Mapping the Legal Contours for Internal Deployment of Military Forces in Kenya

On March 17, 2017, President Uhuru Kenyatta ordered the Kenya Defence Forces (KDF) to mount an operation in the Rift Valley to quell hostilities in the region. KDF has also been deployed to conduct an operation in Boni Forest in coastal Kenya to flush out suspected Al Shabaab militia reported to have taken refuge in the forest.

This is not new. Before the promulgation of the current Constitution in August 2010, prior administrations deployed the military to handle internal security operations, including hostilities by the Sabaot Land Defence Force (SLDF). However, perhaps due to the heavy-handedness of the military in these operations, the new Constitution of Kenya, enacted in 2010, installed legal controls on the use of the military within Kenya’s borders. Although Article 241 (3) of the Constitution empowers deployment of military forces to “restore peace in any part of Kenya affected by unrest or instability,” it also adds an important caveat that such a deployment may “only be made with the approval of the National Assembly.” What form is such approval supposed to take?

Section 31 of the Kenya Defence Forces Act of 2012 (KDF Act) read together with Section 13 of the Kenya Defence Forces (Amendment) Forces Act of 2016 (Amendment Act) offers the following answer:

Where the Defence Forces is deployed for any [internal security] purpose, the Cabinet Secretary shall inform the National Assembly promptly and in appropriate detail … and if the National Assembly is not in session during the first seven days after the deployment of the Defence Forces as contemplated, the Defence Council shall, through the President, provide the information required to the Speaker of the National Assembly.

Thus, while the Constitution requires “approval,” the later Acts provide for mere "information." These two terms have disparate meanings. Obviously, as a practical matter, merely being obligated to provide information does not mandate an interrogation by the National Assembly on the utility of the military exercise, while a requirement to seek “approval” would.

Additionally, as a legal issue, this presents an interpretation problem. The Constitution is exceptionally unambiguous: military operations in the course of internal security may occur “only with the approval of the National Assembly.” Article 2 of the Constitution provides that it is the supreme law of the land. Therefore, Sections 31 of the KDF Act and Section 13 of the Amendment Act—which are inconsistent with the Constitution because they provide for information and not approval—are null and void.

In any event, it is important to note that in using the word “approval,” the framers of the Constitution may have intended that the National Assembly have an input on the use of the military in internal security operations. This is in tandem with the “separation of powers” doctrine. In the Matter of the National Land Commission [2015] eKLR, the Supreme Court of Kenya found that the separation of powers doctrine has a “checks and balances” net effect, which means that “the system of checks and balances were put in place to empower other organs of Government to apply their countervailing powers, to prevent, or limit the excessive use of powers.” By limiting the National Assembly oversight to mere information recipient, the Acts eliminate the net effect of the “separation of powers” doctrine, hence leaving the KDF Forces susceptible to abuse from the Executive.

The counterargument that any impact arising from the deployment may be redressed in court is unsatisfactory. Just as an ounce of prevention is worth a pound of cure, analyzing the utility of military use in internal security pre-deployment is vastly preferable to determining redress post-deployment. As it stands now, of the remaining two arms of government—the Judiciary and the National Assembly—it is the latter which is better structured to deal with fast-paced military objectives before they are actualized. Furthermore, deployment of KDF Forces in internal security matters also provides an operational hurdle. It is true that with the increase of transactional threats, the lines between internal and external security are increasingly getting blurred. At the same time, however, there is already an effective national security unit to deal with precisely this issue. These are generally referred to as paramilitary forces.

The term “paramilitary” is generally used to describe “police forces which have certain military characteristics and some degree of military capability even though strictly speaking they are not part of the armed forces.” The paramilitary force in Kenya is the General Service Unit. This Unit, established under Section 24 of the National Police Service Act is empowered to “control rioters mobs and civil disturbance; carry out anti-poaching operations and escort duties and containing banditry and cattle rustling and countering terrorism activities.” Deployment of the military in operations that are designated to the GSU creates internal confusion, which, as witnessed in the Westgate Mall Attack in September 2013, may actually lead to greater fatalities and defeat the very object of national security.

This issue has received neither judicial ventilation nor public traction. Until either of the aforementioned occurs, it seems that military deployments conducted unilaterally by the executive will continue, which may pave the way for significant legal and operational hurdles in Kenya’s national security.