Parliament to be stripped of powers to deploy KDF
By James Mbaka
| July 14th 2014
|Kenya Defence Forces patrol the streets of Fafadun township during the vicious battle to reach Kismayu Port. A new Bill is seeking to strip Parliament of its powers to have a say in internal military deployment. [PHOTO:FILE/STANDARD]|
NAIROBI, KENYA: Parliament will be stripped of its powers to have a say in internal military deployment, if proposed amendments see light of the day.
The Statute Law Miscellaneous (Amendment) Bill 2014 seeks to delete sections of Article 241(3), which provides for the procedure for local military deployment, essentially diluting the input of the National Assembly in case the Government wants to use the military internally.
Pursuant to Article 241(3) of the Constitution, the military can be deployed locally on two grounds: Assist and co-operate with other authorities in situations of emergency or disaster or to restore peace in any part of Kenya affected by unrest or instability
While the Kenya Defence Forces Act is clear that under the above circumstances, the National Assembly can only be informed whenever there is internal deployment to assist in emergency or disaster, the provisions of the Constitution are specific when it comes to deployment of the military internally to restore peace since the latter requires express authority of Parliament.
This means that the Government through the Cabinet Secretary for Defence will only be required to merely gazette the start of the operation and de-gazette the end of the exercise without necessarily seeking MPs approval in what is seen as part of the Government’s strategy to cut down military deployment bureaucracy and scale up the use of the military to combat run-away crime in the country.
The Government has been under attack from the former Prime Minister Raila Odinga’s CORD for failing to firmly deal with raging insecurity in the country in the wake of killings in Mpeketoni, Hindi and Wajir which the Government has attributed to ethnic conflict fanned by criminal gangs.
In August last year, President Uhuru Kenyatta created a new military command to combat rising crime and terrorist threats inside the country despite criticism from security experts, civil society groups and a section of politicians who termed the move an attempt to militarise the country by letting the Kenya Defence Forces (KDF) take up roles assigned to the Kenya Police Service (NPS).
The Nairobi Metropolitan Command, was to come under KDF, specifically to deal with security threats such as terrorism, drug trafficking and proliferation of small arms in the capital.
It is yet not clear if the command took up its roles given that attacks with and around the city have been on the increase and with the KDF’s visibility doubtful in crime scenes within the city.
The Government had argued that the creation of the command was necessitated by the need to have a well co-ordinated and trained force on standby to deal with emerging threats.
Security personnel was often caught off guard by terrorists, but the Government argued the command was the ultimate solution that would not only be responding to attacks but help in forestalling the attacks as well.
In the above case, the President was widely criticised for not seeking the approval of Parliament in dispensing his executive orders as the commander-in-chief of the Kenya Defence Forces (KDF).
The proposed amendment seeks to delete the section : “Where KDF is deployed for any purpose contemplated in subsection Article 241(3) (1)(b) and (c), the Cabinet Secretary shall inform the National Assembly promptly and in appropriate detail of the reasons for such deployment, place where the Defence Forces is being deployed, number of persons involved, period for which the military is expected to be deployed and expenditure incurred or expected to be incurred.”
The proposed amendment also seeks to delete a section of the law that requires the President to inform Speaker of the National Assembly in case Parliament is on recess for break of more than seven days.
If passed, this section will be deleted: “If the National Assembly is not in session during the first seven days after the deployment of KDF as contemplated in subsection (3), the Defence Council shall, through the President, provide the information required in that subsection (3) to the Speaker of the National Assembly.”
But National Assembly Majority Leader Adan Duale termed the Bill long overdue and noted that Parliament will still reserve the constitutional mandate to sanction or reject military deployment.
“We need to ensure that we remove the roadblocks on the way that may derail the process of deployment of the military locally so that we can respond faster and swiftly,” Duale said.
The Majority Leader noted that some of the contentious sections that Kenyans had raised concern on have been deleted from the Bill to be introduced in the House in a few days.
“We have worked on the Bill and removed some of the controversial provisions like that touching on Non Governmental Organisations, Salaries and Remuneration Commission chairperson and Inspector Generals’s office. I believe what we now have is a Bill that represents the best interests of all Kenyans,” he said.
“The Cabinet Secretary will only be required to gazette the start of an operation when the country wants to deploy the military locally, de-gazette the operation once it ends and provide a report to Parliament,” he added.
However, the plan to amend the Bill has received criticism from several quarters.
Kitutu Chache South MP Richard Onyonka who is also a member of the Defence and Foreign Relations Committee termed the move unconstitutional and warned his colleagues against rushing into it blindly.
“The drafters of the Constitution had a reason for making it necessary to seek parliamentary approval for military deployment. When addressing insecurity, we need to be careful not to erode the gains we have made,” he said.
International Centre for Policy and Conflict (ICPC) boss Ndung’u Wainaina faulted the move and accused politicians of playing to political emotions rather than critical understanding of the provisions of the Constitution.
“It is a tragedy that both the National Assembly and the Senate are passing laws that are not only inconsistent with the Constitution but also undermines the very principles of the law. The Constitution envisaged all scenarios and provided for a demarcation of functions of the NPS and the KDF,” he warned.
He accused Parliament of undermining the spirit of the Constitution that provided for a strong and vibrant police service and urged for laws that seek to strengthen the intelligence gathering wing of the service rather than to assign to the military.
“Lessons learnt from other countries around the world is that when the military gets involved in internal security matters, they tend to undermine constitutional democracy and entrench military democracy. Kenyans must fight to keep the military off matters security internally, unless we want to militarise the country. If that happens, then Kenyans will regret that decision,” Ndung’u said as he accused the Government of slowly and consistently militarising the police, if the amendments sail through.
He said unlike the police who are allowed to live in civilian houses and interact with civilians, the law prohibits military officers from staying outside the barracks.
Centre for Law and Research International Executive Director Morris Odhiambo said militarising internal security was not the way to go for Kenya.
“Having the military take on police functions shows that police have failed in their mandate and indicates government’s lack of will to reform and build the capacity of the police service so that it can effectively do its job,” he said
“Problems of insecurity can be dealt with only if we deal with organs of police themselves. We cannot run away from that fact by introducing concepts like deploying the military internally which ultimately do not make sense,” Odhiambo added.
He noted that the military is not trained in policing but they are trained to protect our borders from external aggressions. “Let us do what has to be done, which is reforming the police by removing the bad apples from the force,” said Odhiambo.
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