Kenya: Risks for Refugees and Asylum Seekers,” Forced Migration Review, September 2013, http://www.fmreview.org/detention/kiama-likule.
[13] Amnesty International, “Kenya: Somalis trapped in ‘catch-22’ amid crackdown on refugees,” 11 April 2014, https://www.amnesty.org/en/latest/news/2014/04/kenya-somalis-placed-catch-amid-crackdown-refugees/.
[14] Lucy Kiama and Dennis Likule, “Detention in Kenya: Risks for Refugees and Asylum Seekers,” Forced Migration Review, September 2013, http://www.fmreview.org/detention/kiama-likule.
[15] Regional Mixed Migration Secretariat, Behind Bars: The Detention of Migrants in and from the East & Horn of Africa, 2015, http://www.regionalmms.org/.
DETENTION CAPACITY
ALTERNATIVES TO DETENTION
ADDITIONAL ENFORCEMENT DATA
PRISON DATA
POPULATION DATA
SOCIO-ECONOMIC DATA & POLLS
LEGAL & REGULATORY FRAMEWORK
Does the Country Have Specific Laws that Provide for Migration-Related Detention?
Detention-Related Legislation
GROUNDS FOR DETENTION
Criminal Penalties for Immigration-Related Violations
Grounds for Criminal Immigration-Related Incarceration / Maximum Length of Incarceration
LENGTH OF DETENTION
DETENTION INSTITUTIONS
PROCEDURAL STANDARDS & SAFEGUARDS
COSTS & OUTSOURCING
COVID-19 DATA
TRANSPARENCY
MONITORING
NATIONAL HUMAN RIGHTS MONITORING BODIES
NATIONAL PREVENTIVE MECHANISMS (OPTIONAL PROTOCOL TO UN CONVENTION AGAINST TORTURE)
NON-GOVERNMENTAL ORGANISATIONS (NGOS)
GOVERNMENTAL MONITORING BODIES
INTERNATIONAL DETENTION MONITORING
INTERNATIONAL TREATIES & TREATY BODIES
International Treaties Ratified
Ratification Year
Observation Date
CTOCTP, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
2005
2005
CTOCSP, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime
2005
2005
CAT, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1997
1997
Ratio of relevant international treaties ratified
Ratio: 12/19
Relevant Recommendations or Observations Issued by Treaty Bodies
Recommendation Year
Observation Date
Committee on the Elimination of Racial Discrimination
21.The Committee acknowledges the State party’s long-standing tradition of hosting refugees, and the challenges it faces. However, it expresses concern about: ... (a) Clause 19 (2) of the Refugee Act of 2021, which allows for broad exceptions to the principle of non-refoulement on the basis of public morality, and the inclusion of prisons, police stations and remand homes in the definition of transit centres; ... 22. The Committee recommends that the State party: (a) Strictly uphold the principle of non-refoulement in both law and practice; (b) Amend the Refugees Act, including section 19 (2) and provisions that include prisons, police stations and remand homes in the definition of transit centres to ensure its full compatibility with the Convention, (c) Ensure the provision of adequate, fresh, clean drinking water, food, and health care and services in transit centres; (d) Guarantee that all applicants for international protection at the border and in reception centres are promptly registered and referred to the appropriate asylum authorities and refugee status determination procedures, ... 29.The Committee is concerned about: ... (c) Reports of excessive use of force, arbitrary detention, torture, cruel, inhuman or degrading treatment, extrajudicial executions, and failure to observe due process, against ethnic and ethno-religious groups, as well as against non-citizens, by State law enforcement agents." (Committee on the Elimination of Racial Discrimination, "Concluding observations on the combined eighth and ninth periodic reports of Kenya.
2024
2024
2024
Committee against Torture
25. Other issues of concern include the inclusion of prisons, police stations and remand homes in the definition of refugee transit centres; the detention of non-citizens solely for irregular entry into the country; the intention of the State party to close both the Dadaab and Kakuma refugee camps by June 2022, citing alleged security risks, which may result in mass expulsions, involuntary repatriations and the refoulement of a very large number of Somali and South Sudanese refugees, which may put them at risk of being detained, tortured or killed upon their return to their country of origin (arts. 3 and 11). 26. The State party should: (a) Strictly uphold the principle of non-refoulement in both law and practice; (b) Amend the Refugees Act, including section 19 (2) and provisions that include prisons, police stations and remand homes in the definition of transit centres, to ensure its full compatibility with article 3 of the Convention; (c) Put an end to the practice of detaining non-citizens solely for irregular entry into the country; (d) Consider revising its decision to close the Dadaab and Kakuma refugee camps to avoid the mass deportation and involuntary repatriation of Somali and South Sudanese refugees, who may face arbitrary detention, torture or other forms of ill- treatment upon their return to their country of origin.
2022
2022
2022
Committee on the Rights of the Child
§ 28. With reference to the Committee’s general comment No. 12 (2009) on the right of the child to be heard, the Committee recommends that the State party:
(a) Make the Children’s Assembly at national, county and sub-county levels open and accessible to all children in the State party without discrimination, including refugee children and children with disabilities;
(b) Actively involve children at national and county levels, including through the Children’s Assemblies, in the development of law, policy and budget relevant to children’s issues and in the monitoring of their implementation...
60. With reference to the Committee’s general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, the Committee urges the State party to:
(a) Ensure all security operations and policies relevant to asylum seekers and refugees comply fully with international human rights and refugee law which the State party has ratified, in particular the rights of the child;
(b) Ensure that returns of refugees, including refugee children, will not occur unless their returns are voluntary and carried out in safety and dignity;
(c) Revise the policy on long-term encampment of refugees and allow greater opportunities for refugees to reside outside designated areas;
(d) Uphold the rights of the child to family unification and to have his or her best interests taken as a primary consideration in all policies and procedures on refugees and asylum seekers...
62. The Committee recommends that the State party issue individual identity documentation to all refugee and asylum-seeking children regardless of their age, residence or status of family unification in order to guarantee their refugee or asylum-seeking status and their access to essential services"
2016
2016
Human Rights Committee
§ 37. The State party should: (a) Strictly uphold the principle of non-refoulment in both law and practice; (b) Amend the Refugee Bill of 2019, including provisions that include prisons, police stations and remand homes in the definition of transit centres, and clauses 19 (2) and 23 (5), to ensure its full compatibility with the Covenant; (c) Pass an amended version of the Refugee Bill into law and effectively implement its provisions without delay; (d) Stop the practice of detaining non-citizens solely for irregular entry into the country; (e) Take concrete steps to reduce statelessness, in particular to prevent statelessness of children.
2021
2021
Human Rights Committee
37. The State party should:
[...]
(b) Amend the Refugee Bill of 2019, including provisions that include prisons, police stations and remand homes in the definition of transit centres, and clauses 19 (2) and 23 (5), to ensure its full compatibility with the Covenant;
(c) Pass an amended version of the Refugee Bill into law and effectively implement its provisions without delay;
(d) Stop the practice of detaining non-citizens solely for irregular entry into the country;
[...]
2021
2021
> UN Special Procedures
> UN Universal Periodic Review
REGIONAL HUMAN RIGHTS MECHANISMS
Regional Legal Instruments
Year of Ratification (Treaty) / Transposed (Directive) / Adoption (Regulation)
Observation Date
HEALTH CARE PROVISION
COVID-19
Country Updates
Irregular migrants in Kenya are detained in immigration holding facilities, but also in prisons or in general police custody. The conditions in Kenya’s prisons are worrying, as migrants may face assault and sexual abuse, with limited legal assistance. The National Council for the Administration of Justice announced on 2 April the release of 4,000 prisoners convicted of minor offenses.
Human rights groups have expressed alarm over the government’s response to the Covid-19 crisis, pointing to a surge in police violence and exceedingly strict containment measures. On 29 April, the Kenya National Commission on Human Rights accused Kenyan authorities of using quarantine as punishment. The commission said that ‘’the rounding up of citizens by security agents for breaking the curfew rules is likely to exacerbate the pandemic.’’
Since 27 March 2020, a countrywide curfew was put in place to combat Covid-19 outbreaks. Individuals are not allowed to leave their homes from 7pm to 5am and any transgression of this measure may result in imprisonment. It is also mandatory to wear a face mask in public and the non-respect of this rule may lead to a fine up to 20,000 KES and imprisonment for up to six months. In Kakuma refugee camp, which hosts more than 194,000 refugees and asylum seekers, the curfew also applies. Kenyan authorities announced on 26 April a 21 days extension of the curfew.
The Kenyan Red Cross and the International Committee of the Red Cross (ICRC) distributed soaps along with devices to wash hands in prisons. Along with these sanitary measures, visits in prisons are suspended until 11 May. The Nairobi prison has been under full lockdown since 28 March, a decision which was met with protests from prison staff.
Government Agencies
Ministry of State for Immigration and Registration of Persons, http://www.immigration.go.ke
Kenya National Commission for Human Rights, http://www.knchr.org
International Organisations
International Labour Organization: Dar es Salaam Office, http://www.ilo.org/public/english/region/afpro/daressalaam/
International Organization for Migration Kenya Country Information, http://www.iom.int/countries/kenya
International Organization for Migration Kenya Office, http://kenya.iom.int
UNHCR Kenya, http://www.unhcr.org/ke/
UNHCR Kenya Country Information, http://reporting.unhcr.org/node/2537#_ga=1.198090669.32124244.1433849501
NGO & Research Institutions
Jesuit Refugee Service-East Africa, http://www.jrsea.org/
Refugee Consortium of Kenya, http://www.rckkenya.org
Media
The Daily Nation, http://www.nation.co.ke
The East African, http://www.theeastafrican.co.ke
Kenya Times, http://www.kenyatimesonline.com
The Standard, http://www.eastandard.net
Sub-Saharan Informer, http://www.ssinformer.com/
