People in Places Between Humanity, State, Law & Politics


Image by Frazer Macdonald Hay


It is hard to appreciate the scale and realities of the global refugee situation, most are unaware of the conditions refugees endure daily. Just over ten years ago, there are over 60,000,000 people around the world, displaced by “dirty wars” or “low intensity” wars (Agier, 2008 ), conflict or persecution. The highest amount since records began. An average of 42,500 people are forced from their homes each day, according to the U.N. refugee agency (UNHCR). Only 5% of the 60,000,000 refugees and displaced people find long term residencies each year. (UNHCR). At the beginning of 2022 – before the Ukraine crisis took shape (displacing approx 14 million)– more than 92 million people worldwide had been forced to flee their homes (concern worldwide 4th May 2022) .


Once displaced refugees find themselves in a curious transitional space, a hazardous threshold space between humanity, state, law and politics. A condition referred to by scholars as a ‘bare life’ underpinned by precarious conditions, perpetual dependency and social obscurity.


Bauman proposes that “having left behind his origin and been stripped of his former identities, the refugee is socially a ‘zombie’ whose spectral past survives in a world in which his symbolic capital does not count, and whose presence takes place in a condition of ‘social nakedness’ characterized by the lack of social definition, rights and responsibilities” (Bauman, 2002, p. 116). In other words, a condition that leaves the refugee vulnerable to cultural, structural and direct violence (Galtung) whilst scrambling for sanctuary. Buzi frames some of the terrible risks related to an unprotected quest for survival, explaining that “once someone is forced to leave their home, they are fifty times more likely to be trafficked, sexually assaulted, or die than settle in a safe and sustainable place” (Buzi, 2016). These beleaguered refugees have therefore become the “contemporary figures of the pariah” (Agier and Fernbach, 2011).


The much-publicised refugees who arrived on Europe’s shores, streets and railway stations are but a fraction of this growing global cohort of ‘forcibly displaced’ people. However, strangely, “they are the lucky few, the large majority live in large scale camps, some of which have existed for decades.


The world’s largest camp is Dadaab (which means ‘rocky hard place’ in the local dialect) in Kenya and the precarious residence of 300,000 manly Somali refugees who have fled the endless civil war there” (Rawlence, 2016). Located in the scrublands, halfway between the Somali border and the Kenyan town of Garissa, Dadaab has existed since 1991. If Dadaab were a city it would be Kenya’s third-largest, yet it is a non-place, a pseudo-city, a feature in the landscape you won’t see on the country’s maps (Agier, 2008 p44). Rawlence explains, “to the charity workers, Dadaab refugee camp is a humanitarian crisis; to the Kenyan government, a “nursery for terrorists”; to the western media, a dangerous no-go area; but to its half a million residents, their last resort” (Rawlence, 2016). In May 2016, Kenyan officials made the decision to close two of its largest camps of which Dadaab is one. With the camp’s imminent closure the refugees are preparing to be cast adrift yet again, thus amplifying their precarious position within a state of abandonment. According to Amnesty’s International Regional Director for East Africa Muthoni Wanyeki “this reckless decision by the Kenyan government is an abdication of its duty to protect the vulnerable and will put thousands of lives at risk.”


With Dadaab’s precarious situation in mind this article explores the impact following the declaration by the Kenyan government to close Dadaab refugee camp and potentially displace thousands of refugees thus aggravating an already desperate situation, we can clearly see the developing condition of ‘homo sacer’ (a biopolitical subject whose life is stripped of the cultural and political form (Diken 2004. p83) to re-establish a foothold in the modern world.


What is the notion of homo sacer? read below for an explanation in greater detail, breaking the theory down into important component parts and apply them to the situation in Kenya and other states, therefore reinforcing the impression that Dadaab’s refugees in particular, are perilously close to becoming the epitome of ‘homo sacer’ in a contemporary world.


Here is an introduction to Homo Sacer

Historically homo sacer (Latin for "the sacred man" or "the accursed man") was an enigmatic figure of early Roman rule (Agamben, 1998. p72). An individual judged to have committed a crime and cast adrift from society under certain legal conditions. “A figure of archaic Roman law, in which the character of sacredness is tied for the first time to a human life” (Agamben, 1998. p72). In 1995 the idea of homo sacer was resurrected from Roman antiquity by Italian political philosopher Giorgio Agamben in response to a perceived reduction of life to 'biopolitics'. According to Agamben, Sextus Pompeius Festus, a Roman grammarian in the 2nd century AD wrote, “the sacred man (homo sacer) is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide; in the first tribunitian law, in fact, it is noted that “if someone kills the one who is sacred according to the plebiscite, it will not be considered homicide.” This is why it is customary for a bad or impure man to be called sacred” (Agamben, 1998. p72).

Agamben began to develop this seemingly paradoxical notion of homo sacer (an outlaw within the law) in the lead up to his book ‘Homo Sacer: Sovereign Power and Bare Life’. He used his definitions to promote a theoretical purchase for exploring the implications of ‘being excluded from the rule of law itself, while being included at the same time’ (a condition of inclusive exclusion) whilst critiquing the biopolitical (power over life) ramifications to contemporary state mechanisms of power and politics (Foucault, 1990) (Schuilenburg, 2008).


Since the 90s Agamben’s theory of homo sacer has been interwoven throughout his twenty years of work, ending in his ninth and final volume ‘The Use of Bodies’ published March 2016 and celebrated by some as “an engaging and provocative body of work investigating the deepest foundations of Western politics and thought” (Stanford press, 2016). However it is fair to say that Agamben has divided opinion over the significance of homo sacer. To sympathetic scholars like Fiskesjö, Agamben chose to “resurrect this obscure figure of homo sacer, an ancient Roman form of outlaw interpreted as bare life, mainly for the purpose of rethinking and debating citizenship, exclusion, and the ruse of the ‘rule of law’ in the modern Western state form” (Fiskesjö, 2012. p161). Yet to others like Kotsko, Agamben’s work has inherent weaknesses explaining that in his opinion, “a striking feature of Agamben’s work is its tendency to leap immediately from the tiniest detail to the broadest possible generalization. In Homo Sacer, for instance, we learn that the entire history of Western political thought was always heading toward the horrors of totalitarianism, as we can tell by taking a look at an obscure corner of ancient Roman law” (Kotsko, 2016). Although Agamben’s work isn’t without its critics, his literature does highlight the growing ‘bio political’ nature of modern life (Murray, 2010 p56), helping to inform a healthy governmental critique and useful in revealing alternative ways to interpret the modern day use of sovereign power and politics. Therefore, drawing light to serious humanitarian issues and exposing potential flaws within mainstream policies.


Therefore Agamben’s homo sacer, as a the metaphorical figure caught in a perpetual state of transition, simultaneously living a politically excluded life yet ironically, an included one too, has been a useful tool in the past for scholars and politicians who wish to highlight the global refugee crises and the conditions resulting from the “compassionate repression” of displaced people who continually remain in a precarious “state of exception” as speechless agents at the mercy of sovereign power. (Simich and Andermann, 2014 p150).



How might we see Homo Sacer seen in the contemporary world

The idea of drawing attention to the plight of refugees, detainees or concentration camp victims by borrowing the metaphor of Agamben’s homo sacer is not a new one as Kotsko explains, “many critics of the War on Terror, including Judith Butler, have used Agamben’s terminology to mount a kind of moral critique of American foreign policy” (Kotsko, 2016). However prior to the situation in Kenya this year, the analogy made between the current refugee crises and homo sacer, has felt tenuous and unconvincing at times, perhaps muddied by Agamben’s apparent love of paradox or a marked tendency towards conceptual abstraction but primarily it stems from Agamben’s opening description of homo sacer and its validity in a modern context. Kotsko points out that “rather than exploring how much the concept of the sacredness of human life has changed, he (Agamben) argues that the old meaning still stands: “the state that respects the sacredness of human life is actually a machine that threatens to turn every one of us into a defenceless homo sacer.” (Kotsko, 2016). Although the classicist Michèle Lowrie argues that, “the explanatory power of homo sacer resides not in its historicity, but in its being good to think with” (Lowrie, 2015. P 32-3) (Fiskesjö, 2012). Either way, to see homo sacer in the contemporary world, the basic profile should clearly fit the subject. In Agamben’s introduction to homo sacer he promotes an ancient Roman figure, judged on account of a crime, striped of political identity and forced to live a bare life existence in a state of exception ‘inclusively excluded’ (Agamben, 1998). However, in the past, it has been difficult to apply the theory and draw a clear and confident parallel between homo sacer and the refugee. There are two main reasons for this;

Firstly homo sacer, as Agamben suggests was “judged on account of a crime”. However, refugees are deemed to be within the law and can legitimately seek asylum under the Geneva Convention and the 1948 Universal Declaration of Human Rights (UNHCR - Legal Publications, 2016) which state, “everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Universal Declaration of Human Rights, Article 14(1). Moreover, regardless of their legal rights to seek asylum, the refugees are not displaced due to any particular crime committed on their part but are displaced due to their desire to avoid persecution. In fact, the United Nations defines a refugee as "any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country" (UNHCR - Legal Publications, 2016).


Secondly, according to Agamben homo sacer was “stripped of a political life” (Murray, 2010 p64). However refugees, especially refugees within the confines of an established camp display a wide range of political and social currency, expressing themselves architecturally, economically and ethnically. Agier explains “the camp can be described in terms identical to those used today to describe towns – heterogeneity, complexity, gathering ……. in fact we see repeatedly how, over time camps create opportunities for encounter, exchange and the reworking of identity for those who live in them” (Agier and Fernbach, 2011 p134)This is supported by a report by ALNAP explaining that Dadaab for example “brings in around $14 million into the surrounding community”. (Danida - Danish International Development Assistance, Government of Norway, 2010. P9). In fact Kilian Kleinschmidt, one of the world's leading authorities on humanitarian aid goes so far as to say "The average stay today in a camp is 17 years. That's a generation" and that "these are the cities of tomorrow" (Radford, 2015).

However, since the announced closure of Dadaab in May 2016, the difficulty to draw confident parallels between homo sacer and the refugee has changed. The Kenyan Interior Minister, Joseph Nkaissery, believing the camp to be a base for weapon smuggling and recruitment for the terror group Al-Shabaab has given notice that the Dadaab refugee camp is to be closed, explaining that “for reasons of pressing national security that speak to the safety of Kenyans in a context of terrorist and criminal activities, the government of the Republic of Kenya has commenced the exercise of closing Dadaab refugee complex. Refugees will be repatriated to their countries of origin or to third-party countries for resettlement” (Mutiga and Graham-Harrison, 2016). Therefore it appears, whether directly or by association the Dadaab refugees due to their connection to terrorist activity, like homo sacer, they too have been “judged on account of a crime”. Moreover, with the camps closure, the refugees stand to lose their social and politic currency. The state will have stripped the refugees of all housing, social and financial support. Thus engaging in, as Darling suggests “an ‘Agambenian’ sovereign act of abandonment which places individuals outside the law, for their situation is seen to have fully exhausted the normal remits of legal proceedings, no matter how flawed such proceedings may have been” (Darling, 2009). By closing the camp the refugees will have been abandoned, striped of political agency, displaced, expelled and unable to return safely to a forgotten and dangerous home which they initially elected to escape from. Miyat Chang, a refugee from Dadaab expresses his fears to CNN news, "we all came here because home was dangerous for our life," he said. "I cannot go back to South Sudan, even if they force me" (Kriel, 2016). Mohammad Abdula, goes on to explain that it is about more than the war. "I don't have a farm, my family lost everything in the war, I know nothing about Somalia," he says. "The only government I know is UNHCR." (Swails and McKenzie, 2015). Kate Allen, the director of Amnesty International UK agrees. She explains that “the current humanitarian situation in Somalia and South Sudan remains dire and fragile. Somalia is faced with drought and other security risks that are likely to see an increase in displacement and vulnerability.” She believes “forcing them back to violence and persecution is as immoral as it is unlawful, and risks increasing instability and displacement in the region” (Kriel, 2016).

Consequently, since the change in the circumstance relating to the forthcoming closure of Kenyan camps, there is a compelling argument to be made, that these refugees from Dadaab in particular, represent homo sacer in a modern world. To explore this argument further it is important to examine the rest of Agamben’s profile for homo sacer (an ancient Roman figure, judged on account of a crime, striped of political identity and forced to existence within a state of exception, which is ‘inclusively excluded’ (Agamben, 1998).




What do I understand to be: Bare Life in a State of exception

Unpicking Agamben’s profile of homo sacer further, it is important to explain the idea of ‘bare life’ and the implications related to a ‘state of exception’. Once these have been explained the results can be applied to the argument that Dadaab refugees can be seen as homo sacer in a contemporary world.


Agamben states that, “the refugee is included while being excluded and excluded while being included; this zone of indistinction between inclusion and exclusion, in which the life of the refugee borders on the life of the homo sacer, is the very place of sovereignty, which is why the fundamental categorical pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoë/bios, exclusion/inclusion” (Agamben, 1998, p. 8).


Agamben’s definition of ‘bare life’ represents one of the corner stone elements in his theory of homo sacer which Sussman explains as “an adaptation of Aristotle’s and Hannah Arendt’s distinctions between biological existence (zoë) and the political life of speech and action (bios)” (Sussman and Ziarek, 2012). Dickinson explains that for Agamben, “bare life represents zoë, or life as being creaturely opposed to bios, life as it is lived properly by an individual or group in relation to others” (Dickinson, 2011.p67) and in-between zoë and bios, Agamben positions homo sacer, stripped from political meaning, forced to a ‘bare life’, which exposes them to a brutal existence. For Gündoğdu this clearly links homo sacer to bare life and modern biopolitics, explaining that “bare life then, is neither simple natural life of zoë nor politically qualified life of bios; rather it is the life produced as a result of sovereign decisions regarding what is distinctively human” (Gündoğdu, 2011). Lemke simplifies this by suggesting that “while even criminals could claim certain legal guarantees and formal procedures, this “sacred man” was completely unprotected and reduced to mere physical existence, since he or she was ascribed a status beyond human and divine law, homo sacer became some kind of “living dead”. (Lemke, 2005). However it is in Dickinson’s book ‘Agamben and theology’ we begin to see the significance Agamben gives the idea of ‘bare life’ according to its humanitarian relevance in modern politics, albeit within a western context. “According to Agamben western political traditions have split life into two categories, zoë (the biological fact of having life - animals and mankind all have zoë) and bios (political or collective life). For Agamben this process leads to a production of ‘bare life’, an in-between of the two categories that marks the limit point of politics. In doing so Agamben calls into question the very principles of western democracy, a critique which only gained in power in the light of the ‘War on Terror’ and the emergence of biopolitical practices and ‘spaces of exception’ in Guantanamo Bay” (Dickinson, 2011. p67) .


The final pivotal element to address in Agamben’s profile of homo sacer is the condition created by “the state of exception” which began as a concept in legal theory by German philosopher Carl Schmitt, It has been used in reference to a condition comparable to a state of emergency, but founded in the state's ability to go beyond the rule of law in the name of the public interest. However, Agamben employs the ‘state of exception’ to investigate how the suspension of laws within a ‘state of emergency’ or crisis, can become a prolonged state of being. “Agamben explores this theory through the idea of the camp, as that space which is “opened when the state of exception begins to become the rule. In the camp, the state of exception...is now given a permanent spatial arrangement, which as such nevertheless remains outside the normal order'' (Agamben1998, pages 168&169). The camp represents the point at which the exception becomes a spatialized rule, and simultaneously expresses the relation of sovereign abandonment that characterises the position of the homo sacer” (Diken, 2004; Darling, 2009). According to Murray, “homo sacer is the ‘human victim’ who is captured in the sovereign ban” (Murray, 2010. P65), a figure caught in the state of being left on the threshold between ‘inside and outside’ the law.

The Dadaab camp is clearly the manifestation of Kenya’s state of exception, a threshold space inside but outside the rule of law. A massive temporary structure built 25 years ago to contain refugees, separating them from the country’s citizens in a transitional state of precarity, ‘a condition of not quite, not yet’, not quite homeless, not yet deported or detained, ‘teetering on the edge’ with very limited recourse for legal protection (Banki, 2013; Standing 2011, 20). The camp walls are built from twigs cut from surrounding shrubs and refugees survive by “living in tents made of plastic sheeting distributed by the UNHCR, and eating food distributed by the World Food Programme. It has been a life of acronyms, monotonous rations, and dependency on humanitarian aid, confined to a few kilometres square in the middle of the desert” (Gouby, 2015). Dadaab’s environment is kept in a state of controlled impermanence, with movement in and out strictly regulated as Mohdin explains, “the refugees are not allowed to leave the camp unless they receive a special pass, there are no jobs—only volunteer positions—and spots in higher education in the camp are fiercely contested. The UN isn’t able to build permanent structures because the Kenyan government forbids it, water still comes from temporary taps and food is still bussed in (Mohdin, 2016). An impermanence condition programmed by daily international aid which acts as the camp chronometer reducing even time to a state of abandonment as Agier suggests, “Aid organisations under police escort regulate the day - “0730hrs a procession arrives in the camps amid a cloud of dust left by four-wheel drive vehicles, announcing the daily beginning of international assistance” (Agier, 2008 p47).

The camp is officially managed by the Kenyan police force, reinforcing the camp’s exclusion from the state but paradoxically ensuring it falls within the management of the state too. The Kenyan government uses the police force to manage security and logistics under UNHCR supervision, addressing the so called “local problems of women being raped in the surrounding bush when they go to collect wood for cooking and theft in camp” (Agier, 2008 p46). However, it could be argued that the key role of the police force is to keep order and ensure the refugees’ subjugation and obedience within the compound walls. Rawlence reports that, ‘Policemen with sticks and machine guns’ marched up and down keeping the ‘clients’, as they were called, seated, docile, and ready to be corralled through the system (Rawlence, 2016).


Seemingly reduced to a mere physical presence the refugees in Dadaab live a ‘bare life’ existence or as Agier calls it a “Minimal Life under transfusion” (Agier, 2008 p45). In other words, the refugees are forced into a state of zoë and assigned to a situation of ‘perpetual dependency’ as they are “placed both beyond a legal right to challenge such exclusion and political right to question this status itself” (Darling, 2009). A desperate situation where, for example, “women line up, one at a time, in front of distribution sheds, their UNHCR ration cards hanging from their necks,” collecting strict weekly portions measured to the bare essential 1,900 calories per day, per person (Agier, 2008 p45), whilst they and their families wait years in the vain hope that their applications for resettlement or integration are addressed. As the refugees are stripped from political meaning thus reduced to bare life, these non-citizens become vulnerable to exploitation and abuse by citizens without fear of legal repercussions. According to local sources interviewed by Human Rights Watch, “The Kenyan police refer to Somalis as ‘mbuzi’ or goats, because goats are valuable” (Human Rights Watch, 2010), the Somali refugees who were interviewed continue to explained that rape, physical assault and extortion are common practice in and around Dadaab. One of the Somali woman shares her experience, “suddenly we saw ten Kenyan police officers. They had long guns and were wearing green uniforms. When they saw us they shot in the air. Everybody started running, but I had my baby so I could not run. Three of them stopped me. I told them I had a 12-day-old baby and asked them to leave me alone. They ignored me and one of them kicked me on the right side. I fell over with my baby. Then he raped me, with my baby on the ground close by. Then one of the other two men raped me. The third man stood close by. When they finished, they let me go. I grabbed my baby and ran after the others”. These terrible events stress the cruel nature within and around the context of a ‘camp in exception’ as Agamben explains “whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporally act as sovereign” (Agamben, 1998. p174).

The refugees therefore fit the profile of homo sacer, they live a bare life existence within a camp, “a socio-spatial mechanisms that immobilize asylum seekers in non-places” (Diken, 2004). A space on the threshold of both inside and outside the law, which represents the reality of sovereign abandonment. The refugees are harassed and victimised seen only as zoë devoid of bios and therefore targeted with little legal recourse.



Conclusion

This exploration argues that following the announcement by Kenyan authorities to close Dadaab refugee camp (a decision made on the basis that it represents a national security threat due to its apparent links to the Al Shabaab terror network), thousands of Somali refugees will be displaced, aggravating an already desperate situation to a point where a comparison can be made between Agamben’s homo sacer and the refugees.


We examined the notion of homo sacer in relative detail and surfaced the key elements to Agamben’s concept. Whilst applying these elements to the situation in Kenya, the text tried to address proposed weaknesses in relation to comparisons made between the refugee and homo sacer in the past. I have suggested that Dadaab refugee camp is similar to others worldwide, in that the camp represents a threshold environment sat both inside and outside the law, and signifies the practicalities of sovereign abandonment. However, unlike other refugee camp residents,


Dadaab refugees have faced further displacement for 6 years with three generations of precarious habitation, unable to return to their so-called lands of origin, judged on account of a crime and reduced to live a bare life existence.


Therefore, I conclude that the refugees from Dadaab, on closure of the camp, can be seen as homo sacer in the contemporary world and in doing so acknowledges the potential in Agamben’s idea of homo sacer, as a vehicle to draw widespread attention to the desperate plight of the refugee. Sacer, as a vehicle to draw widespread attention to the desperate plight of the refugee.


Article by Frazer Macdonald Hay:

Kenya | Hunger Crisis 2021-2022 - Appeal No: MDRKE049 - Operational Strategy