GARISSA – Garissa High Court has reinstated an expert affidavit critical to addressing the rights of refugees in Kenya.
The affidavit, authored by refugee affairs expert Mr. Abiy Ashenafi, had been expunged from the court record earlier this year due to procedural delays in its filing.
The case, a consolidation of Constitutional Petitions E011 of 2022 and E001 of 2023, involves the Haki Na Sheria Initiative, along with individual petitioners, challenging the government on various constitutional grounds.
The petitioners argue that various government policies and administrative actions have violated constitutional rights, particularly those of refugees and stateless individuals in Kenya.
Central to the case is the plight of over 700,000 refugees in Kenyan camps.
The affidavit, dated June 30, 2023, was removed after being submitted without prior court approval and beyond the stipulated timelines. However, Mr. Ashenafi cited unforeseen family emergencies as the reason for the delay, explaining his absence from his Pretoria office.
In his ruling, Justice J.N. Onyiego emphasized the court’s responsibility to determine applications on merit, regardless of opposition or lack thereof.
He noted that the expert testimony was essential given the gravity of the issues at hand and the delay was neither deliberate nor avoidable.
“Considering the weight of this matter, requiring substantial research and expertise, and the unavoidable nature of the delay, the court finds no prejudice in granting the leave sought,” Justice Onyiego said in his judgement.
The court reinstated the affidavit, ensuring it would form part of the record in the ongoing case.
The Global Strategic Litigation Council for Refugee Rights, acting as amicus curiae, highlighted the broader implications of the case for international human rights norms.
Other interested parties, including the Katiba Institute, underscored the constitutional questions at play.
While the respondents did not oppose the application, they have previously argued that the expert report could be introduced through submissions rather than affidavits, citing procedural compliance.
Costs related to the application will be determined with the overall judgment.
Kenya hosts one of the largest refugee populations in Africa, and this case could have far-reaching implications for how the government balances national security, resource allocation, and humanitarian responsibilities.
