The Legality of Deployment of KDF to Turkana

The commander in chief of the defence forces of the republic of Kenya made a decision to deploy military forces to respond to the killing of more than 40 police officers and civilians in Suguta Valley. However, this move has attracted sharp criticism from academics and lawmakers alike in what is seen as a serious breach of the statutory provisions of the law that creates the Kenya Defence Forces. Many questions arise as to the constitutionality of the deployment and whether the country’s internal security apparatus had failed to contain the situation to warrant the intervention of the highest security body on the land. The conflict between the local communities over livestock, pasture for their animals does not meet the threshold of involving the military personnel. Germany's highest court made a landmark ruling permitting armed soldiers to be deployed in the country but stated that the particular threat would have to be of 'catastrophic proportions' in order to get troops from their barracks and on to the streets with their weapons primed. It is also important to urge caution in the use of the Kenya Defence Forces after the negative publicity that emerged from its sojourn in Mt Elgon not so many years ago where the military used excessive force and many non-combatants suffered torture at its hands. The military must be left to deal with the external threats to the country unless there is a total breakdown of civil order. The present situation, chaotic as it looks, does not merit military intervention. It calls for better equipment and intelligence by the police. It will set a dangerous precedent to begin deploying the military against its citizens regardless of how worrying or deadly their conflict seems without first exploring why the Police have failed. There can be no excuse for Kenyans killing each other and it is squarely the responsibility of the government to remove the threats to peace. But deploying the military is unprecedented and unmerited in the Baragoi case. President Kibaki should have instead deployed the Anti-Stock Theft Unit, Rapid Response Squad or the General Service Unit officers to deal with cattle rustlers. The Constitutional Court in Karlsruhe said armed soldiers could only be turned out in 'exceptional cases to prevent threats to the state' and never against demonstrators. The Constitutional Court of Germany added a rider that the deployment of the armed services - air, sea and land - could only come from parliament and could not be delegated under any circumstances to a single minister or ministry, particularly defence. The military’s role was to primarily defend Kenya’s borders from external aggression as opposed to fighting internal conflicts.

The decision of the head of state and the National Security Council does not in any way reflect the statutory requirements of the statutes that relate to the duty of the Kenya Defence Forces.

The Kenya Defence Forces

241. (1) There are established the Kenya Defence Forces.

(2) The Defence Forces consist of—

(a) the Kenya Army;

(b) the Kenya Air Force; and

(c) the Kenya Navy.

(3) The Defence Forces—

 (a) are responsible for the defence and protection of the sovereignty and territorial integrity of the Republic;

(b) shall assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly

whenever deployed in such circumstances; and

(c) may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.

Kenya Defence Forces Act 2012

"enemy" means—

(a) any person or country committing external aggression against Kenya;

(b) any person belonging to a country committing such aggression;

(c) such other country as may be declared by the Cabinet Secretary, to be assisting the country committing such aggression;

(d) any person belonging to the country referred to under paragraph (iii);

Residents of Samburu and Turkana counties of Kenya do not fall under the realm of the “enemy” as defined in the Kenya Defence Forces Act 2012. Neither is the Kenya Defence Forces mandated to pursue cattle rustlers nor involve in disarmament operations.