Judge declines to order military back to their barracks

The High Court has affirmed government's decision to deploy the military to assist the police to quell violent protests.

Justice Lawrence Mugambi, however, gave a caveat that the Defence ministry should gazette the Kenya Defense Forces terms of engagement and the duration of the operation within two days.

Mugambi observed that although the deployment is justified, it is against the law to have the disciplined forces out of the barracks in a blanket manner.

The judge said the failure to indicate why the military officers are out of their bases and for how long was creating apprehension.

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“It is common knowledge that by its nature and training the military is not equipped or is ill equipped to deal with civilian population as it is trained to deal with armed combat as its principle is primarily suppression through the use of force to resolve crisis,” Mugambi said.

“I would therefore agree with the petitioner that to deploy the military in a blanket manner without defining their scope of operation and the duration of their operation is a dangerous trend that can bring about militarisation of the country which is antithetical to the enjoyment of rights and freedoms,” he said.

The judge however said that involvement of the military is critical to protect properties and government installments. He observed that the Supreme Court and Parliament had been vandalised after peaceful protests turned chaotic.

Justice Mugambi was of the view that to strike a balance, the government should publish crucial information for Kenyans to scrutinise and be informed.

At the same time, the judge directed that the file will remain open for oversight and Kenyans to raise concern if there is a violation of the law.

In the case, Law Society of Kenya (LSK) lawyers led by its president Faith Odhiambo argued that there was no need of having the military out of the barracks.

Ms Odhiambo told the court that the last time KDF was in the streets was during the attempted 1982 coup.  She argued that it is only when and if the president declares a state of emergency that the disciplined forces can leave their bases.

 “I ask you to disregard the definitions that have been given. The president will make a declaration of emergency and the declaration is made in writing under Article 135. It is just then when the Kenya Army can be deployed and report to Parliament. Nothing was done. Parliament’s permission was only sought after deployment,” argued Odhiambo.

Other lawyers representing LSK were Hosea Manwa, and Chrysostom Akhaabi.

Akhaabi argued that the approval was sought after the deployment had happened. He claimed that the military personnel had already blockaded Lenana and Dennis Pritt Roads by the time the National Assembly was considering the motion.

“The government is doing what it feels like, scandalising the Constitution. It is only this court that can stop it. We have demonstrated why it is very urgent. Approval was not sought before deployment. This was done for a collateral purpose to muzzle the fundamental rights,” argued Akhaabi.

In response, Attorney General Justin Muturi, Ministry of Defence Cabinet Secretary Aden Duale and Chief of Defence Forces Charles Kahariri urged the court to dismiss the application to order KDF to retreat.

State counsel Emmanuel Bitta told the court that the Article relied upon by  Duale envisaged deployment of military in emergency situations.

He said that Kenya’s security is at stake adding that the state needed to protect properties and life.

Bitta argued that there was no evidence of violation of the Constitution. According to him, the case was based on fears which could not be proven.

“You will notice that it is only a claim that has been made on the bill of rights chapter. There is no claim on violation of Constitution and there is no relief sought that is premised on the bill of rights. KDF can assist in situations of emergency and co-operate in situations of emergency. It can also be deployed to restore peace in any part of the country,” argued Bitta.

Duale and Kahariri urged the court to consider the chaos, looting and property damage in the country. They insisted that government did not require to seek approval from Parliament.

“It is an interest of national security.  Policing cannot stop because of the right to picket. It is speculative that the military are meant to ca. use fears,” the two argued.