Blog post by Christopher Belden*
With the growing anti-LGBTQIA+ political climate worldwide, it comes as no shock that only 37 countries grant asylum for a well-founded fear of persecution based on one’s sexual orientation or gender identity. One of these countries is Kenya located in East Africa. Kenya is home to the Kakuma refugee camp which opened in 1992 in response to the displacement crises during the Second Sudanese Civil War (1983-2005) and at the close of the Ethiopian Civil War (1974-1991). The camp in recent years became a gathering place for LGBTQIA+ asylum seekers and refugees from East Africa as a result of the increase in anti-LGBTQIA+ legislation— such as “The Anti-Homosexuality Act, 2023” in Uganda. While the Kakuma refugee camp provides a place for LGBTQIA+ asylees and refugees to live, it is far from a sanctuary. In fact, a 2021 report conducted by the Rainbow Railroad and ORAM concluded nearly 90% of LGBTQIA+ asylum seekers in Kakuma have been verbally assaulted while 80% experienced physical violence. The persistent violence endured by LGBTQIA+ asylees and refugees in Kakuma demonstrates the failure of Kenya’s Police Service to enforce Article 27 of Kenya’s constitution and the Yogyakarta Principles; therefore, denying the LGBTQIA+ community in Kakuma their dignity and security. This article argues that community-controlled policing must be implemented in order to restore the LGBTQIA+ community’s agency over their own right to security in the Kakuma refugee camp.
The Kenyan Ministry of Interior began to control the Kakuma refugee camp in 2016. More recently, the 2021 Refugee Act placed the management of refugee operations and security completely under the Kenyan government. This is problematic since the Kenyan government has doubled down on its persecution of the LGBTQIA+ community with the Kenyan High Court unanimously upholding sections 162 and 165 of the Penal Code continuing the criminalization of same-sex sexual acts. Furthermore, the Kenya Police Service has rendered the LGBTQIA+ community to a secondary status blatantly ignoring the violence committed against them. As one refugee reported, “We are constantly attacked, and if we report to the police or UNHCR officials, we are ignored. Some lesbians have been raped, but when they reported it, the police told them to go and look for the perpetrators themselves.” A transwoman in Kakuma further elaborated her lack of confidence in the Kenya Police Service recalling, “They [her neighbors] threatened to kill me…I have been reporting all these incidents to the police station all the time, and there is no need to go to the police station again. Nothing will happen.” The police’s inaction made it permissible to commit violence and sexual assault against members of the LGBTQIA+ community in Kakuma. As exhibited in the words of LGBTQIA+ Kakuma refugees, the police’s inability to act is a result of discrimination on the basis of sexual orientation and gender identity. The police did not get involved or provide protection because they viewed the LGBTQIA+ community as bringing this violence upon themselves by deviating from gender norms.
The Kenya Police Service’s outright failure to protect the LGBTQIA+ community in the Kakuma refugee camp is a direct violation of the Constitution of Kenya (2010) and the Yogyakarta Principles (2006)— which Kenya is a signatory to. Article 27 in the Constitution of Kenya enshrines freedom from discrimination stating, “The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, dress, language, or birth.” While it is clear sexuality is not listed, the list is not exhaustive. It clearly prohibits discrimination “directly or indirectly against any person on any ground.” Therefore, the LGBTQIA+ refugees and asylees are entitled to protection by the Kenya Police Service.
While the Yogyakarta Principles are technically not legally binding, the Supreme Court of Kenya previously acknowledged “these principles have inspired several judicial decisions across the world and shaped policy recommendations in the field.” Therefore, the Supreme Court of Kenya agrees that the Yogyakarta Principles still hold relevancy in respect to international human rights law and that it can legitimately be cited as grounds for anti-discrimination programs. The court’s recognition of this is crucial to note because Principle Five states, “Everyone, regardless of sexual orientation or gender identity, has the right to security of the person and to the protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual or group.” Coupled with Article 27 of the constitution, the Kenya Police Service is obligated to investigate all violence against the LGBTQIA+ community and cannot ignore said claims. Therefore, the Kenya Police Service’s own security operations in the Kakuma refugee camp are not in compliance with their own constitution or international guidance.
The Kenya Police Service needs to move beyond their “community policing” model and implement community-controlled policing. Community policing is a police-civilian collaboration in which members of the community work in auxiliary forces alongside the police to build trust within local law enforcement. However, this model is extremely vulnerable and only can function when there is trust between the police and the local community. This is problematic as the state still controls the enforcement mechanisms of the police force within “community policing.” Therefore, if the trust between the two parties breaks down, the power is reverted back to the state. Community-controlled policing, on the other hand, severs the state’s control over the police. Therefore, the “people will have a direct say in who has the right to carry a gun, detain, arrest, and use force in their community.” Community-controlled policing establishes policing districts in which each district votes to determine if they want to keep the existing police regime or replace it with Civilian Police Control Boards (CPCBs). CPCB members are randomly selected and are residents of the community the board represents. The members are tasked with setting the priorities and developing the enforcement mechanisms to police the district.
Community-controlled policing is an innovative approach to ending discrimination in the Kakuma refugee camp’s policing system. Since the camp is already divided into four districts, each district should hold a democratic vote, organized by UNHCR, to determine whether they want to continue with the current policing structure or adopt a community-controlled police system. Allowing for the opportunity to adopt a community-controlled police system would provide LGBTQIA+ community members the ability to participate in the construction of a policing system that is more responsive to their security concerns. Given that CPCB members are selected randomly, LGBTQIA+ refugees and asylees in the districts have the same likelihood of being chosen as heterosexual refugees.
While one may inquire whether heterosexual refugees would support such a measure, it is important to remember that the mechanisms of law enforcement are still in control of the state under the current “community policing” model. This is problematic given that the refugees in the Kakuma refugee camp at large view the Kenya Police Service as a source of corruption and insecurity. Furthermore, those a part of the refugee auxiliary forces are often stigmatized as spies or collaborators because the community policing model fails to put the community in charge of their own law enforcement. With that said, community-controlled policing provides the opportunity for the refugees to construct a law enforcement system with their interest and security in mind as compared to the Kenyan government’s. Community-controlled policing is essential to the security of LGBTQIA+ refugees in Kakuma because it opens the door for them to take an active role to start to dismantle the security disparities they endure.
Community-controlled policing is not going to fix all the injustices LGBTQIA+ refugees face in Kakuma; however, having LGBTQIA+ members in law enforcement will open the door to propose and enforce future reforms. In other words, if LGBTQIA+ refugees wanted to advocate to end discrimination in the healthcare system in Kakuma, they would need law enforcement willing to enforce the prospective reforms. Therefore, only through community-controlled policing can LGBTQIA+ refugees in Kakuma hope to overcome the discrimination in their daily lives.
*Christopher Belden is a graduate student at American University’s School of International Service pursuing a Master of Arts in Ethics, Peace, and Human Rights. He holds a Bachelor of Arts in History, Economics, and Peace Studies from Manhattan College.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.