Delays, court challenge threaten to derail Kenya's mission in Haiti

Gang leader Jimmy "Barbecue" Cherizier and his men patrol their territory in Port-au-Prince, on March 5, 2024. [AFP]

As a contingent of Kenyan police officers was due to arrive in Haiti as part of a multinational police force, delays and a pending court case, which seeks to stop their deployment, may hamper the intervention.

The planned arrival of Kenyan police officers in Haiti on May 23 was abruptly postponed without an official explanation. Sources within Kenya’s Ministry of Interior said an exploratory team had found Haiti ill-prepared for the deployment. The construction of the barracks to host the Kenyan contingent was incomplete.

The arrival of the Kenyan contingent, part of the Multinational Security Support (MSS) mission, had been timed to coincide with President William Ruto’s State visit to the United States. However, during President Biden and President Ruto’s joint press conference on May 23, both confirmed their commitment to the mission without providing details about the delays or an official arrival date for the first African contingent.

Kenya’s deployment of police officers to Haiti comes seven months after Parliament and the Cabinet approved the plan to deploy 1,000 officers. The UN Security Council gave the go-ahead for Kenya to lead the mission. Gangs, some reportedly with links to the assassination of President Jovenel Moïse in 2021, have a stranglehold over much of the country.

A senior official in the Kenyan Ministry of Interior had confirmed that the first group of officers would lay the ground for the arrival of the next, larger batch. (A small advance party of senior police personnel had left for Haiti on May 19 ahead of the main contingent.) However, a legal challenge and the situation in Port-au-Prince could thwart the promises made by the US, Kenya and the international community.

Another legal roadblock?

On May 17, Ekuru Aukot, the leader of Thirdway Alliance party, initiated a last-minute challenge in Kenya’s High Court to the anticipated fly-out of the officers, citing contempt of court and other irregularities. Aukot argues that the government is disregarding a January 2024 court order that declared police deployment to Haiti as unconstitutional and illegal.

This latest petition, the second brought by Aukot, which may block the deployment of the Kenyan force, seeks to have Ruto’s government cited for contempt of court. The High Court has scheduled June 2 as the date for the hearing. It was Aukot’s earlier court case in January that temporarily blocked the deployment on the basis that it was unconstitutional. In his judgment, Justice Chacha Mwita found that Kenya and Haiti lacked a requisite reciprocal agreement, and that the Kenyan President did not have the constitutional mandate to deploy police abroad.

Following the court decision, Ruto and the then Haitian prime minister, Ariel Henry, signed in March a bilateral agreement to circumvent it. At the signing ceremony, Ruto said: “From Kenya, we are ready for this deployment, and I request all the other partners across the globe to step up so that we can provide a response in good time.”

The papers submitted for the latest court case, however, question Henry’s authority to sign the treaty in the absence of a government and parliament in Haiti, which, argues the petitioner, means Haiti does not have the status of a reciprocating country, a prerequisite to ratifying such an agreement. It also faults Ruto for failing to publish in the Kenyan gazette as required by the law. Aukot’s challenge hinges on the fact that the public has not been informed of the content of the treaty, and Ruto was thus acting in bad faith.

President Ruto’s office has avoided any mention of this latest court bid, and has vowed to press on with the deployment. “The Kenyan-led mission to Haiti is ongoing, with police officers set to depart to the country in the next few weeks, having the blessing of the United Nations Security Council, which gave Kenya the mandate to lead the peacekeeping mission,” said Foreign Affairs Principal Secretary Korir Sing’oei on 20 May, two days after Aukot filed the case.

Mission in limbo

How the High Court will handle this new challenge remains uncertain. The jury is out on whether the case can stand given that the deployment of some officers is already underway. However, legal experts believe the deployment is in breach of the January court order. The situation ‘leaves the court case in limbo,’ said Nairobi lawyer Hassan Kulundu, hours after the Haiti-bound officers had been due to leave Jomo Kenyatta International Airport.

The deployment has been conducted in a highly secretive manner, arguably choreographed to avoid litigation and public protests, given the initial scepticism the mission was met with among the public and civil society activists. Although this anti-deployment sentiment has waned lately, some continue to express concerns over the inherent risks in the mission. The non-governmental sector fears that corruption and human rights violations witnessed in some elements of the police service could be replicated in Haiti.

At present, a common objective of the US and Kenyan administrations seems to be the need to deploy forces on Haitian soil as quickly as possible. Despite the recognized urgency of supporting the Haitian police through the mission and the dire situation facing the Haitian people, the opacity, politicking and challenges – and now delays – surrounding the mission risk undermining its legitimacy among Haitian and Kenyan society.

The latest events seem to indicate that neither the logistical aspects, nor certain operational dimensions are yet in place. Other important details, such as how the mission will coordinate with the Haiti police and the Transitional Presidential Council are also missing from the picture.

Delays could also have major consequences for how criminal groups in Haiti will respond. The gangs have stepped up their strategy of destroying public institutions, including police stations and prisons. The mission’s latest setbacks could convince the gangs to launch major offensives or give them additional time to prepare for the arrival of the force.

Whether or not the first Kenyan police boots will hit the ground in Haiti this week, it is critical for the international community to take stock of the opacity surrounding the deployment. Clear communication of its strategy would be the first step to the mission being able to claw back some credibility.

It would be crucial, for example, to appoint a spokesperson and establish an official channel of communication with the deployment’s leadership, mirroring a Haitian representation. If the Kenyan court allows the deployment, and the conditions on site are resolved, the mission will already have its work cut out combating the gangs. It does not need at the same time to have to fight off a mounting legitimacy crisis.