State repatriation of Kenyans abroad: What the law says

Law does not compel government to fund evacuations from conflict zones

Kenyans reacted with widespread outrage to the government's announcement that citizens in Middle Eastern and Russian war zones must cover their own travel costs back home.

Many viewed the directive, issued by Foreign Affairs and Diaspora CS Musalia Mudavadi on March 6, as insensitive and a failure of the state to fulfil its duty to protect citizens during a major crisis.

Critics, including former Attorney General Justin Muturi, demanded free evacuation, arguing that protecting citizens abroad is a constitutional obligation rather than a favour.

The government maintained it was "closely monitoring" the situation and coordinating through diplomatic missions, but its policy remains that those who can pay for their return should do so.

But is the government obligated by law to evacuate its citizens from conflict zones?

The answer is no. There is no explicit statutory law in Kenya mandating the automatic evacuation or repatriation of citizens from conflict zones abroad.

Repatriation is generally considered discretionary rather than a strict legal duty.

However, the Constitution and the Foreign Service Act 2021 authorises the government to protect the interests of Kenyans abroad.

The government fulfills this duty through diplomatic and voluntary measures, including urging citizens in conflict zones to leave but does not expressely pay for repatriation.

While many assume governments will evacuate their nationals in crises, international law imposes no clear obligation to do so.

Article 13(2) of the Universal Declaration of Human Rights recognises the right for everyone to return to their country and obligates governments to protect citizens from violence.

Article 5 of the Vienna Convention on Consular Relations grants states the right to assist nationals abroad but does not frame it as a duty.

Similarly, international human rights law does not establish a general right to repatriation. International humanitarian law also does not explicitly recognise a right for individuals to be repatriated by their home state during armed conflict.

Foreign nationals are expected to leave at the onset of conflict where possible, while governments, through consular missions, facilitate communication, liaise with local authorities and issue travel documents.

Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to leave any country, while Article 12(4) affirms that no one shall be arbitrarily denied entry into their own country. However, this does not translate into a duty for states to repatriate citizens.

However, where conflict poses a real and foreseeable risk to life, states are expected to act, particularly when citizens cannot leave safely on their own.

Special attention is given to children and families in detention camps, with governments encouraged to repatriate them to ensure safety and prevent statelessness.

In practice, repatriation is often driven by broader considerations. It is seen as a demonstration of state responsibility and concern for citizens, reinforcing domestic legitimacy.

In some cases, such as citizens in extremist-controlled areas, it is also treated as a security measure to mitigate risks of radicalisation and enable rehabilitation and reintegration.

International law, including the Geneva Convention, protects civilians in war and generally obligates states to readmit their citizens, but evacuation efforts depend on capacity and available resources.

Following the Middle East crisis, the Kenyan government advised citizens to leave conflict zones using commercial or repatriation flights at their own cost.

However, concerns were raised about the fate of the estimated 500,000 Kenyans in the region, particularly low-income workers who may be unable to afford travel or access safe routes.

The cost of repatriating that number is significant.

On Thursday, the State Department on Diaspora Affairs asked Parliament for an additional Sh400 million to evacuate distressed Kenyans from conflict-prone regions in the Middle East and those recruited into the Russia-Ukraine conflict.

Officials led by Ambassador Hellen Gichuhi told the National Assembly Committee on Defence, Intelligence and Foreign Affairs the funds are critical to support a structured evacuation programme targeting the most vulnerable.

They said the situation in parts of Russia, Iran and the United Arab Emirates has necessitated urgent interventions, but recent evacuations had strained resources.

“We are currently evacuating 15 Kenyans from Iran to Turkey. Among them are five children, who are being prioritised under our repatriation guidelines," Amb Gichuhi told the committee.

The Diaspora department emphasised that repatriation is not universal but guided by strict criteria.

“We prioritise the most vulnerable children and distressed persons. It is not feasible to repatriate all Kenyans abroad, especially considering that over 500,000 reside in the Middle East alone,” Amb Gichuhi added.