MPs’ okaying military deployment raises questions
The Kenya Gazette notice announcing plans to deploy Kenya Defense Forces personnel to help police restore order after Tuesday’s unprecedented events across Kenya raises political, legal and constitutional questions.
To defend his June 25 nocturnal notice, Defence Cabinet Secretary Aden Duale cites Article 241 of the Constitution and sections 31, 33 and 34 of the 2012 Kenya Defence Forces Act that permits such a deployment.
Wednesday’s hurried approval of the deployment by the National Assembly was intended to cure the requirement of Article 241 (b) and (c) that requires that such deployment of the military within the national borders be approved by the House.
The approval of the deployment, made in a closed session, also violated House Standing Orders, hence the Constitution, because the issue was slotted in the Order Paper for debate just the day before, as an afterthought, before it was approved by the Business Committee, which last sat on Tuesday morning. But the approval does not solve other pertinent questions, including whether the gazette notice should have been published by the President as the Commander-in-Chief of the KDF.
What is the legal effect of acts carried out by the military before the 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, between the Chief of Defense Forces and Inspector General of Police, assumes overall command and control of military contingents deployed alongside police to quell internal unrest and respond to an emergency.
One section of the KDF Act says the Inspector General of Police assumes command and control of integrated police and military units in internal operations but also declares that although soldiers deployed for civilian functions can do any legitimate police work, except investigations, they cannot be commanded by the National Police Service.
And it is unclear whether the military deployment should be preceded by the declaration of a state of emergency by the President per Article 58 of the Constitution. Articles 58 and 241 envisage the deployment of the military internally during an “emergency”, but it is not clear whether the emergency should be formally declared or communicated by the President in writing per Article 135.
In the absence of an open declaration of an emergency, it is assumed that none of the civil liberties described 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.
The Constitution and the KDF Act do not define what entails deployment and neither does the statute determine whether the Defence Council on which the Defence CS (but not the President) sits can declare an emergency or order deployment of forces without the concurrence of the President, who 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 Defence Council.
If the President purported to delegate such power, including when seeking House approval, he should have done so in a signed and sealed document as required by law.
The House Speaker should have satisfied himself that all these legal and constitutional steps were fulfilled before allowing such a sensitive deployment of forces.
The writer is a journalist and Advocate of the High Court living in Mombasa
