Question on legality of soldiers in street lingers

The Gazette Notice announcing the deployment of Kenya Defense Forces personnel to assist police restore order in the wake of Tuesday’s unprecedented events across Kenya raises political, legal and constitutional questions.

Defense Cabinet Secretary Aden Duale cites Article 241 of the Constitution of Kenya and Sections 31,33 and 34 of the Kenya Defense Forces Act 2012 that permits such a deployment, to defend his nocturnal gazette notice of June 25 2024.

Wednesday’s hurried approval of the deployment by the National Assembly was intended to cure the requirement at Article 241 (b) and (c) that provides that such deployment of the military within the national territory must be approved by the National Assembly.

The approval of the deployment, made in closed session, also violated the Assembly’s Standing Orders, hence the Constitution of Kenya because the issue was slotted on the Order Paper just hours for debate, as an afterthought, before approval of the House Business Committee (of Parliament) which last sat on Tuesday morning.

But the approval does not solve other pertinent questions including whether the gazette notice ought to have been published by the president as the Commander-in-Chief of the Kenya Defense Forces. There is an unsolved question of whether the powers donated to the CS in the Act to publish the gazette amount to deploy, hence, command of the military violates the express provision of the Constitution.

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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, 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.

In one section, the 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 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 per Article 58 of the Constitution. Articles 58 and 241 envisage deployment of the military internally during “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 and neither does the statute determine whether the Defense Council in which the Defense CS (but not the president) sits can declare an emergency or order deployment of forces without the concurrence of the president, who 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 Defense Council.

If the president, purported to delegate such power to the CS or Defense Council, including when seeking the Assembly’s approval he ought to have done so in a signed and sealed document as required by law. 

-David Ochami is a journalist and advocate of the High Court