The High Court has upheld the decision by the Cabinet Secretary for Defence Aden Duale for the deployment of KDF to give support to the National Police Service in a purported security emergency caused by demonstrators in various parts of the country.
In his ruling delivered on Thursday last week, Justice Lawrence Mugambi stated that intervention by the military to preserve order, peace and public safety is necessary.
He also stated that the court will retain its residual powers of observing military deployment on observance of human rights and the court will remain open receiving and to dealing with any complaints of violation for as long as the military intervention lasts,
“It is hereby directed that the terms of military engagement, duration of engagement is clearly defined and gazetted in the next two days,” said Justice Mugambi.
The judge said that this would alleviate public fear of their constitutional liberties being jeopardized and give them confidence that their liberties will be observed during the duration of military engagement.
The Law Society of Kenya has filed a case in court to challenge the decision of Cabinet Secretary for Defence Aden Duale to deploy Kenya Defence Forces to support the National Police Service in what purported a security emergency.
On June 25, 2024, the Cabinet Secretary for Defence issued a Gazette notice No.7861 unilaterally and illegally deployed the Kenya Defence Forces (KDF) to support the National Police Service in responding to a purported security emergency caused by what Gazette notice termed to be ongoing violent protests against the Finance Bill 2024 in various parts of the country which resulted in destruction and breach of official infrastructure.
LSK stated that the notice was unilaterally published in a hurry and in such non-fundamental compliance with the mandatory provisions of articles 37,47 and 241of the constitution and sections 31 (1) a, 32 (1) and 34 (2) of the Kenya Defence Forces Act 199 of the laws of Kenya which requires the National Assembly to approve and a reasonable justification from the Cabinet Secretary for Defence for deployment of KDF on Kenyan land before the gazettement was made.
“The deployment have been done without following the lawful procedure,” LSK challenges.
They also state that the reason for the deployment of KDF supporting the National Police Service in a purported security emergency is not mentioned in that impugned Gazette notice.
They state that no state of emergency under Article 58 of the constitution has been declared by the president exercising his constitutional mandate.
Furthermore, no emergency, disaster, insecurity, unrest or instability has been declared to exist in Kenya and to be outside of the mandate, scope or capacity of the National Police Service in the manner envisaged in the impugned Gazette notice.
There is no demonstration that the National Police who have the principal constitution mandate for maintaining law and order for civilian security in the country or any other security agency or any other authority have been overwhelmed or are otherwise inadequate or incapable of dealing with any peaceful protest or any surges of unrest which may arise from the peaceful demonstrations against the Finance Bill, 2024 being witnessed.
Many Kenyan youths are outraged by the current state of public finance management in the country and the government’s proclivity towards increasing taxes to fund its spending.
As such, thousands of youths across the country had turned out to carry out peaceful demonstrations calling out for the rejection of the Finance Bill, 2024 as a sign of their frustration with the government.
Their right to conduct peaceful demonstrations is guided by the constitution under Article 37 which should not be threatened or curtailed.
The Gazette notice effectively sets the military upon peaceful demonstrators who seek to exercise their democratic right under Article 37 of the constitution.
No other time than 1982 in the history of the Republic of Kenya has ever been a carte blanche deployment of the military to support the National Police during public demonstrations.
The deployment of the military now sends chills to the spines of Kenyans who would otherwise participate in demonstrations that the country may recede to a police state or that the government is at war with the people.
In considering the Gazette notice, the military is not best suited and not professionally trained for internal security matters which involve civilians withstanding the fact that the constitutional thresholds were not achieved before the Cabinet Secretary for Defence deployed the KDF for this case.