Kenyan High Court Upholds Military Deployment

Earlier in the week, the Law Society of Kenya (LSK) filed a petition at the High Court challenging the legality of the decision by the government to deploy the Kenya Defence Forces (KDF) on the streets amid the ongoing anti-finance bill demonstrations.

The LSK’s petition had the following reservations:

  • Constitutional Requirements: The LSK argued that no state of emergency, unrest, or instability had been officially declared in Kenya. According to the LSK, this declaration is necessary under Article 58 of the Constitution to justify military deployment for internal security purposes.
  • Scope and Mandate of the Police: The LSK contended that the situation had not exceeded the mandate, scope, or capacity of the National Police Service. They argued that the police were fully capable of handling the protests without military support, making the deployment of the KDF unnecessary and unconstitutional.
  • Violation of Rights: The LSK expressed concerns that the deployment posed a significant threat to the basic rights and freedoms of Kenyans. They felt that involving the military could lead to violations of the right to peacefully protest and other constitutional protections.
  • Historical Precedent: The LSK highlighted that the deployment of the military for civilian demonstrations was unprecedented in Kenya’s history. They emphasized that such a measure should not be taken lightly or without clear and present justification.
  • Legality of the Process: The LSK criticized the process by which deployment was authorized. They argued that the gazette notice issued by the Cabinet Secretary of Defence was illegal and had not followed the proper constitutional and legal procedures.

The High Court has made a ruling that upholds the decision by the government to deploy the military to assist the Police in maintaining order during the protests. However, the Defence Secretary has been ordered to issue a new gazette notice within two days, detailing the terms, scope, areas and duration of the deployment to ensure that the public is adequately informed.

The following are some details on the High Court Ruling by Justice Lawrence Mugambi.

  • The Judge agreed with the Law Society of Kenya that the initial deployment fell short of the requirements stipulated in Article 241 of the Constitution and relevant provisions of the Kenya Defence Forces Act.
  • The Court found that the original gazette notice lacked clarity regarding the scope, terms, conduct and timeframe of the military deployment.
  • Despite these shortcomings, the Judge held that the deployment was necessitated by the circumstances that arose earlier during the protests when it appeared that the Police were unable to control the protesters.
  • The Court acknowledged that such deployment could create a rift between citizens and the military. To address this concern, the Judge ordered a more detailed enumeration of the terms, scope, areas and duration of the deployment.
  • The Judge interpreted Article 241 of the Constitution as applicable to the current protests. That part of the Constitution allows for military deployment in cases of instability and unrest, and in other emergency situations.
  • The Court aimed to balance the need for maintaining order with the requirement for transparency and clarity in the military deployment by ordering a new more detailed gazette notice.

The LSK respected the Court’s decision but disagreed with the interpretation of Article 241. They argued that the threshold for military deployment should not be set so low. They maintain that the Police were capable of handling the protests within the law and that the military’s involvement should be reserved for more severe situations.

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