KENYAN IDPs ARE ENTITLED TO HUMANITARIAN RELIEF, NOT COMPENSATION.

Whereas government officials have ruled out compensation to the victims of the post-election that rocked Kenya in January and February this year, the issue refuses to fade away. But are they right? The cardinal responsibility of protecting the life and property of the citizens rests with the state. Consequently, the state enjoys the monopoly of the use of force of violence and is vested with the power and authority to procure and manufacture arms and other articles of war. Under International Human Rights and Humanitarian Law, states are obligated to compensate victims of their own breaches under Article 148 of the Geneva Convention and the Protocols additional thereto. The claimant must however demonstrate that his loss was occasioned by an act or omission attributable to the state under international law and which is a transgression of an international responsibility by the state.

The issue of compensation or restitution for refugees and IDPs is even more complex where people get displaced or lose their property due to religious, ethnic or political violence. This usually occurs when armed groups defy the rule of law, engage in extensive violence and make it impractical for the state to defend the rights of its citizens. Most of the victims of the post-election violence in Kenya fall under this category. They are victims of a well orchestrated, highly choreographed political adventurism by wayward leaders who exploited ethnic apprehensions as a basis for political mobilisation and competition. The IDPs cannot accuse the organs of the state of any direct violation of an international or municipal law obligation, on which a legal action can be founded against the state under the law of torts (civil law). They may also not be in a position to identify with certainty the person(s) who occasioned loss to them.

Whereas the IDPs may not have a legal basis to seek compensation or restitution under the law of torts, they are nevertheless entitled to state protection under International Humanitarian Law. The government of Kenya is under an international obligation to ensure that they are resettled back to their properties. The state also has a responsibility to assist them to reintegrate back to society, improve their living conditions, resist evictions and affirm their civil and political rights.

The state has been careful with the choice of words and has so far only offered to grant them relief on humanitarian basis through the Government Financial Management (Humanitarian Fund for Mitigation of Effects and Resettlement of Victims of Post-Election Violence) Regulations, 2008. These rules which were enacted by the Hon. Amos Kimunya, the Minister of Finance, pursuant to section 26 of the Government Financial Management Act, 2004, were not even necessary in the first place. The state’s responsibility to assist victims of natural and human disasters is not premised on legalise alone, but rather on a higher norm, the law of basic morality. No law can be applied to force people to contribute towards the relief efforts or to stifle the right of refugees and IDPs to humanitarian relief. Any such law is bereft of basic moral content and lacks the force of legitimacy to elicit voluntary compliance from the citizens. People willingly contribute towards relief efforts due to a compulsive desire to help others which is an inherent instinct for self preservation in every human being. Humanitarian relief as opposed to legal compensation is the better phrase for the support that IDPs are seeking from the government. The media should use the correct phrase to avoid creating unnecessary tension.