- The sections of the police service laws allow the President to deploy police officers to other countries that have good legal rapport with Kenya.
- Dr Aukot argues that the three laws are in conflict with Articles 240 and 243 of the Constitution.
Image: HANDOUT
A Nairobi court on Monday stopped on temporary basis the planned deployment of police officers to Haiti for peace keeping mission.
Justice Chacha Mwita stopped Interior Cabinet Secretary Kithure Kindiki from deploying the police until a case filed by Thirdway Alliance is heard.
“A conservatory order is hereby issued restraining the respondents from deploying police officers to Haiti or any other country until 24th October 2023,” read part of the order.
The judge also ordered that the pleadings be served on the respondents immediately and that the respondents do file responses to the petition within three days after service.
The petitioners will then have three days after service to file and serve a supplementary affidavit, if any, together with written submissions to the petition, not exceeding 10 pages.
Once served, the respondents will have three days to file and serve written submissions to the petition, also not exceeding 10 pages ahead of October 24 when new directions will be given.
The Thirdway Alliance party leader Dr Aukot sued President William Ruto and his administration in a bid to block the peacekeeping mission that will see the deployment of at least 1,000 police officers to the gang-ridden nation.
Dr Aukot filed a petition before the High Court on Friday, claiming that Kenya's bid to lead a UN-approved force into the Caribbean island nation is in gross violation of the constitution.
He faulted Ruto for planning to deploy police officers outside Kenya at a time the force has been unable to curb tribal violence in Lamu county, where members of one community have been targeted for death. He argued that Kenya has not ratified any law or treaty to allow deployment of police officers outside the country.
President Ruto has been listed as a respondent alongside the National Security Council, Inspector-General of Police Japhet Koome, Kindiki, National Assembly Speaker Moses Wetang'ula and Attorney-General Justin Muturi.
In his bid to block the deployment, Dr Aukot insists that the Haiti government has never requested Kenya for assistance in curbing gangs that have overrun the island nation and now control at least 75 per cent of its capital. Charles Midenga, Dr Aukot's lawyer, asked the court to suspend the Haiti mission pending hearing and determination of the case.
Midenga argued that deployment of police officers outside Kenya is a matter of great public interest hence the constitution and other supporting legislation has to be followed to the letter. Dr Aukot also asked the High Court to declare sections 107, 108 and 109 of the National Police Service Act unconstitutional, as they clash with the Constitution.
The sections of the police service laws allow the President to deploy police officers to other countries that have good legal rapport with Kenya. Dr Aukot argues that the three laws are in conflict with Articles 240 and 243 of the Constitution.
Article 240 gives authority to the National Security Council to deploy national forces outside the country. Article 243 establishes the National Police Service and gives it authority to operate throughout Kenya, while allowing Parliament to enact further laws to govern its enforcement. Dr Aukot holds that Article 243 restricts the work of police officers to within Kenya's borders.
"Haiti is not a 'reciprocating' country as per the definition provided in section 107 of the (NPS) Act. Even if Haiti was a reciprocating country, which is vehemently denied, Haiti has not made any application for deployment of Kenyan police service to their country and the deployment is based on a UN Security Council resolution passed on October 2, 2023, which in any case cannot supersede the provisions of the Constitution and the Act," Dr Aukot says in court papers.
"To the extent that sections 107, 108 and 109 of the (NPS) Act provide for deployment of the service under reciprocal arrangements with reciprocating countries, the said sections are unconstitutional since they offend Articles 240 (8) and 243 (3) of the Constitution."
The developments come as NPS has begun the selection process of officers to be deployed for the Haiti peace mission. For instance, each platoon officers from the General Service Unit is set to nominate two police constables and a corporal.Officers to be considered officials say must be aged between 20-55 years and have served in the service for a minimum of five years.
They must also not have more than two convictions with the last one not less than six months. Other than these, they should have a good proficiency in English, the ability to safely handle firearms and proven shooting skills.
Additionally, they must be mentally, physically and medically fit and capable of demonstrating clear command and control.The unit is also expected to nominate 35 drivers and eight mechanics under the specialist category.
Other specialists required for the mission are signallers, chaplains and counsellors and drone operators. To qualify under this category, one must be aged between 20-40 years and served for at least two years in service.Selected officers will converge at a camp for joint training ahead of the planned deployment in January.
The selection process follows the authorisation of a multinational security support to the Caribbean country by the United Nations Security Council last week.Other units of the Administration Police Service are also set to contribute.
Kenya intends to send more than 1,000 officers to the country for the mission to last for a year. UN Security Council said a review will be done after nine months.Some members of the Caribbean Community have also committed to supporting the mission.
MSS mission, UNSC member states observed, is an important step to help the Haitian National Police address the deteriorating security situation in their country. The US government has pledged Sh29 billion for the mission. Half of this amount is from the US Defence Department and is in the form of intelligence, airlifts, communications and medical assistance.
The plans are that after the team is picked up, they will vote to decide on which uniform they will adopt. Officers from formed units in the NPS will be the majority to be deployed to Haiti. More than 1,000 officers will be picked from the Rapid Deployment Unit, Anti Stock Theft Unit, General Service Unit and Border Patrol Unit to form a larger team for deployment with the exercise expected to happen in two month's time.
These officers have paramilitary training and are likely to work well with other personnel from countries that have agreed to send theirs to Haiti for the same mission. The personnel from the formed units have skills that can address the needs in Haiti, officials say.
They will be provided with a kit to use while in Haiti. RDU, ASTU and BPU are from APS while the GSU will also provide personnel from most likely the RECCE unit. Kenya will take the command and operations of the about 3,000 personnel.
Unlike a UN peacekeeping mission, where the blue-helmeted forces are under the control of the UN Department of Peace Operations, the multinational force in Haiti will be overseen by Kenya, although its forces are there with UN authorisation, which gives the intervention the backing of international law.
The selected team will converge at a camp for a brief joint training before they depart for the mission. At stake, is almost Sh29 billion that has been pledged by the US government to enable the mission to be successful.