Legal analysis

Kenya: Internally Displaced Persons Bill

In July 2012, ARTICLE 19 analysed the Draft Internally Displaced Persons Bill, 2012 (“the Draft Bill”) of Kenya, which is currently under consideration by the Parliamentary Select Committee on Labour and Social Welfare. This analysis focuses on the extent to which the Draft Bill complies with international standards on the right of access to information. ARTICLE 19 welcomes the initiative to institutionalise protections for internally displaced persons in Kenya, including measures to increase information flows to and from IDPs. While these provisions are robust, there is scope to improve the Draft Bill further to better protect the right of access to information in the process of addressing internal displacement.

ARTICLE 19 believes that empowering internally displaced persons (IDPs) to claim their information rights is essential for enabling them to assert their other rights, in particular their economic and social rights. The underlying concept of this analysis is the assertion that policies and regulations related to protecting IDPs in Kenya can be greatly enhanced by maximising the public availability of information. Access to information ensures public participation in decision-making and facilitates full public debate on public policy. A lack of respect for these rights has been identified as a weakness in Kenya’s response to internal displacement to date. There has been insufficient information about IDPs to inform policy; a lack of transparency around policy making related to IDPs and a failure to consult with IDPs on issues affecting them, and opacity has led to numerous instances of corruption.

The Draft Law is a positive step towards addressing these concerns. In particular, we welcome the initiative by the Kenyan government to domesticate the UN Guiding Principles and the Great Lake Protocols through legislation that largely emphasises the efficacy of a rights-based response to the problem of internal displacement. The establishment of the National Consultative Coordination Committee on Internal Displacement (“the NCCC”) is positive, since it has the mandate to compile a database on IDPs that will inform the formulation and effective implementation of projects.

There are strong obligations for the State to seek the informed consent from individuals likely to be displaced by development projects, with a positive emphasis on access to information and participation in decision-making. This is also reflected in provisions related to durable solutions – ensuring that the informed consent is sought of individuals in decisions regarding their return, resettlement or integration. The analysis also welcomes the obligation to initiate a campaign to raise awareness, sensitization, training and education on the causes, impact and consequences of internal displacement. This campaign will, if adequately funded and properly implemented, increase dialogue on the realities of displacement across the country and forestall future instances of displacement. It also prepares individuals for the worst case scenario – so that they know their legal rights should they find themselves forced to flee their homes.

ARTICLE 19 recommends a number of reforms to enhance the effectiveness of the Kenyan government’s response to internal displacement. At the international level, this includes the ratification of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (“the Kampala Convention”), which Kenya was instrumental in drafting.

ARTICLE 19 expresses concern that there is an absence of provisions in the Draft Bill to address the information needs of existing IDPs. At present, references to the right to information and participation focus on prevention and durable solutions, leaving a significant gap in relation to protection and assistance of IDPs during their displacement. The analysis recommends the addition of a stand-alone guarantee for the right to access information and public participation – making it clear that respect for this right is crucial at all stages of displacement. There should be additional obligations to provide information to IDPs on the provision and distribution of humanitarian assistance during displacement, and for IDPs to be consulted in the process of planning such assistance.

The analysis also recommends that further measures be taken to maximise the utility of the NCCC as an institution and to ensure its transparency. In addition to collecting information about IDPs for its database, the NCCC should also produce and disclose accessible, credible and disaggregated data to the public about the IDP situation. Such information would promote dialogue on IDP issues, it would inform public debate and ensure that public authorities be held to account where they are underperforming. In the same regard, we advise that the NCCC should be required to publicly disclose and disseminate its yearly reports, rather than simply submitting them to Parliament.

ARTICLE 19 urges the Parliamentary Select Committee to review the Draft Bill in light of the recommendations submitted in this analysis. The Committee must impress upon Parliament that the right of access to information and participation in decision-making for IDPs is crucial for moving towards a durable solution to displacement – and for pre-empting further instability and violence in Kenya.

Recommendations:

• Kenya must enact a legislative framework for the ratification of treaties in order to enable the ratification of the Kampala Convention;

• The right of access to information should be guaranteed in a stand-alone provision within the Draft Bill;

• Discussions on passing the Freedom of Information Bill to implement Article 35 of the Constitution should be prioritised;

• An awareness-raising, sensitisation, training and education programme should be tailored to the needs of existing IDPs and target IDPs remaining in camps and other settlements;

• The Draft Bill should make clear that the government is obliged to provide full information to IDPs on issues pertinent to them during their displacement, and must seek their participation in decisions on the provision of protection and assistance during this time;

• Information collected about IDPs must be held in a manner that complies with international standards on data protection. The Data Protection Bill (currently under stakeholder review) must be reformed to comply with international standards and its adoption prioritised;

• The NCCC must publicly disclose information on its activities, including disaggregated data on the situation of IDPs in Kenya and ensure that its annual reports are disseminated widely;

• The right of access to information and participation in decision-making should be expressed as a necessary condition of “informed consent” to durable solutions.

 

For ARTICLE 19’s statement summarising the recommendations of the legal analysis, click here

 

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