Military must operate within Bill of Rights and protect right to life

KDF officers on patrol along Moi Avenue, Nairobi, on June 27, 2024. [Collins Kweyu, Standard]

This week’s deployment had me frantically searching online for international human rights and humanitarian standards to come to terms with the unprecedented situation of the Kenya Defense Forces being invited to police the right to assembly.

Now Justice Lawrence Mugambi has declared Article 241(b) was properly invoked to protect life and property, what standards must the Inspector General of Police, Chief of the Defence Forces and the President uphold?

Some basics. The military deployment does not mean that Kenya is in conflict, the laws of Kenya have been suspended or Kenya is in a state of emergency. The army and all security agencies remain bound by the Bill of Rights in the Constitution of Kenya and international human rights law, including the International Covenant on Civil and Political Rights.

The national deployment of soldiers has not happened in four decades. Although the sight of military personnel is a familiar sight among communities along the northern and eastern borders of Kenya, the last time this happened was during the 1982 coup.

Although widely understood to have been planned by the Kenya Air Force, the coup was a national rebellion against an authoritarian presidency, the one-party state, rampant corruption, widespread economic distress and the arbitrary arrests and detention of pro-democracy and human rights activists. At least 300 died, 3,000 people were arrested and billions of shillings worth of property destroyed before the coup was defeated.

June 27 was the first day of the military deployment. Human rights observers saw peaceful gatherings being dispersed, protesters arbitrarily arrested and released, and content creators, media people and medics harassed for covering the protests and attending to the injured respectively.

Most worryingly, masked military/police officers in plain clothes were filmed forcing protesters and bystanders into unmarked vehicles. A Nairobi emergency medical centre was tear-gassed, and their lists of patients confiscated. Large crowds of civilians were caught on national television openly carrying weapons across Homa Bay, Eldoret and Nairobi.

By nightfall, one death, 59 arrests and 90 injuries had been verified by the Kenya National Commission on Human Rights. While we wait for the Defence Cabinet Secretary to gazette the length and geographical scope of the deployment, it is important to note the President remains the Commander-in-Chief of the Kenya Defence Forces and the Inspector General of Police remains accountable for all policing functions under the Police Act.

Further, the guidelines for the conduct of police officers and who they are accountable is clearly stated in the Police Act.

It is important that the Kenya Defence Forces chief publicly announces who bears command responsibility for the military deployment, what protocols guide this mission and the mechanisms that the public may use to file complaints. The military must operate within the Bill of Rights in our Constitution and always protect the right to life.

We must demand the immediate withdrawal of all security officers deployed in masks, without uniforms and security vehicles without number plates. The Kenya National Commission on Human Rights must exercise its oversight mandate on military operations, IPOA investigate police misconduct and the Director of Public Prosecutions closely scrutinise all charge sheets to avoid the criminalisation of non-violent protest.

In the latest judicial twist, yesterday the High Court of Malindi barred the use of "water cannons, tear gas, live ammunition, rubber bullets or other crude weapons and the deployment of brute force. The court orders also prevent the State from "committing any extrajudicial killings, arrests, abductions, detentions, intimidation, torture, cruel, inhuman and degrading treatment" against peaceful protesters.

It remains to be seen whether the President’s offer of dialogue will be accepted, the street protests will resume or whether the state will respond to the courts next week. Iconic investigative journalist Mutegi Njau will not report on this, sadly. He died on Thursday. The senior editor covered the 1982 coup and probably every big news story after. He will be remembered as someone who actively protected the independence and professionalism of our media industry.