Behind the ScenesJanuary 2013
Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya
A study carried out by the Refugee Consortium of Kenya in partnership with the Danish Refugee Council - Great Lakes Programme
Behind the Scenes
Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya
January 2013
Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya I Acknowledgements
This documentation study was commissioned by the Refugee Consortium of Kenya (RCK) and the Danish Refugee Council’s Great Lakes Civil Society Project. The study was undertaken and compiled in two phases. The first phase of collecting primary and secondary data, compiling the findings and writing the report was done by Davis M. Malombe. The second phase of writing and finalising the report was done by Joseph Omolo in consultation with the Study Advisory Group (SAG).
The process of conducting the study and the compilation of this final report immensely benefited from the guidance, review, support and supervision of the SAG. The SAG was made up of staff from the Refugee Consortium of Kenya (Lucy Kiama – Executive Director, Leila Muriithia – Senior Programme Officer, Rufus Karanja – Programme Officer, Ad-vocacy and Riva Jalipa - Associate Programme Officer, Ad- vocacy) and the Danish Refugee Council (Alexandra Bilak – Programme Manager, Great Lakes Civil Society Project and Pauline Wesolek – Programme Officer, Great Lakes Civil Society Project). The Study Advisory Group also played a key role in providing technical, logistical and administrative support for the study.
RCK and DRC extend their gratitude to all the partners and members of the Protection Working Group on Internal Displacement, including those at the field level who were interviewed for the study. RCK thanks all the internally displaced persons who were interviewed for this study in Nakuru, Eldoret and Kitale. Their practical experience and knowledge significantly supported the findings of this study.
Finally, RCK and DRC thank the Kenya Government officials, in particular Michael Nyamai (MoSSP), Joseph Gitonga (MoJNCCA), Members of Parliament including Hon. Ekwe Ethuro as the Chair of the PSC, Hon. Sophia Abdi as the Chair of the LSWC and other international partners who agreed to be inter- viewed for this study and who have been closely involved in the policy development process.
II Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya III List of Abbreviations
Acquired Immunodeficiency Syndrome AIDS Advocacy Sub-Working Group ASWG African Union AU Children’s Legal Action Network CLAN Civil Society Organisations CSOs Great Lakes Civil Society Project GCP Human Immunodeficiency Virus HIV International Conference on the Great Lakes Region ICGLR International Displacement Monitoring Centre IDMC Internal Displacement Policy and Advocacy Centre IDPAC Internally Displaced Persons IDP International Refugee Rights Initiative IRRI Kenya Human Rights Commission KHRC Kenya National Commission for Human Rights KNCHR Kenyans for Truth with Peace and Justice KTPJ Lamu Port-Southern Sudan-Ethiopia Transport LAPSSET Legal and Advocacy Sub-working Group LASWG Land Sector Non-State Actors LSNA Labour and Social Welfare Committee LSWC Ministry of Justice National Cohesion and Constitutional Affairs MoJNCCA Ministry of State for Special Programmes MoSSP North Frontier Districts NFDs Non-Governmental Organisations NGOs Norwegian Refugee Council NRC Office of the Higher Commissioner for Human Rights OHCHR Protection Cluster PC Post-Election Violence PEV Parliamentary Select Committee on the Resettlement of IDPs in Kenya PSC Protection Working Group on Internal Displacement PWGID Refugee Consortium of Kenya RCK The Office of the Representative of the Secretary-General on the Human Rights of IDPs RSG Special Rapporteur on the Human Rights of IDPs SR/IDPs Truth, Justice and Reconciliation Commission TJRC United Nations UN United Nations High Commissioner for Refugees UNHCR United Nations Children’s Fund UNICEF United Nations Office Coordinating Humanitarian Affairs UNOCHA
IV Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya V Foreword
Internal displacement in Kenya has been described as a historical problem which has been exacerbated by the lack of a comprehensive legal and policy framework to, at the least, recognise who an IDP is and where responsibilities lie. As a result, the Kenyan Government has in most instances responded to the problem in an ad hoc and needs-based manner as opposed to a rights-based one that is premised on inter- nationally accepted human rights standards.
Following the devastating impact of the 2007/08 post-election violence in which over 1,300 persons were killed and over 600,000 others internally displaced, the Kenya Government, through the Ministry of State for Special Programmes (MoSSP) and in collaboration with humanitarian and non-state actors, embarked on the development of an IDP Policy. This policy was intended to help the Government better prevent instances of internal displacement, to provide enhanced protection and assistance to internally displaced persons (IDPs) and to promote the achievement of durable solutions for IDPs. This initiative later transformed into the development of legislation on internal displacement (IDP Bill, 2012).
The development and lobbying process of these frameworks has been prolonged and demanding on re- sources. The experience, however, has been rewarding in terms of both the near realisation of progressive frameworks but also as a learning process for actors who have been instrumental in these processes.
The Kenyan experience is a commendable one, in that it has benefi tted to a great extent from the immense support and collaboration from the Government. That is not to say that it has not had its fair share of chal- lenges nor that it has not been without good fortunes. The documentation of this process is an important one which could inform future advocacy strategies on policy development and is also a means of refl ec- tion for those who have been involved in the process.
This study by the Refugee Consortium of Kenya and the Danish Refugee Council (Great Lakes Civil So- ciety Project) could not be any more timely, as signatories to the African Union Convention on the Pro- tection and Assistance to Internally Displaced Persons (Kampala Convention) seek to domesticate this Convention.
Dr. Chaloka Beyani UN Special Rapporteur on the Human Rights of IDPs
VI Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya VII
Table of Contents
Acknowledgements III List of Abbreviations V Foreword VII Table of content IX Executive Summary XI
Chapter 1 Introduction 1 1.1. The Kenyan Context 1 1.2. The Political and Technical Processes Towards Drafting the IDP Policy 2 1.3. Purpose and Objectives of the Study 2 1.4. The Partnership between the Refugee Consortium of Kenya and the Danish Refugee Council (Great Lakes Civil Society Project ) 2 1.5.1. Desk Review 3 1.5.2. Key Informant Interviews 3 1.5.3. Internal RCK Reflection 3 1.5.4. Theoretical and Conceptual Framework 4 1.5.5. Shortcomings of the Methodology 4
Chapter 2 Setting the Scene 6 2.1. Causes of Displacement in Kenya 6 2.1.1. Colonial and Post-Colonial Factors 6 2.1.2. Election-related Violence 6 2.1.3. Border and Resource Disputes Including Cattle Rustling and Banditry 7 2.1.4. Natural and Human Made Disasters 7 2.1.5. Development Projects and Displacement 7 2.2. Towards a Policy Framework 7 2.2.1. Development of an Overarching Policy Framework 8 2.2.2. Development of a Legislative Framework 8 2.2.3. Synchronising the Policy and Legislative Processes 8 2.2.4. Taking Stock of the Process 11
Chapter 3 The Role of the PWGID: Added Value of a National Coordination Mechanism 13 3.1. Institutional Responses to the Post-Election Violence in 2007/2008 13 3.2. Collective Responses within the PWGID 13 3.3. Key Achievements of the PWGID 14 3.4. Key Challenges 15
Chapter 4 The Role of Civil Society 17 4.1. Identifying the Problem 17 4.2. Policy Choices 18
VIII Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya IX Executive Summary
4.3. Policy Formulation 18 Kenya is in the final stages of developing a Policy on internal displacement. Its legislature has recently 4.4. Policy Adoption 19 passed a law to provide for the protection and provision of assistance to IDPs based on the provisions of 4.5. Policy Implementation 20 the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons (Great Lakes 4.6. Policy Evaluation 20 IDP Protocol) and the United Nations Guiding Principles on Internal Displacement (Guiding Principles). 4.7. Participatory Nature of the Policy Development Process 20 Almost all countries within the Great Lakes Region1 have a population of internally displaced persons Chapter 5: Navigating through a Tough Political Environment 23 whose displacement has been occasioned by a number of factors such as conflicts, natural and man-made 5.1. Sensitivity of the Topic of Internal Displacement in Kenya 23 disasters and development projects. Despite this, most countries within the region lack a policy frame- 5.1.1. Post-election violence 2007 23 work on internal displacement. At the moment, there is growing momentum to establish a model frame- 5.1.2. Ethnic Dimension 23 work based on the Guiding Principles, the Great Lakes Protocol and African Union Convention for the 5.1.3. State responsibility for IDPs 24 Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 5.2. Institutional context 24 5.2.1. Different Visions: The Executive versus Parliament 24 This report is the result of a project commissioned by the Refugee Consortium of Kenya and the Dan- 5.2.2. Private Member’s Bill 24 ish Refugee Council’s Great Lakes Civil Society Project, whose purpose was to capture and analyse the 5.2.3. Engaging with Actors and Managing Interests 25 advocacy and engagement process that went into the preparation of the IDP Policy and Bill in Kenya. By 5.3. Impact of Changes in the Political Scene since 2007 25 highlighting the challenges and lessons learnt from the process, the outcome of the project should make a 5.3.1. Implementation of the 2010 Constitution 25 useful guide for discussions on advocacy strategies for forced migration policies at the regional and con- 5.3.2. Proceedings at the International Criminal Court 26 tinental level. 5.3.3. Upcoming Elections 26 This report highlights a number of best practices based on the Kenyan experience. These best practices Chapter 6: Lessons Learned and Recommendations 28 should serve as a guide to persons involved in policy development on forced migration within the region. 6.1. Lessons Learned 28 Some of the best practices may also be applicable to policy development work in other sectors locally and 6.1.1. A Critical Mass of Local Actors 28 regionally. The best practices identified from the process revolved around issues like: creation of a criti- 6.1.2. Coordination of Advocacy Work 28 cal mass of actors; establishment of a national coordination mechanism; strategies for resource mobili- 6.1.3. Resource Mobilisation 28 sation; partnership with the government in the policy development process; adaptation of international 6.1.4. Involvement of the Government 28 protection benchmarks to suit local conditions; creation and utilisation of networks; timing of policy de- 6.1.5. Adapting International Standards to Local Conditions 29 velopment processes; participation in the process; identification of institutional weaknesses and building 6.1.6. Creation and Utilisation of Networks and Personal Contacts 29 the capacity of actors to boost their participation in the process; need for flexibility on policy development 6.1.7. Timing 30 options; and use of local and external expertise. Based on these issues, the report offers a number of com- 6.1.8. Inclusion and Participation 30 prehensive recommendations aimed at different actors. 6.1.9. Institutional Weaknesses and Capacity Building for Actors 30 6.1.10. Flexibility, Concessions and Compromises 30 6.1.11. Local and External expertise 30 6.2. Recommendations to Countries Wishing to Engage in the Process of Developing a Policy on Internal Displacement 31
Appendices 33 Bibliography 35 Footnotes 37
X Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya XI Chapter 1: Introduction
1.1. The Kenyan Context Cohesion and Constitutional Affairs (MoJNC- CA), the Kenya National Commission for Human Kenya is in the final stages of developing a Policy Rights (KNCHR), UN agencies, national and in- on internal displacement. Its legislature has re- ternational NGOs and community-based organi- cently passed a law to provide for the protection sations. and provision of assistance to IDPs based on the provisions of the Great Lakes IDP Protocol on the In early 2009, the Protection Cluster was trans- Protection and Assistance to Internally Displaced formed into a national-level Protection Work- Persons and the United Nations Guiding Princi- ing Group on Internal Displacement (PWGID) ples on Internal Displacement. The President as- in order to expand its capacity for advocacy and sented to the Bill on 31st December 2012.2 to cover other interventions on a long term basis. The mandate of the PWGID included: advocacy Advocacy work in Kenya for the establishment of and capacity-building of government institutions a national policy on the protection of IDPs started through training sessions on the Guiding Princi- in April 2007 when Kenyan civil society organisa- ples; advocacy for the implementation of the Great tions (CSOs), United Nations (UN) agencies and Lakes IDP Protocol; participation in efforts to- government ministries working on IDP issues wards the finalisation of the Kampala Convention, established a task force on the protection of IDPs. which existed then in a draft form; and elaboration The mandate of the taskforce included organising of a national policy on internal displacement. a national conference on the protection of IDPs in November 2007, with a view to strengthening mechanisms for immediate responses and advo- 1.2. The Political and cate for durable solutions for all categories of IDPs. Technical Processes Towards Drafting Following the violence that erupted in 2007/ 2008, the IDP Policy the National Disaster Operations Centre3, on be- half of the Government of Kenya, called upon hu- In July 2009, the first stakeholders’ forum was held manitarian agencies to work towards mitigating at which the process of developing a policy on inter- the humanitarian crisis caused by the post-elec- nal displacement for Kenya was initiated. Partici- tion violence. As a result, eleven clusters were es- pants at the forum included senior representatives tablished under the UN system to facilitate rapid from the Ministry of State for Special Programmes mobilisation of donor funding, to provide a mech- (MoSSP), from the National Steering Committee anism for coordinating humanitarian assistance on Peacebuilding and Conflict Management, the and to support government structures and help Provincial Administration and members of the restore their capacities. PWGID. The outcome was a consensus on the need for a national policy to address situations of inter- A national IDP Protection Cluster formed by the nal displacement in Kenya. The PWGID was then United Nations High Commissioner for Refu- given the mandate to devise a strategy for drafting gees (UNHCR) was part of this cluster system the policy in collaboration with MoJNCCA and with representation from more than 30 agencies MoSSP. including the Ministry of Justice, National The process of drafting the policy was taken up
XII Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 1 Chapter 1: Introduction
by the MoSSP and the Legal and Advocacy Sub- into the preparation of the IDP Policy and Bill in initiatives aimed at providing joint solutions to re- 1.5.2. Key Informant Interviews Working Group (LASWG), a theme group under Kenya. By highlighting the challenges and lessons gional displacement problems. the PWGID. Meetings were hosted at the ministry learnt from the process, the outcome of this study The study made use of purposive sampling, inter- on a weekly basis with a technical advisor from should make a useful guide for discussions on ad- The Refugee Consortium of Kenya (RCK) is a viewing various respondents from organisations the office of the Special Rapporteur on the Hu- vocacy strategies on forced migration policy at the national Non-Governmental Organisation that or institutions that have taken an active part in the man Rights of IDPs (SR-IDPs) providing techni- national, regional and continental level. works to promote and protect the rights and digni- policy development process. These respondents cal support to the team. In March 2010, partners ty of refugees and other forced migrants. RCK was included state and non-state actors and represent- reviewed a preliminary draft for the policy during According to the Brookings Institution’s database constituted and registered in 1998 in response to ed international, national and field-based level ac- the second stakeholders’ forum. on national laws and policies on internal displace- the increasingly complex refugee situation in Ken- tors. The interviews were mainly conducted using ment, only four countries in the Great Lakes region ya. RCK is distinct in the role it plays in promoting semi-structured questionnaires as well as infor- From May to December 2010, the LASWG devel- have developed an IDP-specific policy to deal with the welfare and rights of refugees and other forced mal discussions. oped and disseminated a matrix auditing the legal, particular protection needs.5 The Kenyan experi- migrants. It focuses on refugee and IDP issues us- policy and institutional framework in relation to ence could therefore inspire other countries with- ing a human rights and social justice approach as In total, 22 stakeholders were interviewed. 13 were the protection of IDPs. The matrix indicated the in the region and beyond, especially as momentum it advocates for their rights. In partnership with representatives of state institutions comprising weaknesses in the existing framework and justi- builds up for the implementation of the Guiding its networks locally, regionally and internation- of four international (mainly UN Agencies), six fied the need for a concrete legal framework and Principles, the Kampala Convention and the Great ally, RCK has been able to deal with a wide range national (from relevant ministries, Kenya Na- for implementing the draft Policy. In November Lakes IDP Protocol. Beyond its particular context of issues in forced migration. These include legal tional Commission on Human Rights – KNCHR, 2010, the team amended the draft policy to reflect on internal displacement, lessons learnt from the reforms, policy development, civic education, re- and Parliament) and three field-based Protection the provisions of the newly-promulgated Kenyan Kenyan process could also be useful for reflecting search and information dissemination, refugee Working Group members (mainly from the Pro- Constitution so that it correlated with the frame- on policy development work in other sectors. and IDP empowerment and capacity building. vincial Administration in Nakuru and Eldoret). work for devolution, human rights, values and Since 2010, RCK in partnership with DRC Great Nine non-state actors were also interviewed: two principles of governance under the Constitution. Lakes has been engaged in IDP work under three international non-governmental organisations, Further revisions were made in July 2012 to make 1.4. The Partnership between strategic objectives for the year 2012: i) Lobbying four national actors and three members from the the draft Policy compatible with the Land Act the Refugee Consortium of for the enactment of the IDP Policy with different IDP Network. Informal reflections were also un- (2012), the Land Registration Act (2012) and the Kenya and the Danish Refu- duty bearers; ii) Creating awareness on the rights dertaken with members of the Eldoret field-based National Land Commission Act (2012). On 16th gee Council (Great Lakes and protection needs of IDPs in Kenya; and iii) Protection Working Group on 26st July 2012. March 2011, the group submitted a draft cabinet Civil Society Project) Documenting the advocacy and engagement pro- memo to MoSSP to accompany the policy for its cess towards an IDP policy framework in Kenya. presentation to cabinet. The Great Lakes Civil Society Project is a regional 1.5.3. Internal RCK Reflection To further entrench its advocacy work, the PW- programme implemented since January 2010 by GID had engagements with other stakeholders like the Danish Refugee Council in partnership with 1.5. Methodology of the Study While the consultants who conducted this study the Parliamentary Select Committee on the Reset- civil society organisations in six countries of the carried out interviews with the relevant stake- tlement of IDPs (PSC) and the Labour and Social Great Lakes region: Burundi, Central African Re- 1.5.1. Desk Review holders in an attempt to re-enact and re-examine Welfare Committee (LWSC), which resulted in public, Democratic Republic of Congo, Kenya, the policy development process, they also relied the development of the Bill on internal displace- South Sudan and Uganda. The vision of the pro- This study was informed by a review of a number on information accumulated by RCK from its own ment. The Prevention, Protection and Assistance gramme is to build the capacity of civil society to of secondary sources of information in the form advocacy work. RCK has played a significant role to Internally Displaced Persons Bill has already hold governments accountable to their commit- of publications, reports, minutes, concept papers, in the development of the policy framework on received Presidential assent while the broader ments to protect displaced persons by proposing as well as relevant national, regional and interna- internal displacement in Kenya. Initial efforts in policy document has been approved by the Cabi- realistic policy solutions to conflict and displace- tional frameworks on IDPs. This information was this respect have included preliminary discussions net and is awaiting presentation to Parliament for ment. The programme supports national civil so- used to build the context on IDP protection, iden- with actors around the prospect of developing an debate.4 ciety organisations in documenting and analys- tify gaps in existing protection and advocacy ini- IDP Policy. After the post-election violence, the ing specific displacement and conflict issues, and tiatives, identify the key stakeholders in IDP work, role of RCK became more concrete with the incep- translating these analyses into practical advocacy and establish benchmarks for protection and ad- tion of the Protection Working Group on Internal 1.3. Purpose and Objectives goals at the local, national and regional levels. The vocacy work. Displacement and of the legal and advocacy sub- of the Study project relies on existing legal and political frame- group for longer-term interventions such as policy works for the protection of refugees and IDPs and, development, promotion of access to durable solu- The purpose of this study is to capture and analyse where possible, encourages cross-border learning tions and ensuring a holistic approach to internal the advocacy and engagement process that went between civil society organisations and regional displacement in Kenya. The specific role of RCK
2 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 3 Chapter 1: Introduction
cannot be distinguished from the objectives and ings included the first committee meeting of the the national level, this study remained conscious these respondents had moved to work with other activities of the advocacy sub-group of the PWGID. Parliamentary Select Committee on the Resettle- of the primary obligation on the State to provide organisations or in other sectors. This affected to ment of IDPs in Naivasha in February 2011, and the protection and humanitarian assistance to inter- some extent the respondents’ understanding of The strength of RCK as a partner in this sub-group workshop between the MoSSP and the Ministry of nally displaced persons within their jurisdiction.9 the two processes. could be ascribed to several factors, such as its Land to build consensus around the provisions of extensive experience in advocacy and policy de- the draft IDP Policy for both ministries in order to At the heart of policymaking lies consensus-build- Thirdly, as some persons interviewed had been velopment, most notably with the development resubmit it to Cabinet in August 2012. RCK staff ing, which is achieved through a consultative and involved in the process of developing the policy of the Refugees Act in 2006. Its programming for also followed parliamentary proceedings during participatory approach. This study views partici- framework, there was a great risk of bias in their that period had the technical and financial support two of the three readings of the IDP Bill in parlia- pation in policymaking as a continuum, with ac- assessment of the process. The study, however, of the Danish Refugee Council Great Lakes Civil ment. They regularly prepared briefing notes and tors taking part in the process to different extents greatly benefited from these persons who had the Society Project and its approach and long standing shared with the advocacy sub-group to keep them depending on the surrounding circumstances and institutional memory of the process and remain relationship with relevant stakeholders including informed of progress of both the Policy and the their inherent capabilities or disadvantages. As a key proponents of the process. Government Ministries, civil society, UN bodies Bill. continuum, participation in policy encompasses and the IDP communities was close and constant a wide range of scenarios which may include: ex- enough to influence and garner support for certain change of information; public consultation and initiatives and thus lend legitimacy to its actions 1.5.4. Theoretical and Conceptual engagement; shared decisions and shared jurisdic- and the process at large. For instance, RCK sought Framework tion. Based on this, different actors would neces- to address issues emerging at the local level such sarily engage with the policy development process as the flawed profiling exercise by the Govern- In this study and report, “policy” will be under- to varying extents. This continuum was used to as- ment. stood in a very broad sense to include general sess the extent to which stakeholders participated policy, specific policy, laws, institutions and gov- in the process of developing the policy framework. RCK worked with partners to develop an abridged ernment practice. Unless otherwise specified, version of, and other IEC materials, on the draft therefore, reference to a policy framework in- policy. The IEC materials were disseminated cludes reference to the Constitution, legislation, 1.5.5. Shortcomings of the through its training sessions on peacebuilding and institutional set up and practices, whether in writ- Methodology reconciliation with peace committee members in ten form or not, existing in a single document or Uasin Gishu County and other training sessions for scattered across numerous sources, and whether The study encountered some methodological chal- state and non-state actors on the rights of refugees implemented in an ad hoc manner or sustained lenges. First, there were several advancements and other forced migrants. RCK also engaged with and guided by some objective work-plans. It also made on the part of the Government towards the formal and informal channels to maintain knowl- includes failure by the Government to take partic- policy which were not properly documented. The edge on the process and intervene where possible ular action or courses of action (omission). study would have benefited from engaging with with this advocacy expertise. For instance, RCK more Government stakeholders as key informants benefited from the Executive Director’s previous In analysing the role of CSOs, this study greatly that could have shed light on the internal dynam- engagements with the Minister of State for Special relied on a five-stage policy development cycle ics that affected the policy development process. Programmes (MoSSP) in the development of the which covers setting the agenda for policy devel- This was not done on two accounts: first, because Sexual Offences Act.6 These established relation- opment; formulating the policy; adopting the pol- Government actors were scattered across numer- ships and facilitated the organisation of high level icy; implementing the policy; and evaluating the ous ministries, sometimes with uncoordinated ap- meetings at short notice, helped the sub-group ac- policy.7 By using the cycle, this report systemically proaches, and second because of time constraints. cess timely information such as the status of the assesses and re-examines the policy development For instance, while the PSC and its members draft policy within the MoSSP and made it easier process for ease of reference and adaptability for played an important role in the policy develop- for RCK to mobilise the relevant ministry staff to application in other contexts. ment process, it was not clear what their exact mo- participate in the key workshops and meetings re- tivation was nor what criteria were used to iden- lated to advocacy around the draft IDP Policy. The analysis in this report greatly benefited from tify the original members of the committee. In the same spirit, the MoSSP recognised the role the approach outlined in the Brookings Institu- of RCK in the process of developing the policy tion’s manual for law and policymakers especially Secondly, though the interviews with the respond- framework and subsequently invited RCK to con- in assessing the standard of protection offered ents targeted persons and institutions that had tribute to critical technical meetings that pushed through policy interventions.8 While seeking to es- been significantly involved in the policy devel- the policy forward at different stages. Key meet- tablish best practices that could be utilised beyond opment process, at the time of the study some of
4 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 5 placement include mainly Molo, Njoro, Kuresoi, 2.1.5. Development Projects and Chapter 2: Eldoret, Burnt Forest, and Coastal region.17 Displacement Setting the Scene Kenyans have also been displaced from their lands 2.1.3. Border and Resource and homes on account of development projects Disputes Including Cattle and environmental conservation efforts carried Rustling and Banditry out arbitrarily. A recent decision from the African The Great Lakes region is said to be home to over it was expected that this adverse legacy of colonial Commission on Human and Peoples’ Rights re- eight million internally displaced persons.10 IDPs land alienation processes would be corrected.13 Closely associated with political conflict are bor- stored the land rights of the Endorois community are persons or groups of persons who have been der disputes arising from arbitrarily established who had been displaced from their ancestral lands forced or obliged to flee or to leave their homes or However, the post-independence government administrative boundaries and contested land to make way for a game reserve.26 More recently, places of habitual residence, in particular as a re- went ahead to preside over a land re-distribution rights. As administrative boundaries began to cre- a taskforce recommended the eviction of persons sult of or in order to avoid the effects of armed con- programme that instead became a further source ate ethnic enclaves, minority communities within deemed to have encroached on the Mau Forests flict, situations of generalised violence, violations of discord. Initial land allocations in favour of per- these boundaries soon became the target of force- complex in a bid to conserve the country’s essen- of human rights, natural or human-made disasters, sons who had been labourers on the settler farms ful evictions. Areas such as Chesikaki in Mt. El- tial water towers.27 As of September 2011, some and development programmes and who have not incensed the pastoralist communities of the Rift gon, Ol Moran in Laikipia West, Thangatha in Ti- 6,500 families had been evicted from the complex crossed an internationally-recognised state bor- Valley and fuelled the sentiment of “outsider com- gania, the Pokot/Turkana border, Riosiri in Rongo, with a further 23,500 projected for eviction once der.11 Internal displacement within the region has munities” which continues to persist to this day. Tembu in Sotik, Masurura in Transmara, Marsa- the next phase of restoration commences.28 Other been caused by conflict, disaster, violence, mas- The situation was compounded by a programme to bit-Isiolo and Tana River18 have been particularly projects that may lead to displacement include sive development projects and socio-economic empower communities through formation of land- problematic in this regard.19 Related to general the Lamu Port-Southern Sudan-Ethiopia Trans- inequalities leading to landlessness among other buying companies which saw large-scale land ac- disputes about resources is the evolution of cattle- port (LAPSSET) project and the discovery of oil in things. This population is distributed across all the quisition by communities perceived as close to the rustling from a traditional practice to one of bellig- Turkana. The LAPSSET project will comprise of a nations that fall within the region and represents a centre of power. This historical context infused erence and criminality fuelled by politics and the port, an international airport and an oil refinery in significant segment of global statistics on internal itself with the political and ethnic relations of proliferation of small arms and light weapons. Pas- Lamu along with a road and pipeline network cut- displacement. 12 Kenyan society and has become a cause of peri- toralist communities such as the Pokot, Turkana, ting across Kenya, Ethiopia and Southern Sudan odic population movements and displacement in Marakwet, Samburu, Tugen and Keiyo continue to and according to initial assessment by the govern- Kenya has a long history of displacement with a Kenya.14 endure incidences of displacement, death and loss ment may affect 6,000 families.29 climax in the aftermath of the 2007/ 2008 post- of livestock over time20, as detailed in a 2003 study election violence. This section discusses some of on conflict in Northern Kenya estimating the level the causes of violence in Kenya as a way of provid- 2.1.2. Election-related Violence of displacement in the pastoralist areas of North 2.2. Towards a Policy ing a context for understanding advocacy work for Frontier Districts (NFDs)21 in Kenya22 at 164,457. Framework a policy on internal displacement. Massive internal displacement in Kenya can be traced to the re-introduction of multi-party poli- From the very outset, it must be acknowledged tics in 1992 with political parties formed largely 2.1.4. Natural and Human Made that although before 2008 Kenya did not have a 2.1. Causes of Displacement in along ethnic lines becoming vehicles for champi- Disasters 23 single repository encompassing all its policies in Kenya oning redress for perceived communal injustices. relation to internal displacement, such polices did This trend continued into the 1997 general elec- A historical profile from 1975-2004 indicates exist. The policies existed as part of other laws, for 2.1.1. Colonial and Post-Colonial tions, with violence registered in the Rift Valley that Kenya has experienced multiple episodes of instance those relating to human rights, develop- Factors and Coast provinces leading to the displacement drought, landslides and floods in various parts of ment plans, disaster response, compulsory acqui- of 120,000 people. The victims were largely from the country with far-reaching economic and social sition of land, armed conflict and laws on general The introduction of colonisation saw the forced communities perceived as supporters of opposi- consequences.24 Kenya experiences regular floods administration. Other policies existed not in writ- displacement of African communities from their tion parties. In total, election-related violence pri- in the areas of Kano, Nyakach, Rachuonyo, Migori, ten form but were employed through practice and ancestral lands to make way for the white settlers. or to the 2007 general elections is said to have been Budalangi, Kilifi, Kwale, the Tana River Basin, Gar- mostly depended on the preferences and priorities In Kenya, this was exemplified in evictions from responsible for the displacement of approximately rissa, Wajir, Nairobi, Nakuru, Mombasa, Kisumu, of the government of the day. 30 What Kenya was fertile lands in Rift-Valley and Central Kenya where 350,000 persons.15 Violence following the 2007 Baringo, Elgeyo and Marakwet districts.25 Land- really missing before the 2008 displacements was the natives were reduced to squatter-labour force general elections saw an escalated and unprece- slides and mudslides also occur mostly during the a consistent and coordinated response to internal for colonial settlers. At the time of independence, dented level of displacement that affected 663,921 rainy season and are accelerated by flooding. displacement. The Government did not expressly people.16 Areas affected by election-related dis- recognise the protection needs of IDPs, and inter-
6 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 7 Chapter 2: Setting the Scene
ventions were consequently majorly ad hoc and tors working on IDP issues in Nairobi. The work- vision of assistance to IDPs after the post-election 2.2.2. Development of a not focused on IDPs as such. shop led to the formation of a Task Force on IDPs violence; to analyse the situation of IDPs displaced Legislative Framework comprised of all interested CSOs organised on a by other factors other than the post-election vio- Even without a comprehensive law for the pro- rotational basis. It drew up a strategy to push for lence; to review the existing and anticipated policy, A legislative instrument forms part of a broader tection of IDPs, the Government has on several the development of a legal and policy framework legal and institutional frameworks at the national policy context and seeks to give effect to various occasions sought to investigate disruptive in- on internal displacement, highlighted the need and international levels; to get the voices of IDPs aspects of the policy by giving them the force of cidents that led to displacement. In this regard, for durable solutions, including the development and strengthen their involvement in all decision- the law. Similar to the need for broader policy on the Government had previously established vari- of pilot projects for the resettlement of IDPs, and making processes; to develop a framework for internal displacement, the need for legislation on ous temporary institutional mechanisms to con- sought to establish a mechanism for dialogue and building the capacity of stakeholders and to profile internal displacement was identified during the duct enquiry into incidences of displacement advocacy work in cooperation with other actors.35 IDPs; and to develop strategies for advocacy and workshops held in March and April 2007. Howev- and make recommendations.31 Further, following common interventions.37 er, the real momentum came when Parliament es- the displacements triggered by the violence in From 23rd to 25th April 2007, the International tablished the Parliamentary Select Committee on 2007/2008, it could be seen that the Government Refugee Rights Initiative (IRRI), IDMC and the This forum was followed by a National Stakehold- the Resettlement of IDPs (PSC) on 17th November had some basic mechanism for responding to in- Norwegian Refugee Council (NRC) co-organised ers’ Review Forum held in Nairobi on 14th March 2010 in response to what it considered an inad- ternal displacement, or rather, to disasters. At the a regional workshop at the Silver Springs Hotel 2012 and during which a preliminary draft outlin- equate government response to internal displace- onset of the crisis, the Ministry of State for Pro- in Nairobi to encourage the adoption and imple- ing the key provisions of an IDP policy was devel- ment. The mandate of the PSC included examining vincial Administration and Internal Security co- mentation of protection mechanisms for IDPs. oped by the LASWG and presented to partners for the policies and laws governing all forms of forced ordinated interventions through the Disaster and On the basis of this event, national stakeholders review. Deliberations from this forum were used displacement and coming up with a draft Bill on Emergency Co-ordination Department. Later, the were expected to host a follow-up conference with to improve the draft, the content of which was fi- forced displacement.42 Having conducted numer- MoSSP established the Mitigations and Resettle- a view to strengthening intervention strategies as nalised in April 2010.38 Following the agreement ous public hearings with multiple stakeholders, ments Department to assist in resettling and re- the general elections approached. Additionally, on the general outline and content of the policy, the PSC recommended the need for a legislation storing livelihoods for IDPs after being made the the workshop was supposed to spearhead legal the LASWG developed in May 2010 an advocacy to ensure that government action on internal dis- focal point for coordinating interventions. The and policy actions while advocating for durable strategy for the draft policy to run from June to placement would be well coordinated, adequately MoSSP also had the Humanitarian Fund for Miti- solutions for IDPs in Kenya. Between August and December 2010. From May to December 2010, resourced and in line with its constitutional and gation of Effects and Resettlement of Victims of October 2007, the Task Force undertook prepara- the Sub-Working Group audited the existing legal, international obligations.43 the 2007 post-election violence.32 tory work for the conference. Unfortunately, the policy and institutional frameworks with a view This recommendation provided an avenue for the conference had to be moved to February 2008 as to informing the implementation of the proposed PSC and the PWGID to work together given the The move towards a comprehensive and cohesive the election period appeared not to provide a con- policy. A detailed matrix was developed and dis- progress made so far by the PWGID in relation to framework on internal displacement was there- ducive environment to hold it in November 2007. seminated indicating the weaknesses in the exist- the draft IDP policy. fore a reactionary phenomenon brought about by The conference did not take place in February as ing legal architecture and justifying the need for a the level of prominence afforded to internal dis- planned because of the violence that erupted after concrete legal framework to foster the implemen- placement following the post-election violence the 2007 elections. The agenda items of the pro- tation of the draft policy. 39 2.2.3. Synchronising the Policy in 2007/2008. The unsatisfactory nature of re- posed workshop were finally realised during the and Legislative Processes sponses by the Government (poor coordination, stakeholders’ forum organised in July 2009 to dis- In November 2010, the LASWG revised the draft short-term planning, failure to allocate sufficient cuss durable solutions and the establishment of a policy to bring it in line with the newly-promul- While the entry of the PSC into the discourse on resources and poor profiling) and the uncoordi- policy framework for IDPs. gated Constitution of Kenya.40 Following these establishing a framework for the protection of nated way in which various CSOs responded to in- revisions, a draft cabinet memo was prepared and IDPs was timely, it brought with it some structural ternal displacement following the violence served presented to the MoSSP on 16th March 2011. This challenges. Whereas the PWGID had concentrat- to highlight the need for a framework to act as a 2.2.1. Development of an was later presented to the relevant Cabinet sub- ed its efforts on developing the broader policy and platform for collaboration and coordination. Overarching Policy committee.41 Later, on 18th July 2012, the policy had worked closely with the executive arm of the Framework was revised to align it with developments in the government (MoSSP and MoJNCCA), the PSC’s While there had been earlier attempts at advocacy land sector, in particular with the provisions of the mandate on the other hand was parliamentary. on internal displacement, efforts intensified in Although the need for a policy on internal displace- Land Act, the Land Registration Act and the Na- In addition, its initiation was not related to the 2007 33 when the United Nations Office Coordinat- ment had been mooted in 2007, it properly began tional Land Commission Act with respect to the broader policy development process. The process ing Humanitarian Affairs (UNOCHA) 34 and the In- in 2009 with a stakeholders’ forum in Nairobi held protection of IDPs in the context of landlessness. of cooperation with the PSC therefore started ternal Displacement Monitoring Centre (IDMC) on 30st and 31st July 2009.36 The specific objectives with attempts to reconcile and merge the progress co-hosted the first capacity-building workshop on of the forum included to reflect on the gains made made so far by the PWGID on the policy with the the Guiding Principles on IDPs for non-state ac- and challenges faced in the protection of and pro- mandate, interests and strategies of the PSC.
8 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 9 Chapter 2: Setting the Scene
This process started with a strategic planning These forums marked important stages in the derstandings of IDP issues, and despite the fact course of developing the IDP Bill, the PSC made ef- workshop organised by the PSC in which mem- policy development process, especially where the that a lot of the sensitisation had been conducted forts to hold the MoSSP accountable for the status bers of the PWGID advocacy sub-group outlined realisation of the Bill was concerned and in the by the PWGID, specifically targeting the LSWC. of the draft IDP Policy and the Ministry of Lands key issues regarding internal displacement and sensitisation process of the PSC to understand, Examples include the introduction of integrated to be involved in the process by summoning the introduced the draft IDP policy to the PSC. The and consequently support, the proposed policy IDPs as a separate category of IDPs requiring defi- Ministers during its public hearings. Bill prepared by the PSC was presented during this framework for internal displacement. The PW- nition and references to IDP protection as refugee workshop and it was agreed that it should be re- GID submitted the final version of the Bill to the protection. It was promising to note, however, that Both the draft Bill and draft Policy on internal vised in accordance with the contributions made at PSC during the December workshop and commit- MPs recognised the Bill as addressing all forms of displacement have incorporated international the workshop, the principles related to protection ted to work with the MoSSP and other Govern- displacement including historical evictions and standards on the protection of IDPs.49 The policies during internal displacement and other legislative ment stakeholders to move the process forward.45 praised it for acknowledging the forthcoming de- adopt a human-rights based approach, establish a drafting requirements. volved system of government. coordination framework and emphasise the pri- The final report of the PSC was unanimously mary responsibility of the government to protect This initial engagement was followed by a work- adopted in Parliament on 2nd August 2012.46 The The third reading took place on 4th October 2012 IDPs while spelling out the role of non-state ac- shop organised by RCK between the PWGID and report had a number of recommendations includ- and brought about the most amendments both tors. In addition, both the broader Policy and the the PSC, which further discussed the international ing one that called for: from Parliament and indirectly from stakehold- Bill deal with displacement through all its phases standards on IDP protection, the extent to which ers through submission of proposed amendments from prevention to the achievement of durable so- they were incorporated into the draft IDP policy The Government [to] establish a legal framework to Hon. Ekwe Ethuro. Most notably, Hon. Esther lutions and respond to all forms of displacements and the probable role for an IDP Bill. This second on internal displacement through formulation of Murugi proposed that the IDP Fund be funded irrespective of their cause. workshop took place on 30st September and 1st Oc- [a] policy and enactment of the draft bill on preven- from the Exchequer (Government budgetary allo- tober 2011. RCK, together with the PWGID, con- tion, protection and assistance of IDPs. This legal cation). Hon. Millie Odhiambo also lobbied hard to The collaboration and networking amongst the vened this forum to review the initial draft of the framework should take into account the UN Guid- ensure that IDPs and UN agencies remain within members of the PWGID has enriched the process IDP Bill and to work towards conclusion of the pro- ing Principles, the AU Convention (Kampala Pro- the National Consultative Coordination Commit- and provided a blend of expertise. Of significance cess. The forum appointed the PWGID advocacy tocol) and Great Lakes Protocol on Protection and tee. The clause on armed groups being required to has been the involvement of the legal expert from sub-group to review the draft Bill and submit it for Assistance of IDPs.47 adhere to the provisions of the Act was deleted for the Office of the UN Special Rapporteur on IDPs, a final review and validation in December 2011, fear that such observance would afford legal status who helped in drafting both the Policy and the Bill. just before the expiry of the term of the PSC.44 The With the adoption of the Committee’s report, the or recognition of armed groups despite the provi- The legal expert critically analysed the interna- composition of the PWGID, and the advocacy sub- chair of the PSC, Hon. Ekwe Ethuro, seized the sion expressly providing otherwise. tional frameworks on internal displacement so group in particular, benefited from having a long- opportunity to build momentum for the enact- that the proposed drafts were attuned to any dis- standing structure, as the PSC were persuaded by ment of the IDP Bill. The Bill was published on 24th crepancies with the UN Guiding Principles or the this arrangement when it came to committing the April 2012, and was presented to Parliament for its 2.2.4. Taking Stock of the Process Great Lakes Protocol, as well as existing provisions review of the draft with a reliable and proven ar- first reading on 13th June 2012. After its first read- within national legislation, the most notable one rangement. ing in Parliament, the Bill was committed to the Although the process of establishing a policy being the Constitution of 2010. The members of Parliamentary Labour and Social Welfare Com- framework for the protection of IDPs in Kenya is the PWGID advocacy sub-group remained stead- The second forum was attended by the Minister of mittee (LWSC) for review. The PWGID advocacy yet to be fully completed, the advocacy efforts that fast in their advocacy work and kept the agenda State for Special Programmes, who expressed her sub-group organised a forum in Mombasa in July went into its development have recorded some re- within the mandate of their protection work. support for the draft Bill. The Minister’s participa- 2012 to sensitise members of this committee on markable achievements. The process of passing tion was also important as it provided an opportu- the protection needs of IDPs and took the oppor- the legislation has moved fast despite a crowded The participation of the Government in drafting nity to lobby her to hasten the finalisation of the tunity to lobby for its adoption in Parliament. The legislative calendar that was preoccupied with the policy helped elevate the status of the advo- policy that had stalled for some time. The PWGID Bill underwent three readings in Parliament be- the implementation of the Constitution through cacy work by promising official support. Repre- used this forum strategically to lobby for the Min- fore being passed. It is useful to note the key delib- scheduled legislations.48 The initiative managed to sentatives from the Ministry of State for Special istry’s support of the draft Bill, especially because erations that occurred during the readings as these highlight the protection needs of IDPs and helped Programmes and the Ministry of Justice attended the Bill would be tabled in Parliament as a “private informed the state of the Bill as it was passed and construct it as a national problem that transcend- most of the meetings where the policy was being members’ bill”. The Minister’s commitment to sup- the concessions and challenges for stakeholders in ed ethnic and political affiliations. By successfully developed. porting the Bill was instrumental at the later stages policy making. developing this narrative, the advocacy work has The stakeholders carried out activities aimed at of debate on the Bill, as the Ministry moved a cru- set the pace for objective discussions. disseminating the content of the policy and leg- cial amendment that provided for the proposed The second reading took place on 19th September Support for the Bill on internal displacement has islation through various forums. This was done IDP humanitarian fund in the Bill to receive fund- 2012 and showed broad based support for the Bill, brought about a renewed push for the adoption through the production and dissemination of ing from the Government’s consolidated fund. albeit with significant misconception and misun- of the draft IDP Policy within the MoSSP. In the brochures, documentaries, policy briefs and posi-
10 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 11 Chapter 2: Setting the Scene
tion papers, periodical reports and Information, Educational and Communication (IEC) materials. Chapter 3: Others strategies entailed updates and sharing of infor- The Role of the PWGID: mation through monthly PWGID meetings. Press statements, TV and radio talk show programmes Added Value of a National were also used to create public awareness on the engagements.50 Coordination Mechanism
Finally, although the policy on internal displace- ment is based on international standards, it also enhances and elevates the instruments in Kenya. In Kenya, the PWGID provided a vehicle for the 3.2. Collective Responses For instance, the enactment of the Bill on internal coordination of advocacy efforts and collective within the PWGID displacement gives the standards full force of law. approaches on internal displacement. It acted as The policy itself is specific on the obligation im- a focal point for discussions, information sharing, The PWGID was established on 3rd February 2009 posed on the State as the primary protector with planning and review of strategies by various stake- to replace the national IDP Protection Cluster other actors playing only a supporting role. More- holders51 involved in advocacy and other interven- (PC).52 The PC was spearheaded by the UNHCR over, the policies anchor protection of IDPs on a tions on internal displacement. in January 2008 and brought together more than right-based platform thereby confirming that the 30 agencies from the UN, KNCHR, national and protection of IDPs is not a mere political venture international NGOs and the IDP Network.53 but a human rights issue. 3.1. Institutional Responses to the Post-Election Violence The mandate of the PWGID 54 was to enhance in 2007/2008 the capacity of actors to address the protection needs of IDPs throughout Kenya through train- The aftermath of the 2007/2008 post-election vi- ing on the Guiding Principles, advocating for the olence and the humanitarian crisis that followed, implementation of the Great Lakes IDP Protocol, exposed the ineffectiveness of existing govern- finalising the ratification process of the Kampala PWGID workshop with PSC on resettlement of IDPs, at Pangoni Beach Resort from 4th - 6th Dec. 2011 ment structures to respond to internal displace- Convention, developing a national legal and policy ment. It triggered action towards establishing a framework for the protection of IDPs in Kenya, legal and institutional framework focused exclu- establishing a monitoring mechanism to ensure sively on internal displacement. compliance with regional and international com- mitments, and identifying the protection needs Organisations interviewed for this study indicated of IDPs by highlighting the human rights context, that they have responded in various ways to issues gaps and specific government obligations.55 surrounding internal displacement within their institutional mandates, interests and strategies. On 3rd February 2009, the Legal Aid Sub-Working Their key strategies include advocacy for durable Group was formed to provide technical support to solutions, work on the development of a policy and advise the PWGID around a number of issues, framework on the protection of and provision of which included the development of policies and assistance to IDPs, coordination of humanitarian legislation on internal displacement, the provi- responses, research and documentation of IDP is- sion of legal aid to IDPs during their engagements sues, and provision of technical and financial sup- with judicial and quasi-judicial processes such as port for activities related to the protection of IDPs. Tribunals, the Truth, Justice and Reconciliation The coordination of most of these interventions Commission (TJRC), the design of schemes for was done through the “Early Recovery Coordina- reparation, pursuit for durable solutions, and en- tion Mechanism” which provided a forum for part- forcement of the obligation of Government to pro- nership and collaboration in a multifaceted yet in- tect IDPs. Following the finalisation of the drafting terconnected approach in various areas. process for the policy in April 2010, the LASWG
12 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 13 Chapter 3: The Role of the PWGID: Added Value of a National Coordination Mechanism
was converted to the Advocacy Sub-Working Another remarkable achievement is the fact that The group also managed to highlight the protec- field levels, affected the extent of participation and Group (ASWG) and mandated to publicise and the PWGID has advocated for the achievement of tion needs of other categories of IDPs beyond decision-making within the group. The burden of lobby for the adoption and implementation of the durable solutions for IDPs by monitoring and sup- those resulting from the 2007/2008 post-election facilitating meetings and related activities was policy and other legal frameworks on the protec- porting the provision of assistance to the affected violence. For instance, it undertook a fact-find- often left to a few organisations, thereby limiting tion of IDPs.56 communities and lobbying for the recognition ing mission to Turkana County with respect to collective ownership of projects within the group. of other categories of IDPs (in addition to those drought-induced displacement. The main mo- This often affected working relationships between displaced by 2007/2008 post-election violence). tivation behind this mission was to find ways of participating organisations and prevented some 3.3. Key Achievements of the Stakeholders have also managed to identify their extending the mandate of the PWGID beyond the from taking positions on vital issues. Tied to this PWGID common interests through the PWGID, thereby protection of IDPs displaced by the post-election was the “politics of visibility” which sometimes bringing consensus and commitment and helping violence to include IDPs resulting from natural encouraged unhealthy competition amongst the Some remarkable achievements by the PWGID build a common front in intervention. The group disasters.59 members. were identified by the respondents in this study. has thrived despite the diversity of competencies First, the PWGID as a coordination forum brought and expertise dictated by their mandates. Finally, the group supported the development of Thirdly, the group suffered from a problem of co- together a strong, vibrant and resilient coalition the draft Policy and Bill on the protection of and ordination at the national and local levels, which of state and non-state actors giving prominence The PWGID has also facilitated timely gathering provision of assistance to IDPs in Kenya. This was could be attributed to the lack of a full-time secre- to the issue of IDPs. This sense of shared purpose and dissemination of information on the protec- done as envisaged within the terms of reference tariat to run the working group. Additionally, the was created through regular meetings, sharing of tion of IDPs.57 A case in point was the collection given to the Working Group in 2009 which was re- lack of a definite policy on internal displacement information and development of joint strategies. of data on the number and condition of IDPs after affirmed annually and helped the group to engage to inform such coordination led to occasional con- These actors played varying roles in the process the 2007 post-election violence. This process was in long-term interventions beyond responding to flicts between the MoSSP and other government largely depending on their institutional mandates, undertaken by the MoSSP, in collaboration with the short and medium-term needs arising from the ministries. This was particularly apparent in the the technical expertise and personal commitment the Kenya National Bureau of Statistics and the 2007/ 2008 post-election violence. emergency phase of the post-election violence of individual PWGID members and the financial UNHCR. as the Ministry of Provincial Administration and resources available from their respective organi- Internal Security and the MoSSP jostled for con- sations. In addition, the state and non-state actors brought 3.4. Key Challenges trol of the resources directed to humanitarian together under the PWGID have enhanced aware- response and in the resettlement phase between Indeed, the PWGID managed to enlist the partici- ness and carried out capacity-building for various The PWGID did meet some challenges. First was the MoSSP and the Ministry of Lands in regard to pation of the State in the working group through stakeholders on the protection, provision of assis- the lack of effective local level participation in funds for the purchase of land to resettle IDPs. the KNCHR, MoSSP and MoJNCCA. At the field tance and other mechanisms for durable solutions. agenda-setting of the work of the PWGID. One level, personnel from the Provincial Administra- Since 2007, the Government has acknowledged respondent lamented that the group’s agenda was Fourth, the high turnover of persons seconded from tion chaired the field-based PWGID meetings. the need for training of its officers on the rights of written in Nairobi without any consultation with participating organisations to participate in the This elevated the status of its work and gave it the IDPs in order to effectively provide assistance and the field-based groups. This affected the linkage meetings of the working group affected the lead- assurance of government support, and to a great protection to IDPs. It has availed officers at differ- between the work of the national and field-based ership and continuity of operations. Some mem- extent allowed the government to recognise its co- ent levels to attend training sessions, mostly con- groups and undermined feedback channels on bers took time to familiarise themselves with the ordination and intervention mechanisms. ducted by members of the PWGID.58 protection work as well as advocacy on the policy group’s agenda, and as such could not participate framework.60 Even though the advocacy sub-group optimally in the work of the working group, while The involvement of UN agencies in the work- Furthermore, the working group promoted the es- of the PWGID remained the most active unit in others did not stay long enough to have impact on ing group also enhanced its political standing. By tablishment of child-focused initiatives in its ad- policy work, it lacked representation at the field decision-making within the group. This affected January 2008, the Government had sanctioned vocacy and dissemination of information on inter- level and had to rely on reports from field officers the output of the group especially on matters that the establishment of 11 UN clusters, which played nal displacement. In Molo, such initiatives were to inform its advocacy interventions61. Conse- required prompt and effective decision making.62 a critical role in the management of the post-elec- successful in raising awareness on and advocat- quently, field-based stakeholders were concerned tion violence crisis. This cooperation has since ing for child rights and the need for child protec- about the poor participation of IDPs at the meet- Fifth, the absence of accurate and up-to-date data evolved from the emergency response phase to tion mechanisms in the area. This resulted in the ings due to inadequate facilitation. They were also on the number and status of IDPs caused major more long-term goals, like formulating a policy deployment of a district children’s officer to assist concerned about the failure by key state actors to protection gaps in the group’s work. The process and legal framework on internal displacement. with case management of the violations of child attend their meetings so as to respond to emerging and outcome of the government profiling exer- The UN agencies involved in the working group rights. In other parts of the country, child-focused issues. cise was rejected by IDPs as flawed and not cred- were UNHCR, UNICEF and UNOCHA. Disaster Risk Reduction was piloted through ible as a significant number of affected persons schools where children were responsible for culti- Secondly, limited financial resources coupled with claimed they were left out arbitrarily. There were vating crops to mitigate climate change disasters. bureaucratic processes, both at the national and also allegations of corruption against the provin-
14 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 15 Chapter 3: The Role of the PWGID: Added Value of a National Coordination Mechanism
cial administration officials who were steering the their original homes and for lacking mechanisms profiling process around the country.63 Moreover, to ensure accountability in the allocation and utili- Chapter 4: the database developed by MoSSP did not disag- sation of funds earmarked for the exercise.66 gregate data on account of vulnerabilities and spe- The Role of Civil Society cial needs and was limited to victims of displace- Finally, referring to the original terms of reference ment related to the post-election violence in 2007/ and principles of engagement prepared for the 2008, and mainly to those based in camps. The Working Group, it failed to provide effective legal MoSSP rejected an offer to review its database in aid to support IDPs in their engagements with the Civil society organisations, mostly from the PW- originates from the government or from non-state a joint initiative with the PWGID.64 After consul- International Criminal Court and the Truth, Jus- GID, have participated to various extents in the re- actors and the institutional context in which tations between the ministry and working group tice and Reconciliation Commission; the purchase sponse to the problem of internal displacement in it does. All these factors converge to determine the collapsed in June 2011, the MoSSP proceeded to and registration of land and other immovable Kenya. Some of these responses and interventions framing of issues and the subsequent discourses in unilaterally carry out the verification exercise. property; the facilitation of pro-bono representa- revolve around working with the survivors and the development process. However their objective was for the exclusion of tion of IDPs in matters requiring legal and/or ju- families of victims of displacement to seek justice, beneficiaries who had illegitimately profited from dicial intervention; the institution of class action undertaking research to highlight the needs and Related to the identification of the issue is the iden- Government assistance and not to include poten- or test cases on behalf of IDPs, among others. Most concerns of IDPs, undertaking peacebuilding ini- tification of objectives, which set out a clear path tial beneficiaries who should have been profiled in of these were done by other networks such as the tiatives and contributing resources to assist with to be taken to respond to the identified issue(s). At the first place. Kenya Transitional Justice Network, Kenyans for resettlement. the beginning, the objective could be tentative and Truth with Peace and Justice (KTPJ) and the Land general in nature and is refined as the process pro- Sixth, efforts towards peacebuilding and psycho- Sector Non-State Actors (LSNSA). This could be Beyond provision of direct humanitarian assis- gresses. The objectives also play an important role social counselling were yet to fully gain traction attributed to the failure by the working group to tance to IDPs and other affected communities, in guiding the implementation of the policy as well with a section of IDPs refusing to return to their monitor and evaluate its plans of action and part- CSOs have also supported the development of as in reviewing the policy once adopted. When farms while others faced hostility in proposed ar- ner with like-minded organisations and networks the policy framework for the protection of IDPs properly thought out, the statement of objective eas of resettlement. Other categories of displaced to extend its reach. Moreover, attempts to incor- in Kenya. In fact while the Government bears should encourage collaboration among all actors persons 65 protested the Government’s resettle- porate organisations working with special needs the primary responsibility to protect its subjects and minimise any risk of disagreement or conflict. ment initiatives on account of perceived exclusion. groups within the displaced population such as from the effects of displacement, CSOs played a The support and protection given to PEV IDPs by women, children, persons living with disabilities, disproportionately prominent role in the process As Kenya already implemented some programmes the Government were criticised for being arbi- the elderly, and persons living with HIV/AIDs of developing a policy framework on internal dis- geared towards responding to internal displace- trary in forcing and threatening IDPs to return to were limited.67 placement in Kenya. This chapter analyses the in- ment, the first issue was to determine whether volvement of CSOs based on a five-stage model of to have a stand-alone and self-contained policy policy development process. Although this model on internal displacement or to incorporate spe- of analysing policy development process is a con- cific provisions into already existing frameworks. venient way to review the participation of CSOs, According to the analysis and legal audit by the PWGID Workshop with Members of the LSWC on 31st July, 2012 it must also be understood as a mere theoretical PWGID between 2009 and 2010, a clear need for framework, because in practice policymaking does a specific policy on the protection of IDPs was not follow such an organised, predictable and lin- identified. Additionally, the stakeholders’ forum ear model. at Jacaranda Hotel on 30th and 31st July 2009 had answered this question by recommending the de- velopment of an IDP-specific policy capable of 4.1. Identifying the Problem addressing the complexity of the IDP problem, but also to increase accountability, improve the Since policies seek to respond to particular is- coordination of stakeholder interventions, pave sues or problems, the identification of the issue the way for proper planning and budgeting, and to deal with is a natural starting point. The man- monitor compliance of requirements under the ner in which the issue or problem is identified de- UN Guiding Principles on Internal Displacement. pends on a number of factors, such as whether the The CSOs present identified the lack of a compre- identification takes place in the context of regular hensive policy as the main issue undermining the monitoring and review process or is brought about protection of IDPs in Kenya. by a crisis, and whether identification of the issue
16 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 17 Chapter 4: The Role of Civil Society
Indeed, the electoral violence that took place in tection mechanisms into already existing frame- both the Policy and the Bill incorporated interna- draft Bill. The group provided consistent support Kenya in 2007/ 2008 highlighted the Government’s works. They then had to agree on the standards of tional standards on IDP protection. The process of to the Parliamentary team that was champion- failure to respond to the protection needs of IDPs protection which would have to be incorporated drafting the IDP Bill brought about many technical ing the legislation through preparation of ques- within a clear and specific implementation frame- into the policy. These standards represented vari- questions. Key contentions included the extent to tions for presentation to Parliament, conduct- work. Developing such a framework rather than in- ous policy options and CSOs even convened fo- which substantive provisions should be written, as ing research and preparing amendments for the troducing amendments to other sectors appeared rums to build consensus among stakeholders on opposed to scheduling the relevant instruments. improvement of the Bill. This included frequent to be an efficient way of addressing displacement possible frameworks based on internationally rec- This caused tensions within the drafting team. In meetings with the MPs to develop strategies on and developing a specific policy to deal with it. The ognised protection standards.69 the end, a mixture of both drafting methodologies how to counter any opposition to the Bill and in- sense of urgency also came from the perception was achieved as stakeholders lobbied for specific corporation of further amendments to the Bill for that Kenya needed a policy to prevent the recur- During discussions on whether or not there ex- provisions that did not appear in any of the inter- those that were proposed on the floor of the House. rence of violence in following presidential elec- isted sufficient provisions in existing legislation to national instruments to be substantively drafted. tions, expected at the time to take place between deal with displacement, some expressed concern In terms of content, concessions also had to be Generally, as the policy development process August and December 2012. The advocacy initia- that having a specific law and policy on the pro- made at every stage. The broader terminology of moves towards higher levels, non-state actors tives were actively led by CSOs (through the PW- tection of IDPs could institutionalise the status of “arbitrary displacement”, for example, was amend- have decreasing control over it as legislative devel- GID) with some participation from Government. IDPs, thereby making it a permanent problem in ed to cover development projects and projects to opment (including eventual approval or rejection) Consequently, while the proposal to radically al- Kenya, or marginalise the issue, thereby reducing protect the environment. While such a provision remains within the sanctum of Parliament. There ter the legal architecture for dealing with internal the likelihood of reaching adequate government would have provided an additional protection for still remains room, however, to lobby and provide displacement did not receive opposition from the response to the problem. CSOs managed to de- IDPs, some of its aspects are covered under the logistical and technical support. For instance, in Government, the latter remained rather indifferent construct this misconception by showing that in- body of law on international humanitarian law December 2011, participants from a workshop or- and uncommitted to the process. ternal displacement went beyond the 2007/2008 and other penal laws, so that to some extent such a ganised at Pangoni Beach Resort sought to push post-election violence, and as such there was need mechanism could be termed unnecessary. Provid- the MoSSP to fast-track the process of adopting The Commission of Inquiry into the Post-Election to have a sustainable framework to prevent future ing for criminal responsibility was another provi- the policy document by cabinet by formulating the Violence had made the following diagnosis: displacements while making provisions for as- sion that was initially contemplated but is covered following question to be presented to Parliament sistance and protection. This was accomplished by the Rome Statute, to which Kenya is a signatory, by an MP (Hon. Ekwe Ethuro, Chair of the PSC): From the evidence we have gathered so far, there mainly through sensitisation forums targeting key and by the International Crimes Act 2008. exists sufficient basis for enacting a clear policy and stakeholders in the policymaking process. (a) Can the Minister confirm that Kenya lacks a legal framework for dealing with IDPs. […] While national policy on the prevention of internal there are coordinating organs for dealing with emer- 4.4. Policy Adoption displacement and the protection and assis- gency situations, it is now imperative to put the 4.3. Policy Formulation tance to Internally Displaced Persons, despite problem of IDPs on a sound statutory footing where Since it is the prerogative of the Government to the presence of thousands of IDPs and the fast- lines of authority and responsibilities are assigned. The Kenya scenario became quite interesting implement policies, any advocacy for their review approaching General Elections? There is no reason why such an enactment can not when it came to policy formulation. While the or improvement must ultimately be adopted by (b) Could the Minister appraise the House on the be put in place within the next four months.68 Executive was working on the broader policy, the the Government before being operationalised. status of approval of the said policy as well as Legislature came into the picture focusing on leg- The draft IDP Policy was approved by the Cabinet the status of IDPs resettlement? From the assessment carried out by civil society islation through an act of Parliament. CSOs im- 70 and the MoSSP is currently working on a ses- (c) What steps is the Minister taking to fast-track actors at the time, a specific policy and legislation mediately saw a risk for two parallel processes to sional paper which may be subjected to debate in the formulation, approval and implementation on internal displacement could greatly improve develop and sought to reconcile them by playing a Parliament depending on the advice of the Attor- of the policy? the protection of IDPs in Kenya. This view was bridging role between the executive and the legis- ney-General. In contrast, the IDP Bill was passed confirmed by all respondents interviewed for this lature. They managed, to a great extent, to ensure by Parliament and received presidential assent on To these questions, the Minister responded: study. that the content of the resulting legislation re- 31st December 2012. mained compatible with the content of the broad- “I wish to confirm that Kenya lacks a national pol- er policy. Efforts by the Executive to adopt the policy have icy on the prevention of Internally Displaced Per- 4.2. Policy Choices been slow. Through the PWGID, CSOs have con- sons (IDPs). In recognition of this gap, we prepared From 2007, the PWGID had been actively involved tinued to lobby the relevant actors to speed up a Cabinet Memorandum in May, which we circu- Having identified the issue, civil society actors in the process of drafting the broader policy in this process, including by proposing questions to lated to various stakeholders. Last month, we got a had to make choices among various policy options. partnership with MoSSP and other actors. Later, MoSSP through Parliament in an effort to hold it response. We hope that in the next one or two weeks, First they had to choose between developing an it also partnered with the PSC to draft and review accountable to the process. The PWGID has also it will be able to reach the Cabinet level.” IDP-specific framework and incorporating pro- the content of the IDP Bill, thereby ensuring that played a key role in furthering the adoption of the
18 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 19 Chapter 4: The Role of Civil Society
Further, during a workshop in July 2012 in Mom- 4.5. Policy Implementation outside the Government have a significant role to cannot be overemphasised. A bottom-up approach basa with the Parliamentary Labour and Social play in the process. The extent to which CSOs par- would have ensured a higher degree of local own- Welfare Departmental Committee, to which the Although the broader policy framework for the ticipate in the process depends on the existence ership. Concerns about the lack of meaningful par- IDP Bill had been committed after its first reading protection of IDPs is still pending adoption before and strength of civil society. Kenya has a long his- ticipation by IDPs in the process continue to linger in Parliament, the PWGID developed a press state- the cabinet, CSOs are already strategising on ways tory of civil society action which has over the years as the only involvement was by the victims of the ment which was issued jointly with the Parliamen- in which to support the implementation of this benefited from strong outside support and gained 2007/2008 violence and, even then, most of the tary Committee and called upon actors to make new legislation. The PWGID is developing strate- in experience. In the policy development process victims were from Eldoret and Nakuru. Addition- commitments to the process of developing an ef- gies to work with the MoSSP to create awareness in Kenya, CSOs enjoyed a good relationship with ally, where there was participation by IDPs, most fective policy and legal framework for the protec- among stakeholders on the policy, and discussions various arms of the government and this greatly special groups like women, the elderly and persons tion of IDPs. This statement was followed by a let- have started on how to support MoSSP in devel- advanced their participation in the process. They with disability were not represented. ter to the President, the Prime Minister, the Vice oping regulations for the proposed IDP Act and to played a key role in gathering and analysing infor- President, the Speaker of the National Assembly, lobby for the establishment of the various institu- mation and through consultations managed to cast A few factors might have contributed to the ben- the Attorney General, the Chairman of the Com- tions created by the law, including an early-warn- debate on the policy in an objective way. In fact, eficiaries’ limited participation. First, the for- mission for the Implementation of the Constitu- ing system as well as financial arrangements. substantial credit for any success from the process mulation process for the broader policy and the tion, the Minister for Special Programmes and is owed to CSOs for their aggressive approach in- legislation were owned by the executive and the the Minister for Justice to urgently make commit- cluding initiating contact with government actors. legislature respectively and the PWGID only came ments towards establishing a policy framework 4.6. Policy Evaluation in to support them. Second, and specifically relat- for the protection of IDPs. This memorandum was Conversely, CSOs’ participation in the process ed to the development of the legislation, the PSC later developed into a press statement whose issu- The protection of IDPs imposes obligations on could bring with it a number of downsides. Not had a very short timeline within which to do its ance was timed to coincide with the Parliamenta- the state and other actors. An effective policy im- all civil society actors take part in such processes work and as such it was not possible to have exten- ry debate on the IDP Bill. Following the workshop plementation evaluation set-up is therefore nec- and so the agenda might be solely driven by a few sive consultations including public hearings for in July 2012 in Mombasa with the LWSC, several essary to ensure that the relevant obligations are vocal CSOs, in the present case the PWGID, and the bill. Third, the PSC and other actors involved MPs who had been part of the workshop supported met, that the necessary resources are allocated mostly in Nairobi. This could create perceptions in the process faced resource constraints in rela- the speedy adoption of the final report developed and that the standards of protection, including di- of the process lacking full ownership and might tion to wider participation and extensive consul- by the PSC and ultimately the IDP Bill. rect assistance, are adhered to. CSOs will play an pose challenges at the adoption and implementa- tations. important oversight role and will need to identify tion stages. For instance, some respondents inter- CSOs involved in the process also called for inter- strategies to hold the Government to account on viewed for the study regretted the lack of meaning- Those who were closely involved in the policy de- national actors to push forward the adoption of the the implementation of the policy but also to sup- ful participation in the process by the AG’s Office, velopment process argue that despite the failure to policy. For instance, the PWGID held a meeting port it in attempting to do so. members of the Cabinet Committee on Reset- actively involve all stakeholders, including IDPs, in with Prof. Chaloka Beyani, the Special Represent- tlement, Ministry of Lands, Ministry of Foreign the process, various actors were given opportuni- ative of the UN Secretary General on Internally In evaluating whether or not the policy itself has Affairs, Ministry of Local Government, National ties at different times to make their contribution. Displaced Persons, at the KNCHR offices in Nai- succeeded in addressing the concerns of IDPs, as- Cohesion and Integration Commission, host com- For instance, the PWGID engaged in an extensive robi on 21st September 201171 and his final report sessments and comparisons (of policy provisions munities, Kenya Red Cross, Office of the Higher consultative process that yielded the draft IDP made the Government of Kenya (through its Per- vis-a-vis actual needs) may be made through the Commissioner for Human Rights, UN Women, the policy whose provisions informed the content of manent Mission in Geneva) issue a statement dur- lens of transitional justice.73 A recent study pro- provincial administration and field-based stake- the Bill. Furthermore, the PSC conducted over the ing the Nineteenth Session of the Human Rights poses that victims of the post-election violence holders in the process. Indeed, in the Kenyan case, course of 2011 public hearings around the country Council. The statement read, in part: overwhelmingly request for access to livelihoods the realisation of the need for policy on internal regarding the concerns of IDPs. In addition, there as their reparative demand, signifying the impact displacement was first conceived by international was up-to-date sharing of information at different Kenya welcomes the report of the Special Rappor- of violence and displacement on the economic cir- actors,74 thereby raising concerns about “foreign” stages of the process, including reporting mecha- teur on the rights of internally displaced persons. cumstances of its victims. or “outside” influence. nisms between national and field-based actors and […] The Government has developed a national pol- through other communication channels like the icy on internally displaced persons. […] The policy It appears that the dominant role played by the PWGID mailing list. Despite attempts to encour- provides for the protection and assistance of IDPs 4.7. Participatory Nature of CSOs in the policy development process in Kenya age the participation of stakeholders, the process and also aims to prevent future displacements. the Policy Development has also overshadowed the need for participa- became increasingly confined to the Advocacy Most important, the policy allows for the review of Process tion by the intended beneficiaries of the policy. Sub-group of the PWGID during the review of the existing laws to deal with impunity. The laws will Granted, levels of participation may vary based policy documents. ensure that those who contribute to the displace- Policy development is the work of State (execu- on knowledge and expertise, but the need for ben- ment of others are made to account.72 tive, judiciary and legislature) yet other actors eficiaries to optimally participate in the process
20 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 21 Chapter 4: The Role of Civil Society
Chapter 5: Milestones in Developing Navigating through a Tough the IDP Policy: Political Environment
• The need for a policy was identified during a • PWGID prepared a Cabinet Memo between Allowing IDPs to vote in areas where they have been 5.1.1. Post-election violence 2007 workshop held for national and internation- December 2010 and February 2011. The resettled will encourage the use of options for a dura- al stakeholders in March and April 2007. Memo was submitted to the Minister of ble solution as a political tool to influence local politics Arguably, the violence that erupted after the elec- MoSSP on 16th March 2011. through strategic relocations. If that is the position in tions in 2007 marked the turning point in efforts • The need to develop a policy was agreed the IDP Bill, then I will make sure that the bill never to deal with internal displacement. The violence upon during the National Stakeholders Fo- • Further discussions with respect to the pol- sees the light of day in the house.75 came to a close after a National Dialogue and Rec- rum held in Nairobi on 30th and 31st July icy were held with PSC, MoSSP and PWGID onciliation Process that resulted in the formation 2009. MoJNCCA and ASWG were tasked to at Pangoni Hotel in Mombasa on 30th Sep- Policymaking closely relates to the politics of the of a coalition government and a comprehensive provide leadership. tember- 1st October 2011; 4-6 December 2011 jurisdiction in which it takes place. This is because reform agenda designed to resolve the political and 29-30 July 2012. policymaking involves building consensus or estab- crisis and its root causes.76 The comprehensive • In October 2009, MoJNCCA agreed to spear- lishing cooperation among various actors within the reform agenda provided a context for calls to the head the process following a meeting be- • On 18th July 2012, ASWG, MoSSP and Lands political field. The interaction between advocacy Government to respond to internal displacement tween ASWG and Prof. Walter Kälin, UN-SR Ministry revised the draft policy to comply work and politics contributes to the quality of the re- and provided a basis upon which discussions on on IDPs. with the Land Act 2011, Land Registration sulting policies and determines to a great extent their a policy framework for IDPs began. The PWGID Act, 2012 and National Land Commission durability by either hindering or facilitating their im- used this context to call upon the President and • Preparatory work on policy drafting was ini- Act, 2012. plementation. The Kenyan experience in developing the Prime Minister to establish a comprehensive tiated between August and December 2009. the IDP policy framework provides a rich case study framework for the protection of IDPs, since the The actual drafting took place between Jan- • On 14th September 2012, MoSSP Minister of how political factors affect policymaking. four agendas developed through the reconciliation uary and February 2010. confirmed that the Minister of Lands had process were to be implemented within a period signed the IDP Policy with a few recommen- of one year from 28th February 2008.77 While the • Prof. Kälin seconded his legal adviser on IDP dations. 5.1. Sensitivity of the Topic of post-election violence acted as catalyst for advo- protection to advise and support the drafting Internal Displacement in cacy work on the protection of IDPs, in some in- in January 2010. • The Cabinet approved the IDP Policy on 25th Kenya stances it acted as a distorting factor by introduc- October 2012 and MoSSP is preparing a Ses- ing subjective standards and concentrating more • MoSSP took over the policy drafting process sional paper on the Policy which will be de- The recognition of the existence of IDPs in Kenya on displacement caused by the violence in 2007 to from MoJNCCA following a meeting with bated in Parliament for it to be approved as a has generally faced resistance from Government, the exclusion of other categories of IDPs. their PS, Prof. Kälin’s advisor and the AWSG National Policy. mainly because of its political and financial impli- on 13th January 2010. cations. IDPs are perceived to be a national shame and a reminder of the events of the 2007/2008 5.1.2. Ethnic Dimension • The draft policy was submitted to stakehold- post-election violence. Granting official recogni- ers for validation at a forum hosted by the tion of an IDP status implies providing resettle- Although the Constitution of Kenya characterises PWGID in Nairobi on 14th March 2010. ment, which in turns compounds already exist- the country as a multi-party democratic state, ethnic ing land problems. Consequently, when engaging affiliation plays a prominent role in national debates, • The policy was revised and adopted by with politicians on the subject of internal dis- where actors analyse situations through partisan MoSSP in April 2010. It was amended in Oc- placement, undue focus is often placed on what lenses. Discourses on internal displacement were tober and December 2010 in line with the this might demand of Government resources and assessed through this same lens, with the Parlia- new Constitution. how it might affect voting patterns if resettlement ment accusing the Executive of favouring particular were the prime solution for resolving the situation interest and ethnic groups in its interventions. This of IDPs. perception was compounded by the failure of the
22 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 23 Chapter 5: Navigating through a Tough Political Environment
Government to establish a transparent mechanism It had been hoped that the involvement of the 5.2.2. Private Member’s Bill extraneous factors. This could be an explanation for screening and profiling victims of displacement. MoSSP in the development of the IDP Bill would for minimal participation by government institu- In advocating for a policy framework on internal dis- hasten the adoption of the policy by the Cabinet The legislation on internal displacement in Kenya tions in the policymaking process. placement, therefore, the actors, mainly CSOs, knew so that both the broader policy and the legislation went to Parliament as a private member’s bill, i.e. that they had to construct a narrative that portrayed could be presented to Parliament together. In fact, a bill not sponsored by the Executive. While this internal displacement as a national problem that preliminary discussions during the validation fo- provided an expedient way to introduce a Bill on 5.3. Impact of Changes in the went beyond the violence in 2007. rum in December 2011 suggested that the MoSSP internal displacement to Parliament, it had to con- Political Scene since 2007 consider taking up the IDP Bill as a government- tend with one major shortcoming, which was that sponsored bill, giving effect to the draft Policy. This its financing arrangements would be able to draw 5.3.1. Implementation of the 2010 5.1.3. State responsibility for suggestion was however declined by the MoSSP contributions from the Government’s consoli- Constitution IDPs who proposed instead to support any MP that dated fund. In fact, this shortcoming dogged the moved the bill forward. Other executive branches Bill until the later stages of the legislative process, The promulgation of a new Constitution in Kenya While from a classical point of view, the State were also uncommitted to the policy development when the MoSSP introduced an amendment in thrust the country into a reform course with many bears the primary responsibility for the well-being process, failing to fully cooperate with the PSC by Parliament to include funds from the consolidated laws being enacted or revised to comply with the of its citizens, whether displaced or not, in Kenya defying summons to appear before it during its fund as one of the funding sources for activities Constitution. The Constitution has an elaborate the State generally viewed its responsibility to hearings. under the Bill. Bill of Rights and provides a broader context for ar- protect IDPs as a humanitarian one. Interventions guments for the responsibility of the government by the Government, including its resettlement ef- All along, the PSC remained sceptical of the Gov- Beyond the expedience of finding a faster avenue to protect IDPs. The need to adopt a rights-based forts (e.g. Operation “Rudi Nyumbani”), were not ernment’s commitment to adopt the policy. In its to introduce a legislation on internal displacement approach to the protection of IDPs in the Bill did open to scrutiny and criticised for being arbitrary. deliberations with the PWGID and bilateral dis- to Parliament, moving it through a parliamentar- raise too much controversy as the Constitution al- This erroneous approach by the Government may cussions with the MoSSP, the PSC noted that since ian who is neither at the forefront of either the ready provided for this broader framework. In fact, explain the haphazard and uncommitted way in the draft policy was yet to receive cabinet approval, Government or the opposition served to insulate one question that repeatedly came up for consid- which the Government continued to deal with the it would not base its recommendations to Parlia- it from perceptions of bias as alleged against in- eration was whether the Constitution in itself did protection needs of displaced persons. ment on a policy whose adoption was uncertain. terventions by the Government. This provided not suffice for the protection of IDPs without hav- This position was made clear to the PWGID in an opportunity to look at the problem of internal ing to draft a specific legislation for them. a meeting with the PSC and SR-IDPs during the displacement as a national catastrophe whose im- 5.2. Institutional context SR-IDPs’ visit to Kenya in September 2011. At this pacts went beyond the 2007/2008 displacements It was expected that the implementation of the point, on the basis of its stakeholder consultations and not as a political campaign tool. Constitution would delay the enactment of the 5.2.1. Different Visions: and public hearings, the PSC had started drafting IDP Bill, as the Constitution requires Parliament The Executive versus an IDP Bill that would be submitted with its final to prioritise particular legislations. However, the Parliament report upon the expiry of its mandate in December 5.2.3. Engaging with Actors and sensitivity of the IDP question in Kenya, the immi- 2011. Managing Interests nence of the next general elections and the peace Advocacy towards the adoption of the draft pol- and reform agenda under the Kenya National Di- icy on internal displacement remained in limbo Within the executive itself, there appeared to be The multiplicity of actors in the policymaking pro- alogue and Reconciliation Accord following the for over a year after its submission to Cabinet in a silent tussle among various Ministries on the cess implied the existence of multiple and varied post-election violence, together with concerted March 2011, without explanation or recourse in provisions of the broader policy, particularly the interests. While Kenya has fairly well-developed advocacy by actors, appear to have made the en- the matter. One explanation could be the bureau- Ministries of Lands and Finance. Sometimes, of- governance institutions, the existence of numer- actment of the legislation a success despite a busy cratic processes of several Ministries considering ficers at different levels within particular Minis- ous personal or even institutional interests meant legislative calendar. the policy before collectively endorsing it. The PSC tries appeared to operate at cross purposes and in that success in engagement could only be obtained presented the PWGID advocacy sub-group with conflict with each other, making engagement with through informal and sometimes personal inter- an alternative avenue for developing legislation the MoSSP difficult. A large number of interlocu- actions. This was a challenge that required actors on internal displacement. Although efforts by the tors also remained largely invisible, yet had control to rely on personal contacts from previous inter- PWGID ensured that the content of the resultant over the policy development and slowed down the action with parliamentarians and government legislation remained in line with the terms of the process at different stages. Their invisibility or the officials. The government officers (including Par- broader policy, it was not able to fully merge the two lack of clear guidelines on what their role was made liament) tasked with the protection for IDPs also processes run by the executive and the legislature, direct engagement with them difficult. appeared to lack a good understanding of the pro- and the Bill was enacted on 3rd October 2012. It re- tection context for IDPs. Most of the time, their mains to be seen when the policy will be adopted. level of involvement was therefore determined by
24 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 25 Chapter 5: Navigating through a Tough Political Environment
5.3.2. Proceedings at the International Criminal Court Milestones in Developing Four prominent Kenyans,78 half of whom are pres- idential aspirants, face an assortment of charges the IDP Bill: before the International Criminal Court arising from the 2007/2008 violence. These prosecutions have been viewed as an additional avenue for se- curing justice for various persons affected by the • Parliament constituted the PSC on 17th No- • The SR-IDPs conducted a country visit to violence, including IDPs. The prosecutions ap- vember 2010 with the mandate to examine Kenya in September 2011 and had a meeting pear to have contributed to an understanding of government action on displacement and the with the PSC and PWGID. The PSC shared displacement as a criminal human rights viola- relevant laws governing the same. its preliminary findings and indicated that tion warranting response through a policy. The it had prepared an initial draft legislation on establishment of a policy framework on internal • The PSC convened a Strategic Planning internal displacement. displacement could also be seen as an indication Workshop in February 2011 where govern- of commitment by the Government to justice. Al- ment ministries and the PWGID offered per- • PWGID and PSC convened a workshop in though the executive continues to waver in its ef- spectives on the key concerns regarding in- October 2011 to review the initial draft leg- forts to adopt the broader policy, it would however ternal displacement. islation. The meeting resolved to establish a be quick to point out the enactment of the Bill as joint taskforce that would review the draft part of its record of reforms. This aspect could pro- • PWGID convened a workshop to discuss the legislation and ensure consistency with the vide an explanation for the enthusiasm of the Ex- state of internal displacement in May 2011, draft IDP policy, Guiding Principles and ecutive through MoSSP in supporting the IDP Bill which was attended by the PSC and by gov- Kampala Convention. during its later stages in Parliament. ernment ministries, the SR-IDPs, the Chair- man of the ECOSOCC political affairs cluster • The PWGID and PSC convened a validation and civil society organisations. The meeting workshop in December 2011 to consider and 5.3.3. Upcoming Elections agreed on the following: to advocate for the approve the reviewed draft legislation from adoption of the draft IDP Policy and ratifica- the PWGID-PSC taskforce. The PSC and While the policy on internal displacement is tion of the Kampala Convention; that a law MoSSP approved the draft and resolved to meant to deal with all kinds of displacement, the on prevention, protection and assistance of support its enactment in Parliament. 2007/2008 violence remains a crucial reference IDPs was required; and that monitoring and point for discussions on internal displacement. multi-stakeholder information-sharing on • The PSC tabled its final report before Par- The establishment of a framework for the protec- IDP concerns be maintained. liament in February 2012 and Hon. Ekwe tion of IDPs is perceived as a clear manifestation Ethuro tabled the IDP Bill before Parliament of recovery from violence and would act to mini- • The PSC conducted bilateral meetings with in April 2012. mise the possibility of violence while laying out a the Minister of State for Special Programmes protection mechanism should violence occur. The and the Minister of State for Provincial Ad- • The Bill underwent its first reading on 13th upcoming presidential elections might therefore ministration and Internal Security. The PSC June, 2012; its second reading on 19th June, have acted as a catalyst for a speedy enactment of also consulted the Truth, Justice and Recon- 20122 and its third reading in which it was the legislation on IDPs to deal with internal dis- ciliation Commission (TJRC). passed by Parliament on 4th October 2012. placement, which is seen as a national shame and failure. Success of the executive in responding to • The PSC conducted 26 public hearings and • The President assented to the IDP Bill on 31st internal displacement would also appear to take field visits around the country between December 2012. cognisance of this. March and October 2011 to gain further in- sights on the plight of IDPs in Kenya.
26 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 27 cess was initiated by CSOs, who managed to bring 6.1.5. Adapting International Chapter 6: different branches of the government on board. Standards to Local The government institutions that were part of the Conditions Lessons Learned and advocacy work included the KNCHR, MoSSP, Mo- JNCCA, Provincial Administration and the legis- In drafting the IDP Policy and Bill, actors in Kenya Recommendations lature. greatly borrowed from protection standards con- tained in international instruments for the pro- MoSSP and MoJNCCA participated in the pro- tection of IDPs. The policies relied on the Guid- cess of developing the broader policy on internal ing Principles, the Great Lakes IDP Protocol, the Although the policy development in Kenya has support through its Early Recovery Coordina- displacement. Provincial Administrators par- Kampala Convention and other human rights not reached the penultimate stage in its policy de- tion Mechanism activities in the 11 countries that ticipated in the field-based working groups as instruments. These international and regional velopment process, its experience provides a rich make up the Great Lakes Region, it is conceivable the chair, while KNCHR was part of the national norms and standards provided a useful guide for case study with lessons that could inspire other that other countries in the region could borrow PWGID which it also chaired. Parliament played a dealing with the protection of IDPs. However, in advocacy work. This chapter discusses a number the structure of the PWGID, adjust it to their local major role in calling upon the executive arm of the adopting the universal standards, care must be of factors that contributed to the success of these needs and use it to coordinate activities on the pro- Government to give account of its efforts to pro- taken to confirm their suitability to local circum- efforts. tection of IDPs including development of policy. tect IDPs and ultimately passed the legislation on stances. For instance, the definition of an IDP as internal displacement. All these institutions will contained in the Kenyan policy makes reference to remain relevant as the policies move to the imple- politically-instigated violence or inter-communal 6.1. Lessons Learned 6.1.3. Resource Mobilisation mentation stage. hostilities, natural disasters and development pro- jects, which are recognised as some of the causes 6.1.1. A Critical Mass of Policy development work requires financial re- While the Government would be expected to ini- of displacement in Kenya. Local Actors sources in order to succeed. These could go to- tiate contact with CSOs in policy development, in wards various activities that include meetings, some instances CSOs must be proactive especially Policy development work does not occur in an ab- It cannot be taken for granted that all countries forums for lobbying and general logistical support. where the Government remains hesitant to act. stract or hypothetical setting. It will relate to real have a critical mass of local and national civil soci- While the PWGID provided a mechanism for co- Different government offices take part in the pol- contexts which influence its course. It would be ety actors with the capacity to engage in advocacy ordinating advocacy work, many challenges arose icy development process for different reasons and important for any person engaged in policymak- work. The Kenyan situation illustrates the amount when it came to resource mobilisation for joint ac- it may well be possible to take advantage of rivalry ing to fully appreciate environmental factors and of dedication that policy development work re- tivities. All the activities were financed by CSOs, between the different arms and strategically use it develop strategies on how to deal with or take quires. Although the advocacy work was carried with Government departments providing minimal to bolster advocacy. By partnering with the PSC, advantage of them. In the Kenyan case, actors re- out under the umbrella of the PWGID, in reality financial support to the process. Furthermore, not the PWGID was able to secure a draft Bill when mained attuned to the sensitivity of internal dis- its success derives from the commitment of par- all organisations contributed equally to the pro- the executive arm continued to remain equivocal placement and set out to develop a narrative of ticular non-state actors in the process. Without a cess, and it was often difficult for them to mobilise on its commitment to protecting IDPs through internal displacement as a human rights violation critical mass of organisations with the mandate to resources on an ad-hoc basis for activities that had the adoption of the draft Policy. In addition, ac- warranting a national response. Further, the local engage in a long term perspective, these advocacy not been planned in their respective annual plans. tors used the Legislature to hold the Executive ac- context would also determine the way in which efforts may not have reached the same results. countable for failure to fully protect IDPs. countries adopt international standards and if need be, countries should feel free to apply stand- 6.1.4. Involvement of Depending on the extent and nature of govern- ards higher than those stipulated in international 6.1.2. Coordination of the Government ment involvement in the process, other non-state frameworks. Advocacy Work actors should clearly conceptualise their role in a Policymaking is a government function and as way that facilitates the process. Sometimes this The cluster system provided an effective mecha- such non-state actors may only take part in it in- could even involve initiation and leadership of the 6.1.6. Creation and Utilisation nism for coordinating interventions towards sofar as the Government organs permit them. process as it happened in Kenya. of Networks and Personal IDP protection. This coordination mecha- Even where policy reforms are being championed Contacts nism ensured that advocacy work on the policy by CSOs, it is imperative to seek official endorse- was informed by accurate information on the ment. This endorsement would be crucial at later The extent to which CSOs take part in the policy- status of IDPs in Kenya. Key partners among the stages of adopting and implementing the policy making process depends on their ability to engage PWGID regularly published and undertook stud- and would give the resulting policy a measure of with different actors within the Government. To ies on the status of IDPs.79 Given that UNOCHA legitimacy. In Kenya, the policy development pro- this end, CSOs need to have useful contacts within
28 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 29 Chapter 6: Lessons Learned and Recommendations
official circles to be able to effectively influence weakness in the Kenyan case. Other actors con- ders a sense of detachment from the issues and en- Recommendation 6: policy work. In the Kenyan case, partnership with templating engagement in policy development courages objectivity, it also gives the process addi- The coordination mechanism must ensure the the Government under the PWGID facilitated ac- should understand the role of each stakeholder tional political weight depending on the profile of participation of all relevant stakeholders to the ex- cess to information, for example on Government and ensure that they are given adequate facilities the external persons involved. Their participation tent necessary and feasible. plans. Additionally, the various organisations un- to meaningfully participate in the process. enriches the process with a comparative angle. Ex- der the PWGID brought together a comprehensive ternal expertise would however be in vain unless Recommendation 7: network of contacts. Through RCK, for instance, there exist local capacities to match and temper its Develop a budget for the whole policy development the PWGID had access to a number of actors who 6.1.9. Institutional Weaknesses application to local issues and problems. The PW- process and establish a mechanism for mobilising significantly supported the policy development and Capacity Building GID provides a rich blend of local expertise that resources that would ensure equitable sharing of process ranging from parliamentarians to minis- for Actors includes lawyers, social scientists, drafters and burdens among the actors involved in the process. ters and government officials. communication specialists among others. The Government, as the primary duty-bearer, One often presumes the existence of capacity in should take part in these efforts. governmental departments, allowing officers to 6.1.7. Timing initiate and formulate policies to respond to vari- 6.2. Recommendations to Recommendation 8: ous issues that fall within these departments. The Countries Wishing to Policies are governance guidelines and as such all The policy development process should be strate- Kenyan experience shows that various actors Engage in the Process of relevant Ministries and other government depart- gically timed. Proper timing allows the process to including government departments and officers Developing a Policy on ments should play an active part in their imple- take advantage of environmental and political fac- may sometimes lack the technical capacity to di- Internal Displacement mentation. Their participation would enrich the tors to aid its progress. Poor timing of the process agnose problems and design policies to respond to process with practical perspectives about possi- would either make it move slowly or even under- them. Recognising this, the PWGID embarked on Recommendation 1: bilities and constraints within the executive. mine relevant identification of issues, policy op- capacity-building initiatives targeting key actors Map out and identify key organisations with strate- tions and formulation. Most of these events may to enhance their participation in the policymaking gic interests in displacement issues. Categorise them Recommendation 9: not directly relate to the policymaking process and process. A number of workshops were organised by the nature of their mandates to develop a strategy Considering the extent of resources invested in may in fact be driven by other independent fac- with Parliament, CSOs and Ministries. As such, that will ensure long-term planning and engagement. developing policies, once adopted, the govern- tors. In the Kenyan case, the 2007/2008 violence any strategy for policymaking should contemplate ments must support their implementation. enhanced perceptions that time was ripe for a weaknesses and gaps within official policymaking Recommendation 2: policy and this enriched the process with a sense systems and work towards their reinforcement. Establish a coordination mechanism with a clear Recommendation 10: of urgency together with the upcoming elections. structure and secretariat to manage its affairs. Where Government is involved in the process, it Promulgation of the Constitution in 2010 also set should make it clear which departments hold what a higher standard of state responsibility. 6.1.10. Flexibility, Concessions Recommendation 3: mandate in the protection of IDPs. Where the Gov- and Compromises The relevant Ministry should house the coordina- ernment is not involved in the process to a mean- tion mechanism as it serves as an easy entry point ingful extent, the involved actors should try and 6.1.8. Inclusion and Policymaking entails a great deal of choice and for most actors. However, this would depend on the understand how the bureaucracy works. Participation concessions. These concessions vary in benefits, level of involvement and support for the process by costs and risks yet it may sometimes be difficult the Government. Recommendation 11: Broad-based participation in policymaking en- or even impossible to develop a consensus on par- The AU and the ICGLR should provide technical sures popular acceptance of the resulting product ticular policy options. In such instances and with Recommendation 4: support to countries seeking to establish mecha- and promotes its ownership, which in turn makes a comprehensive understanding of the available Clearly categorise objectives in the short, medium nisms for the protection of IDPs that respond to its implementation easier. In addition, depending policy options, a compromise would be advisable and long-term and develop implementation strate- country-specific issues and contexts, rather than on the nature and profile of the persons or actors and a thorough knowledge of the implications of gies for their achievement including timelines. push for a universal process and instrument for involved in the process, participation ensures that any concessions is necessary. domesticating international standards. the resulting policy takes a practical approach to Recommendation 5: the issues under consideration. In Kenya, the pro- The coordination mechanism should have mecha- Recommendation 12: cess benefited from participation from the field as 6.1.11. Local and External nisms for ensuring commitment, regular and con- There is a need to adopt and implement comple- well as national and international level involve- expertise sistent participation and accountability by its mem- mentary policy and legal frameworks which have ment. However, all these actors did not take part bers, or a monitoring and evaluation component to its a bearing on the protection and provision of assis- in the process to the same extent and the partici- Involvement of external expertise plays a crucial terms of reference which would be used to evaluate tance to IDPs. pation of IDPs was marginal. This was clearly a role in the policymaking process. While it engen- the performance of the group.
30 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 31 Chapter 6: Lessons Learned and Recommendations
Recommendation 13: Actors in the policymaking process, state and non- state actors, must ensure to map out all key actors, mark their role in the process and establish a use- Appendices ful network to facilitate their work. Sometimes lobbying will require informal contacts with influ- ential actors. A: Questionnaire 10. What are the major achievements, lessons and Recommendation 14: challenges realized in the IDPs policy devel- Capacity building initiatives should target both 1: Policy Development Process opment process so far? What are your recom- state and non-state actors 1. What do you see as the major issues on IDP pro- mendations towards addressing these chal- tection in Kenya? lenges? Recommendation 15: 2. Is your organization part of the PWGID and To enhance long-term learning, the policy devel- what role does it play in the protection of IDPs? Section 2: Drafting of the Bill opment process should be documented. Docu- 3. (For respondents whose organizations are not 11. Was/ Is there need for legislation on IDPs in mentation would also help during implementation part of the PWGID). Has your organization Kenya? and review of the policy. been involved in responding to the situation of Yes [ ] No [ ] IDPs in Kenya? (Please elaborate) Recommendation 16: Yes [ ] No [ ] 12. How has your organization involved in its de- Policymaking involves choices and as such actors If yes, what has been the nature of this involve- velopment process? should contemplate all the policy choices: costs, ment? 13. Has there been a harmonized approach to pro- risks and benefits. This analysis is important dur- 4. What are the major achievements, lessons and cesses of developing the draft IDP Policy and ing negotiations on particular policy options to be challenges realized in working within these IDP Bill? included in the policy. groups? What are your recommendations to- Yes [ ] No [ ] wards addressing these challenges? What has been the impact of this 5. What is the justification for a policy on protec- harmonisation/ lack of harmonisation? tion of IDPs in Kenya? 14. Do you think the development of the Bill was 6. How has your organization been involved in the informed by the national, regional and inter- policy development process? national frameworks and contexts on protec- 7. Do you think the policy development process tion of IDPs? was informed by the national, regional and in- Yes [ ] No [ ] ternational frameworks and contexts on pro- (Please cite any such relevant frameworks tection of IDPs? or elaborate) Yes [ ] No [ ] 15. Please rate the IDP Bill drafting process in line (Please cite any such relevant frameworks or with the following (Select one): elaborate) a) Non-participatory 8. Please rate the IDP policy development process b) Fairly participatory in line with the following (Select one): c) Fully participatory a) Non-participatory 16. Were IDPs active participants in this process? b) Fairly participatory Yes [ ] No [ ] c) Fully participatory (Please elaborate the extent of their 9. Were IDPs active participants in this process? participation or non-participation) Yes [ ] No [ ] 17. What are the major achievements, lessons and (Please elaborate the extent of their challenges realized in the development of the participation/ non-participation) Bill so far? What are your recommendations towards addressing these challenges?
32 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 33 General Issues 6. What is RCK’s strength in advocacy? How did 18. Did the participation of external actors like it manage to successfully lead these advocacy the UN Special Representative on the Human initiatives? Rights of IDPs, and other consultants in the 7. What political obstacles did you come across Bibliography development of the policy and Bill on IDPs in- in your advocacy work on a policy framework fluence the processes in any way? on IDPs? How did you overcome them? Yes [ ] No [ ] 8. What strategies do you intend to employ in (Please elaborate) supporting or ensuring that: 1. British Council, MoJNCCA and PeaceNet Ken- C2D6322766F7B1802570BA00529A80/$file/ 19. What do you see as the next phases of engage- a. The policy on IDPs is adopted ya (2011) Conflict Mapping: An Insider’s Per- Kenya%20-November%202004.pdf> on April ment in the development of the Policy and b. The implementation of the IDP Bill once spective. A Report on National Conflict Mapping 30, 2012. Bill? Can you propose a framework or process assented to for the Active Citizens Programme, accessed on 12. Government of Kenya (2009) Report of the of adoption/ enactment, implementation/ en- c. There is constructive monitoring and evalu- http://reliefweb.int/sites/reliefweb.int/files/re Prime Minister’s Task Force on the Conserva- forcement and M/E/ feedback? ation of the implementation process of the sources/9916B6A8B2BA70558525784E00744 tion of the Mau Forests Complex. 20. Any other comments or observation in regard policy and the Bill C6C-Full_Report.pdf on April 30, 2012. 13. “Internal Displacement in Kenya: Report on the to above issues? 2. Brookings Institution, ‘Addressing Internal Dis- Workshop for Civil Society Organisations organ- placement: A Framework for National Responsi- ised jointly by the UN Office for the Coordination bility’, April 2005. of Humanitarian Affairs (OCHA-Kenya) and B. Supplementary Questionnaire 3. Brookings Institution, ‘Protecting Internally the Internal Displacement Monitoring Centre Displaced Persons: A Manual for Law and Poli- (IDMC); Nairobi, Kenya, 30 March 2007”. 1. To what extent and in what ways do you see the cymakers’, October, 2008. 14. Intermediate Technology Development Group result of this study informing and influencing 4. Brookings-LSE Project on Internal Displace- (2003), “Conflict in Northern Kenya: A Focus regional initiatives to develop frameworks for ment available at http://www.brookings.edu/ on the Internally Displaced Conflict Victims in the protection of IDPs? What particular is- about/projects/idp/laws-and-policies/africa- Northern Kenya”, accessed at 34 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 35 21. KHRC (2011), “Gains and Gaps: A Status Report 37. Saverio Krätli and Jermy Swift Institute of De- on IDPs in Kenya 2008-2010”. velopment Studies University of Sussex, UK 22. KHRC, 2009, Kenya IDPs Protection Cluster, (1999) Understanding and Managing Pastoral “Concept Paper: Legal Aid Working Group on In- Conflict in Kenya for a comprehensive profile Footnotes ternal Displacement”. on pastoral conflict, accessed at http://www. 23. KNCHR, KHRC and RCK, Draft National Policy eldis.org/fulltext/pastconf.pdf on April 30, on Internal Displacement: Simplified Version, 2012. 2011, Nairobi. 38. The Annotated Agenda and Timetable for the 1. In this report, Great Lakes Region refers to the 11 coun- Integrity, Report for the United Nations Environment 24. LASWG, “Concept Paper on IDPs Stakeholders Kenya National Dialogue and Reconciliation, tries that participated in the International Conference on Programme, October 2007; See Prisca Kamungi and Forum, April 2009”. available on the Kenya National Dialogue and the Great Lakes Region and ratified the Great Lakes Pact: Jacqueline Klopp, ‘The Challenges of Protecting the 25. Ministry of State for Special Programmes: Pro- Reconciliation website at http://www.dia- Angola, Burundi, Central African Republic, Republic of Internally Displaced through IC/GLR’ paper presented gress on Resettlement of Internally Displaced loguekenya.org/. Congo, Democratic Republic of Congo, Kenya, Uganda, at the conference on ‘International Conference on The Persons as at 6th January, 2012. 39. The Commission of Inquiry on the Post Elec- Rwanda, Sudan, Tanzania and Zambia. Great Lakes Region: Progress, Challenges and Opportuni- 26. Mohamed Ali Baadi and Others v. The Attorney tions Violence [CIPEV (2008)], Final Report of 2. President Assents Eight Bills, accessed at 36 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 37 phonce Gari, “Attackers ferried to Tana Delta, says NSIS” 28. “Forest Evictees Still Waiting Three Years On” Avail- placement Monitoring Centre (IDMC); Nairobi, Kenya, 49. The legislation borrows from the UN Guiding Principles, in The Star, Monday, 27th August 2012, p. 6). able on 38 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 39 for the implementation of government programmes at the women, children and older members in the society. local level and the police who play a key role in ensuring 68. Government of Kenya (2008) The Commission of Inquiry the security of IDPs. into Post-Election Violence Report, p. 293-294 59. UNCHR, RCK, IOM,UNICEF, OHCHR, INCOUNTRY 69. Examples include the three workshops in Mombasa with NETWORK OF PSEA, KNCHR, GENDER COMMIS- members of the PSC, PWGID and LSWC; stakeholder SION, UNFPA, OCHA, “Protection Working Group in meetings with other thematic groups such as the child Internal Displacement (PWGID) report on protection protection actors. issues related to displacement as a result of drought in 70. Cabinet media brief, 25th October 2012, www.state- Turkana. A fact-finding mission report on the protection housekenya.go.ke. issues arising from drought-induced displacement in Ka- 71. UNHCR played a key role in coordinating this visit by kuma, Lokichoggio, Lodwar and Kitale” November 2011. Prof. Beyani and other key state and non-state actors in 60. It is important to note that there were, however, struc- the protection of IDPs in Kenya. tures to ensure sharing of information with field-based 72. Kenya: Human Rights Council; Nineteenth Session, actors which included reporting and monitoring mecha- Agenda Item 3: “Statement by Kenya on the Report of the nisms. In fact, KNCHR and the representative of the Of- Special Rapporteur on the Human Rights of Internally fice of the UN Special Rapporteur on IDPs participate in Displaced Persons, Chaloka Beyani”, pp 1-3. both the national and field based PWGID meetings. 73. “To Live as Other Kenyans Do”: A Study of the Reparative 61. However, it must be noted that the PWGID has mecha- Demands of the Kenyan Victims of Human Rights Abuses, nisms to facilitate reporting, information sharing and International Centre for Transitional Justice (July 2011). coordination with field actors which included represen- 74. It was the stakeholder forum organised by UNOCHA and tation of the field working group at the national level and IDMC in March 2007 that set the stage for discussions on similarly representation of the national working group at the need for a policy. the field level. 75. Sentiments of an MP during a workshop with the Labour 62. A good number of the organisations or individuals who and Social Welfare Committee in Mombasa in July 2012 founded the PWGID in January and February 2008 have to lobby for the adoption of the IDP Bill in Parliament. now moved on. This is either due to staff transition or lack This comment was made in relation to the rights of IDPs of interest (related to mandate or capacity) with the cur- to register and vote in places where they live during dis- rent phases of engagement with IDP issues. placement or after resettlement. 63. KHRC (2011) “Gains and Gaps: A Status Report on IDPs in 76. The process was brokered by a Panel of Eminent African Kenya 2008-2010” p. 13. Personalities under the chairmanship of Mr. Koffi Annan 64. A series of consultative meetings took place between with four agenda: 1) Immediate Action to Stop Violence March and June 2011. A concept note to inform the pro- and Restore Fundamental Rights and Liabilities; 2) Im- cess was developed with a view to: developing an authen- mediate Measures to Address the Humanitarian Crisis, tic and comprehensive database reflecting the different Promote Reconciliation, Healing and Restoration; 3) How categories of PEV IDPs, ascertaining the beneficiaries of to Overcome the Current Political Crisis; and 4) Long- support programmes being offered and the programmes term Issues and Solutions See the Annotated Agenda and in particular they have benefited from; and developing Timetable for the Kenya National Dialogue and Reconcili- guidelines for the sustainable management and updating ation, available on the Kenya National Dialogue and Rec- of an IDP database (MoSSP and PWGID, “Concept Note onciliation website at http://www.dialoguekenya.com/. of the Verification of IDPs Database, May 2012). 77. Agenda 1,2 and 3 were supposed to be achieved between 7 65. These included forest evictees, squatters and persons dis- and 15 days from the commencement of dialogue; agenda placed by other factors before 2007. 4 was to be achieved within one year from 28th February 66. “A Tale of Force, Threats and Lies: ‘Operation Rudi Nyum- 2012, See the Annotated Agenda and Timetable for the bani’ in Perspective”- Kenya Human Rights Commission Kenya National (KHRC), 28th October 2008. 78. Former Deputy Prime Minister Uhuru Kenyatta, former 67. FIDA-Kenya, CLAN Kenya and Help Age International Head of Public Service Francis Muthaura, Eldoret North were founding members of the PWGID. If they were ac- MP William Ruto and radio journalist Joshua Sang. tive, they could have helped in increasing the voices of 40 Behind the Scenes – Lessons Learnt from Developing a National Policy Framework on Internal Displacement in Kenya 41 RCK DRC Haki House, Ndemi Road Lower Kabete Road, off Muringa Road, Kilimani Ngecha Road Junction P. O. Box 25340 P. O. Box 14762 00603 Lavington, Nairobi, 00800 Westlands, Nairobi, Kenya Kenya Tel: +254 20 208 8060 / 208 8067 Tel: +254 20 418 04 03/4/5 Fax: +254 20 2088054 Email: [email protected] Offi ce Cell : +254 733 860 669 / 720 943 164 www.drc.dk Email : [email protected] www.rckkenya.org