Lately, the military has come into sharp focus as it takes more civilian responsibilities. The Kenya Defence Forces (KDF) has taken over certain public entities such as the Uhuru Gardens Monument compound, the Kenya Meat Commission and one of their own is in charge of the lucrative Nairobi County.
It seems President Uhuru Kenyatta has more faith in KDF. Recently, the president lauded the military for rehabilitating the Nanyuki railway at a minimal cost.
Moreover, Major-General Mohamed Badi has been praised for the facelift that Nairobi has enjoyed in the past few months.
However, one must interrogate the legitimacy of shifting civilian duties to KDF. Is what is going on legal and constitutional? Is it the case that Kenyan civilians are irredeemably corrupt so much so that we need the military to step in?
According to Article 241 of the Constitution, the KDF’s work is to protect Kenya from external aggression, can assist during times of emergency subject to National Assembly control and maybe deployed internally to restore peace with the authority of the National Assembly.
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The drafters of the Constitution and the people of Kenya did not envision a situation where soldiers would be carrying out civilian roles at the behest of the presidency and without the oversight of Parliament.
What we are seeing is unprecedented. The military is taking over civilian roles, including those that are exclusive to elected leaders. The military has also begun doing public works without proper justification and a mandate of the National Assembly – which is supposed to oversee any military deployment not related to defending the territory of Kenya or disaster response.
Which begs the following questions: Do these things sit well with the law bearing in mind that the National Assembly has neither been consulted nor involved? Do our public procurement laws envision KDF being involved in public works not related to emergencies or disasters?
While the military is an entity within the executive branch, its place within our constitutional order requires special consideration and respect.
Critical to this is the fact that the military must respect civilian control and must always remain apolitical as it serves all Kenyans regardless of their political party, tribe, religion or other considerations.
Every president should protect its non-partisan nature to avoid skewing the constitutional balance and threatening our democratic governance.
With the takeover of certain critical functions of Nairobi County, can General Badi, an active member of the military, be apolitical, yet he has publicly differed with Governor Mike Sonko, who is an elected official?
Will he be bound by the orders and directions from the Commander-in-Chief or those by the Nairobi County Assembly?
Granted that the military might be efficient, does that justify their deployment in civilian roles without the mandatory oversight of the National Assembly?
For our democratic system to work, civilian leadership and the public must have trust and confidence in the military and its leaders, without concerns of partisanship.
Furthermore, every person who joins a military branch, both enlisted members and officers, takes an oath to support and defend the Constitution.
That shared loyalty to the concepts of our constitution should give our elected leadership the confidence that our military and its leaders are serving the common good without any political inclination.
The actual employment or deployment of military personnel in support of civilian roles is an extremely delicate matter. When not done thoughtfully, it endangers the apolitical reputation of the military that goes to the heart of the military’s legitimacy in the eyes of Kenyans.
The Kenyan military enjoys a good reputation all over the world. We should avoid placing them in political situations. Ideally, the military should not be part of any person’s legacy except in situations of war.
- Mr Kiprono is a constitutional and human rights lawyer. [email protected]