BATUK training resumes despite deal standoff, 58 sexual abuse cases

British Army Training Unit in Kenya , BATUK has been shrowded with controiversies of the years. [File, Standard]

The scale of alleged sexual violations linked to British soldiers in Kenya has emerge as a fresh test of the country’s defense relationship with the United Kingdom, with police investigating 58 cases involving alleged rape and defilement.

The National Police Service told parliament that it is currently investigating one case of defilement, 20 cases of rape and 37 cases of gang rape allegedly involving British soldiers.

The revelations have raised questions over the operations of the British Army Training Unit (BATUK) particularly at a time when the renewalof the Kenya-UK Defence Cooperation Agreement (DCA) remains entangled in conditions issued by the National Assembly.

The parliamentary committee on Defence, Intelligence andForeign Relations said that the UK is yet to commit to implementing the conditions attached by parliament to the agreement.

The issue was brought to parliament by the committee’s chairpersonNelson Koech who said that the UK has consistently mandated that it would only consider Kenya’s proposed amendments after the agreement commences.

“The UK isyet to commit to anything in writing or the resolutions passed by this houseand has consistently urged that it shall only consider the amendments after the agreement has commenced,” MP Koech told the National Assembly on Thursday.

“Theratification of the DCA therefore remains in abeyance underscoring the need fora way forward through established diplomatic channels,” he added.

The National Assembly on April 12, 2023 approved ratification of the Kenya-UK DCA subject to amendments to Articles 6(5) and 23,which have been the cause of delaying the full legislative ratification of the military agreement governing BATUK operations as MPs withhold final approval until UK addresses legal accountability and community protection.

The two provisions are at the heart of Kenya’s concerns over accountability and the relationship between BATUK and communities hosting the British military training unit.

Article 6 deals with jurisdiction over offences involving visiting forces.

Parliament specifically demanded murder an amendment to Article6(5) to explicitly include murder other grave crimes in the list ofoffences under the primary criminal jurisdiction of Kenyan courts, alongsideoffences such as sexual offences, torture, inhuman or degrading treatment,transnational organised crime, slavery, national security offences and robbery.

The demand was partly informed by the unresolved murder of Kenyan woman Agnes Wanjiru, who was killed after visiting a hotel in Nanyuki where British soldiers were staying.

Parliament has previously demanded investigations into allegations surrounding her death and the extradition of British national Robert Parks, who has been linked to the case.

Article 23, meanwhile, requires BATUK to respect localcommunities, protect vulnerable persons, compensate for harm where liable andengage communities with Kenya’s consent and participation.

But the lawmakers want it strengthened by legally binding mandatory Corporate Social Responsibility obligations, clear compensation protocols for environmental or community harm, and strict protection measures for vulnerable local residents.

Nearly two weeks ago, Prime Cabinet Secretary and CS for Foreign Affairs Musalia Mudavadi announced that military training planned by BATUK would resume.

“The Government of Kenya welcomes the decision for the planned military training exercise at the British Army Training Unit Kenya to proceed,” Mudavadi said.

“This outcome reflects the strength of the longstanding partnership between Kenya and the United Kingdom, built overdecades on mutual respect, constructive engagement and a shared commitment topeace and security,” Mudavadi added.

Initially, UK’s Ministry of Defence on July 23announced plans to cancel the Haraka Storm exercise planned forSeptember-November this year as "the necessary licensees required to allowtraining to take place in Laikipia have not been forthcoming.”

However, the revelation by MP Koech that Kenya is yet to make a deal with Britain contradicts Mudavadi’s assertion, and raises questions of the legal and diplomatic basis BATUK is operating on.

Koech stated that there had been myriad meetings held and communication exchanges on the need toprioritize the rights of Kenyans and local communities affected by BATUK operationsbut the UK has been non-committal to the amendments.

“It's worthnoting that as of today, the concerns raised by this house regarding BATUK and the conditions attached to the commencement of this year are yet tobe fully addressed by the UK authorities,” Koech said in his statement to parliament on Thursday.

He was submittinga statement on the status of the Kenya-United Kingdom Defence CooperationAgreement and the step made to progress the House resolutions in the inquiry into the conduct of the BATUK.

“As acommittee, we have sought to directly confer with our UK counterparts without success. From the information so far obtained from junior officers and non-parliamentary delegations that are sought to meet over the matter, the UK is yet to commit toanything,” he added.

Last week, BATUK announced that they had completed a four-week Ex Range Sweep-a military operation to locate and clear unexplodedordnance (UXO) and hazardous debris from live-firing impact- in Archer’s PostTraining area to pave way for the Haraka Storm military training.

“Operating in extremely challenging terrain, the British Army and Kenya Defence Forces jointly cleared the main impact areas used for military training in Archer's Post,” read a post on BATUK’s X account.

“The team also trained communities living around the training area using inert, harmless examples of ordinances. They visited 24 schools to help students and other community members identify potential UXO and proper safety procedures to follow should they encounter suspicious items,” BATUK stated.

The development raises questions over the status of the DCA and the legal framework under which the British troops are currently operating.

Koech told the National Assembly that the previous five-yearDCA, ratified in 2016, had expired, prompting the Government to submit a newagreement to Parliament in September 2021.

He announced that the previous 12th Parliament did not complete consideration of the agreement before its term ended and it was subsequently resubmitted to the current Parliament in November 2022.

After public participation, the Defence, Intelligence and Foreign Relations Committee recommended that Parliament approve the agreements ubject to amendments to Articles 6(5) and 23.

The House eventually approved the agreement on April 12,2023, but with the reservations.

Koech said the conditions were intended to ensure that thelongstanding military partnership between Kenya and Britain was renewed on the basis of equality, respect for Kenyan law and accountability.

“Theproposed inclusion of murder in the list will reinforce accountability andlegal certainty for grave crime over which locals look to our courts foreffective justice,” Koech said.

Although Article 23 of the agreement requires BATUK to respect local communities, to protect vulnerable persons, to compensate for harm where liable, and engage with local communities only with Kenyan's consent and participation, Koech reported that the local communities in Lakipia County have repeatedly complained that they have been sidelined claiming that BATUK only develops infrastructure in its operational areas or ranches that are not fully locally owned.

“Since BATUK uses local infrastructure to access their operational areas, it would be fair to include meaningful CSR as a requirement in the agreement to maintain the goodwill of the host communities,” he added.

“The county government raised serious concern and stated that since the commencement of BATUK activities in the region, BATUK had committed several atrocities against the locals and the environment,” said the committee chair.

Koech said Parliament could not allow the DCA to be used to sanitise  grave criminal offences or lack of community engagement by visiting forces.

He argued that any murder committed by a foreign soldier on Kenyan soil could not be regarded as an act arising from official duty and should therefore fall under Kenyan jurisdiction.

The committee also pointed to the constitutional requirement that treaties entered into by Kenya must comply with the Constitution.

Under the Treaty Making and Ratification Act, Parliament cannot approve a treaty or part of it if its provisions are contrary to the Constitution.

He further emphasised that despite the binding agreements, the public also raised concerns over the manner in which previous DCAs were negotiated, claiming that they werenever consulted in the spirit of meaningful public participation as envisioned in the constitution.

Among other measures, the parliament called for accountability mechanisms to hold visiting soldiers accountable for child support.

The committee said they received claims concerning children allegedly fathered by foreign soldiers in Laikipia, Isiolo, Meru and Samburu counties,including allegations of abandonment.

“Whereas the partnership is a cornerstone of the defense and security priorities of our twocountries, it is sustenance ought to be within the parameters that safeguardthe dignity, rights and welfare of Kenyans,” Koech argued.

BATUK, based mainly in Nanyuki, Laikipia County, with a smaller presence in Kahawa, Nairobi, conducts advanced training for troops preparing for peacekeeping and stabilisation missions with Koech emphasising that its continued presence has for years been a source of both strategic military cooperation and controversy.

However, the parliamentary inquiry into the conduct of the UK military unit exposed atrocities committed by the unit including corruption, fraud, discrimination, abuse of power and other unethical behavior, allegations of human rights violations, including mistreatment, torture and lawful detention, killings and other violations of international recognized human rights standards.

He added that the National Police Service report on historical cases of violations and injustices committed by British troops adds insult to injury.

“Out of the many violations claimed to have occurred over the years on the people that were represented, including some who have died before attaining justice, the NPS is currently investigating one case of defilement, 20 cases of rape and 37 cases of gang rape by members of the visiting forces,” Koech stated.

He added that the Treaty Making Ratification Act expressly states that the national assemblyshall not approve the ratification of a treaty or part of it if its provisions are contrary to the constitution.

The lawalso prohibits the parliament to approve a reservation to a treaty or part ofit if that reservation negates any of the provisions of the Constitution, evenif the reservation is permitted under the relevant treaty.

“The rights of our citizens cannot be takenfor granted under the watch of this house. The position of the National Assembly therefore remains that DCA cannot be used to sanitize the commissionof grave criminal offenses or lack of community engagement by visiting forces,”said the MP.

“Any murdercommitted by a foreign soldier on Kenyan soil cannot be considered as something arising from official duty. Additionally, visiting forces must respect and mustbe sensitive to the traditions, customs and the culture of the localcommunities of the places they are deployed,” Koech asserted.