• Traditionally, there was a tendency to think that the military was a law unto itself.
• The Kenya Defence Forces Act still says its members must not 'form, join, agitate or participate in the activities of trade unions or go on strike'.
The Daily Nation recently carried the story of a KDF soldier who served for a long time in Somalia and suffered from post-traumatic stress disorder to the extent of suffering from a mental breakdown.
When he returned to his unit after treatment, he was court-martialled for desertion. Fortunately, the High Court overturned that conviction.
Traditionally, there was a tendency to think that the military was a law unto itself. It ran its own justice systems free from supervision by the ordinary courts. And what armies did to their own people, and indeed what they did to others, especially in times and conditions of war, was below the radar of the ordinary court systems. There is even a Latin saying, Inter arma silent leges — in battle the law is silent.
There are good reasons for the military to have procedures that allow them to administer swift justice in combat conditions — clearly, an officer faced with insubordination, especially in battle conditions, can’t say, “Just wait till I get you back to an ordinary court.”
The Constitution in a number of ways makes it clear that the time for the military to be insulated from the law has passed. First, there is the national value of the rule of law, which includes the principle that everyone is subject to the law.
Second is the related human right: That everyone is equal before the law. The right to be free from torture and inhumane and degrading treatment and punishment also constrain the military. And, like the right to a fair trial, which would apply to a court-martial, these rights cannot be limited.
Finally, the Constitution specifically addresses the security services, “national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms.”
LIMITED RIGHTS OF A SOLDIER AGAINST THE MILITARY (AND GOVERNMENT)
Members of the Defence Forces are deprived by the Constitution of a few human rights. These are privacy, the freedoms of association, assembly, demonstration, picketing and petition, as well as economic and social rights (such as health, education, food and water) and the rights of arrested persons. The other is labour relations, which means fair remuneration, reasonable working conditions, joining a trade union and going on strike.
Even these exclusions seem largely unnecessary. All these rights can be limited by law, provided the law is reasonable and justified in a democratic society. This involves asking questions such as what was the purpose of this law limiting the right and could the purpose have been achieved without limiting the right, or without limiting it so much?
The purpose of this provision (Article 24) of the Constitution is to enable the courts to assess whether the limiting of a particular right is justified, taking account of things such as what job it applies to. So a limit on the rights of military officers might be justified whereas limiting the right of some other employees might not be.
The Kenya Defence Forces Act still says its members must not “form, join, agitate or participate in the activities of trade unions or go on strike”. Very probably, if this had gone to court, it would have held there is justification for preventing the military from going on strike.
It comes as no surprise to discover that this unthinking list of exclusions is to be laid at the door of the parliamentarians sitting in Naivasha who sat in judgment on the Committee of Experts’ second draft Constitution. And such a pity that the CoE did not have the guts to resist it.
What those MPs in Naivasha did was to prevent law limiting these rights for the military from being scrutinised by the courts. Yet for any other workers (such as those in health services which are prohibited from striking) the courts would have to apply the 'is this necessary?' test, and the government would have the responsibility of showing to the court that it was necessary. The MPs showed very little care for the people who risk their lives for the country.
Thus, though the soldier in the Daily Nation report had the right to a fair trial (and anyway the law allows the appeal to the High Court which led to his being acquitted) he has no right to health. So he could not use that to make a legal claim against the military for so dismally neglecting his mental health, as the newspaper described.
Justice Luka Kimaru commented, “That the Appellant saw it fit and appropriate to seek medical intervention from a traditional doctor from an illness that he got while serving this country is a bad reflection on how he was treated by his employer.”
ALL IS NOT LOST
I have been thinking not only of the soldiers who suffer PTSD, but also of those who have died in Somalia.
The MPs did not deprive soldiers of the right to be free from violence from any source, or the right to life. Clearly, it cannot be that every soldier who is injured in the battlefield can complain of a breach of that right. It would be ridiculous if every decision of military commanders reached under fire was liable to be challenged in the calm atmosphere of a court of law, years after the event.
But not every stupid decision that costs soldiers their lives is made under fire. A classic example is the unbelievably callous and inefficient supply of food and useless boots to the British troops fighting the Russians in the Crimean war in the 1850s. Clearly then, no one would have thought of legal liability to soldiers. But now?
If an employer sends workers to work with totally inadequate equipment or training, and the result is death or serious injury, the employer could be liable in law, using the same branch of law that applies in a road accident case — negligence. But it has always been understood that in the case of decisions made in combat, there is no liability.
A few years ago, the UK Supreme Court decided that the British Army could not rely on the combat situation rule in the case of some young soldiers posted to Iraq who had been killed or injured because of inadequate equipment or training. All the relevant decisions had been made out of combat situations. The court was also deciding that even in Iraq the British Army was bound by the European Convention on Human Rights and the right to life.
Could Kenyan soldiers equally argue that the Constitution is still their shield, even in Somalia (where no other government than the Kenyan could protect them, just as there was no government in Iraq to protect the British soldiers)? And could they argue that totally inept decisions, made not in combat situations, responsible for their injuries or loss of life, are not protected from legal liability?
A Kenyan Act of Parliament says no member of the armed forces could sue the government for anything he or she suffers because of the condition of any land, ship, or vehicle or any equipment or supplies (you might call it 'the Crimean War clause'!) But maybe this is also against the Constitution.
HOW ABOUT CIVILIANS?
Suppose Kenyan soldiers are responsible for mistreatment of foreigners? Again, killing people in the battle, at least when war has been declared, does not give rise to any legal liability.
But a British court held that when British soldiers detained an Iraqi in Iraq for no good reason and subjected him to inhuman and degrading treatment, he could claim compensation for breach of his human rights. Once the individual was under the control of the British forces, the Human Rights Act protected him.
So maybe also the behaviour of Kenyan forces overseas, against individuals they control — for example, because they have detained them — can also be judged by the standards of the Constitution.