Misbehaving Before the Enemy: Law Bearing Life Sentence for Scared Soldiers

KDF officers during a past operation
KDF officers during a past operation.

As Kenya Defence Forces (KDF) continue with mass recruitment, Kenyans.co.ke has learnt of a little-known law that bans soldiers from running away during combat missions against the country's enemy.

Engraved in Section 64 of the KDF Act, the law, globally known as "Misbehaving before the enemy", bans soldiers from acts of cowardice including abandoning their posts, throwing away their firearms or flatly running away from the enemy.

The law also prohibits the soldiers from abandoning or surrendering military property assigned to them for use in the missions. Such acts are considered as committing the offence of cowardice.

"A person who is subject to this Act commits an offence if that person, when before an enemy, and in such a manner as to show cowardice: leaves the post, position or other place where it is the person's duty to be, throws away the person's arms, ammunition or tools, otherwise behaves in such a manner as to show cowardice, induces other persons subject to this Act to commit an offence of cowardice under this section, runs away or shamefully abandons, surrenders or delivers up any command, unit, place, or military property which it is his or her duty to defend under this section," reads the Act in part.

An undated photo of members of the outlawed Al Shabaab sect.
Members of the outlawed Al Shabaab terror group in Mogadishu on May 19, 2021.
Council on Foreign Relations

For the past 10 years, Kenya has been engaged in a vicious war with Al Shabaab, an extremist group linked to the Al-Qaeda, and is considered one of the country's major security threats.

According to the law, anyone convicted of the offence of cowardice is liable, upon conviction by a court-martial, to life imprisonment or any lesser punishment.

It is, however, not clear whether any soldier has ever been charged with the offence since files from the court-martial are always kept secret.

The offence rose to prominence during World War 1 but some countries have since abandoned it.

British soldier Harry Farr was executed for the offence in October 1918 while Thomas Highgate, another British soldier, was captured and shot within 48 hours of being accused of misbehaving before the enemy.

The latest conviction worldwide under the banner was of a US soldier, Sgt. Bowe Bergdahl, who was accused of walking away from his post in Afghanistan in 2009.

While participating in the war, Bergdahl reportedly held captive between 2009 and 2014 and was only released after then President Barrack Obama agreed to free five Taliban members that had been imprisoned at Guantanamo Bay.

Bergdahl, who pleaded guilty to the charges, was, however, spared prison time and was sentenced to dishonorable discharge, He was also ordered to forfeit Ksh100,000 (USD1,000) per month and saw his rank reduced from sergeant to private.

In the fight against Al Shabaab, KDF Commanding Officer Lieutenant Colonel Godfrey Owuor noted, in a past interview, that the state was impressed with the officers' progress in Somalia.

"We are very impressed by the achievement so far and we believe that when they take the same stride, we will see a completely peaceful Jubaland and Kismayu in the next 10 years," he stated.

An undated photo of Sgt. Bowe Bergdahl
An undated photo of Sgt. Bowe Bergdahl.
Associated Press
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