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MPs differ on law allowing military deployment in civilian zones

By Roselyne Obala | July 30th 2017

A military tanker used by KDF for patrol in Loruk, Baringo County on December 16, 2014 Photo: Kipsang Joseph

The Kenya Defence Forces (Amendment) Act allows deployment of the military to handle internal security matters that should ordinarily be the work of the National Police Service.

Though the intent of the repeal to the parent Act was to deal with threats posed by the Somalia’s Al-Shabaab terrorists who continue to carrying out deadly attacks in Kenya, it was allegedly done in a way that threatens to undermine civil liberties and which might lead to exploitation of insecurity to raid the public purse without accountability.

The law prevents scrutiny by providing an express provision that such publications of operation and finance shall not contain information that would undermine “national security”.

Article 241 (3) (b) (c) of the Constitution stipulates that the KDF 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 may also be positioned to restore peace in any part of Kenya affected by unrest or instability only with the approval of MPs.

However, changes to section 31 of the Principal Act, though it recognises the forces’ role, it enforces that it should be done in the interest of national security, co-operate and work with other security organs in the discharge of its constitutional mandate.

The opposition and civil societies read mischief but Tetu MP and Defence committee chair Ndung’u Gethenji maintains that the new law provides for transparency in the forces' activities.

Despite the law compelling the Cabinet Secretary for Defence, in this case, Rachelle Omamo, to inform the National Assembly on the reason for such deployment, where they will be placed, the period of operation and expenditure incurred for MPs approval, she is still at liberty to proceed.

“If the National Assembly is not in session during the first seven days after deployment of the forces. The CS shall provide information to the Speaker,” reads the Act in part.

Gem MP Jakoyo Midiwo however criticised the section, saying the Speaker does not hold brief for the MPs since he has no vote.

“This section is unconstitutional. The Speaker cannot hold brief for us. The deployment can only be authorised by us,” stressed Midiwo, who is a member of the Defence Committee.

He noted that under section 33 of the Act, the KDF must work under the command of the civil forces, in this case the Inspector General of Police Joseph Boinnet and only by invitation.

“If the Government is planning to use the military in elections, then it’s wrong. The military cannot be involved in election issues, it will destroy the credibility of the forces. The National Assembly must approve the deployment,” warned Midiwo.

According to Section 33(3), the deployment in support of National Police Service is factored however it is well articulated as in a joint operation and in support of the Service in situations of emergency or disaster.

“The Defence Forces may, with the approval of the National Assembly, be deployed to restore peace in any part of Kenya,” the principal Act reads.

It continued, “Whenever the Defence Forces are deployed, the IG shall be responsible for the administration, command, control and overall superintendence of the operation.” The new law deletes administration and command and the subsection on the requirement for national Assembly’s approval.

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