The Gazette Notice announcing deployment of Kenya Defence Forces assist police restore order in the wake of Tuesday’s unprecedented events across Kenya raises political, legal and constitutional questions.
Defence Cabinet Secretary Aden Duale cites Article 241 of the Constitution of Kenya and Sections 31, 33 and 34 of the Kenya Defence Forces Act 2012 that permits such a deployment, to defend his nocturnal, Gazette notice of June 25.
Wednesday’s hurried approval of the deployment by the National Assembly was intended to cure the requirement in Article 241 (b) and (c) that require the National Assembly to approve such deployment of the military within the national territory.
The approval of the deployment, made in closed session, also violated the Assembly’s Standing Orders, hence, the Constitution of Kenya. The reason is the issue was slotted on the Order Paper just yesterday(day?) morning for debate, as an afterthought. This was before approval of the House Business Committee (of Parliament) which last sat on Tuesday morning.
But the approval does not solve other pertinent issues, including whether the Gazette notice ought to have been published by the President as the Commander in Chief of the Kenya Defence Forces.
There is an unresolved question of whether the powers delegated to the CS in the Act to publish the Gazette amount to deployment. Thus command of the military violates the express provision of the Constitution.
What is the legal effect of acts conducted by the military prior to parliamentary approval or can they be validated after the fact of approval? Will Duale publish a fresh notice to effect the Assembly's approval?
The Act, itself fosters, more contradictions, including who - whether the Chief of Defence Forces or Inspector General of Police - assumes, overall command and control of military contingents. They are to be deployed alongside police to quell internal unrest and respond to an emergency. Who is in charge?
In one section, the Act, says the Inspector General of Police assumes command and control of integrated police and military units in internal operations. It also declares, however, that although soldiers deployed for civilian functions can do any legitimate police work, except investigations, they cannot be commanded by National Police Service.
And it is unclear from the emerging scenarios whether the deployment of the military ought to be preceded by the declaration of a state of emergency by the President as per Article 58 of the Constitution. Articles 58 and 241 envisage deployment of the military internally during an “emergency” but it is not clear whether the emergency ought to be formally declared or communicated by the President in writing per Article 135.
In the absence of an open declaration of emergency, it is assumed that none of the civil liberties in the constitution have been suspended, fully or in part and peoples’ rights, including media access and the right to picket any site where the military will be deployed, will be respected.
It remains to be seen whether the Kenyan military is well trained or doctrinally inclined to respect these liberties as it performs its functions within the civilian population.
The Constitution and the Act do not define what entails deployment. Further, the statute does the statute determine whether the Defence Council in which the Defence CS (but not the President) sits can declare an emergency or order deployment of forces without the concurrence of the President. Under Article 131 (1) is the Commander in Chief of the KDF.
In ordinary English, a deployment of military forces to perform specific military functions is equivalent to a command. A verbal or written command to the military can, legally and constitutionally, only emanate from their commander and under Kenyan law such authority cannot be delegated to a CS or to the Defence Council.
If the President, purported to delegate such power to the CS or Defence Council, including when seeking the Assembly’s approval, he ought to have done so in a signed and sealed document as required by law.
The Speaker of the National Assembly who sat in charge of the approval ought to have satisfied himself that all these legal and constitutional steps were fulfilled before allowing such a sensitive deployment of forces.
Clearly, the drafters of the Act overreached in arrogating unconstitutional power to deploy to the Defence CS instead of the president, through a statute.
Constitution Section 34 (2) says:
“Where the deployment of the Defence Forces in support of the National Police Service is approved as contemplated in Article 241(3) of the Constitution and section 33(1), the Cabinet Secretary shall, within twenty-four hours, issue a notice in the gazette of the commencement of such deployment.”
But Article 241 does not confer such powers on the CS for a good reason. The unconstitutional invention in Section 34 of the Act also violates all the President’s constitutional powers as the commander in chief of the military.
Meanwhile, in fulfilment of the requirements of the flawed Act, it is presumed Duale sought the approval of the Defence Council and the National Security Council before issuing the nocturnal notice.
And the search for approval by the National Assembly ought to have been accompanied by records to this effect, together with a specification by the National Security Council of where the military is to be deployed, together with guidelines by the Chief of Defence Forces and the Inspector General of Police on how the integrated operation is to be conducted.
Available evidence shows the only thing brought to the Assembly was Duale’s Gazette notice, which MPs approved in minutes.
The CS’s action and the Assembly’s seal of approval, together with the validity of aspects of the Act, can be challenged in court.
The difficult questions raised indicate the sensitivity of this matter and the trouble that arises when deploying a military solution to a political question. Historically, in Kenya integrated police and military units have barely, succeeded in solving the problems they are intended for.
The differences in training and bad blood between the two forces is well documented.
Deploying the military to police the civilian population is an admission of the Police Service failure, without addressing possible political reasons for such failure.
Historically, deploying the military to leave the barracks to police the civilian population has its own risks. Often when soldiers leave the barracks they tend not to go back. And when they return to the barracks, eventually, they tend to return to politics in different guises.
The Mombasa-based journalist is an advocate of the High Court of Kenya