Barely hours after Defence Cabinet Secretary Aden Duale gazetted the deployment of the military to support the National Police Service (NPS) in restoring normalcy in the country questions arose over its constitutionality.
In particular, critics questioned the circumstances quoted in the Gazette Notice given that the 2010 Constitution gives two scenarios on the deployment of KDF in Kenya.
What the Constitution Says in Article 241
The deployment of the military in Kenya is foreseen in two scenarios:
Section 3b - The Defence Forces shall assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances.
Section 3c - The Defence Forces may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.
What Duale Stated
According to Duale, the Tuesday deployment was occasioned by a state of security emergency, hence quoting Section 3b.
“Under Article 241 (3) (b) of the Constitution of Kenya as read with sections 31 (1) (a), 31 (1) (c), 33 (1), 34 (1) and 34 (2) of the Kenya Defence Forces Act, (Cap. 199), the Kenya Defence Forces is deployed on the 25th June, 2024 in support of the National Police Service,” read part of the gazette notice.
“This is in response to the security emergency caused by the ongoing violent protests in various parts of the republic of Kenya resulting in destruction and breaching of critical infrastructure.”
Issue Raised
Therefore, some lawyers wondered whether section 3b was applicable given that it is section 3C (on deployment in cases of unrest) was appropriate in this instance.
In this case, the CS ought to have sought approval from Parliament over the same.
"Kenya Defence Force may be deployed to restore peace in any part of Kenya affected by unrest or instability ONLY with the approval of the National Assembly," Lawyer Donald Kipkorir stated.
Nonetheless, Parliament could not convene owing to the security concerns at the Parliament Buildings.
Regulations on KDF Support to the NPS
As detailed in the Kenya Defence Forces Act, the operation can only be performed in such areas or at such places as determined by the National Security Council.
"The operation shall be discontinued as the National Security Council deems it expedient and necessary, and shall be performed in accordance with a code of conduct and operational procedures on the regulation of the Defence Forces support operations approved by the Defence Council," read the Act in part.
On the other hand, the military and the police also have to have a joint operation plan and guidelines which need to be developed by the Chief of the Defence Forces Charles Kahariri and the Inspector-General of Police Japhet Koome.
