Kenya: including protection against refoulement in anti-torture legislation
Article 21(2) of Kenya’s Prevention of Torture Act 2017 provides protection against refoulement stating that “[a]
person shall not be expelled, returned or extradited to another country where there is reason to believe that the
person is in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment.” Article
21(3) of this Act further provides that when determining whether such a risk exists “the Court shall take into
account all factors including the existence of a consistent pattern of gross, flagrant or mass violations of human
rights in the State seeking extradition of the person.”
NATIONAL PROCEDURES
In order to give effect to national constitutional or legislative provisions enshrining protection against refoulement,
States have put in place procedures to assess objections to being transferred or removed. States can decide on the
most appropriate domestic body, whether administrative or judicial in nature, to be responsible for assessing – in
the first instance – cases raising refoulement concerns under UNCAT.
Key questions for decision-makers
To determine whether the refoulement prohibition applies to a particular case, decision-makers need to take into
account all relevant and up-to-date information and consider inter alia:
• Is the danger of being tortured personal and present?
• What are the personal circumstances of the individual concerned? (Article 3(2), UNCAT)
• Is s/he a member of an at-risk group?
• Has s/he suffered torture in the past?
• Do the conditions in the country of removal include “a consistent pattern of gross, flagrant or mass violations
of human rights”? (Article 3(2), UNCAT)
Procedures checklist
The following features have been found to be helpful in ensuring that procedures tasked with determining
non‑refoulement claims are accessible, efficient and effective:
oo established in national law, including establishing procedural rights;
oo provide interpretation and information in a language or manner the individual
understands, and accommodate their particular circumstances, including disability,
health, age, gender and any other elements indicative of vulnerability;
oo examine each case individually and not collectively, through a personal,
confidential interview by a qualified, competent and trained official;
oo afford individuals an opportunity to submit evidence and arguments against their transfer
and allow sufficient time for the decision-maker to hear, review and assess the case;
oo operate on a non‑discriminatory basis;
oo suspend transfers until a final decision has been issued (see Appeals Procedures);
oo deliver a reasoned decision in writing, containing also information
on how any negative decision can be appealed.
TOOL: Non-refoulement procedures and safeguards
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