Dr Charles Khamala
When faced with two or more competing regimes claiming to be the government, states usually offer to support one group by treating it as the legitimate representative of the local people. Kenya’s criteria for recognising President Salva Kiir’s administration include not only the positions by regional or international organisations, but also effectiveness, our national interests as well as respect for South Sudanese constitutional procedures.
Since 2013, Kenya had contributed to the United Nations Mission in the Republic of South Sudan 16,000 peacekeeping troops. Suddenly withdrawing the KDF generates debate about whether any rules regulate the international use of force. Hence, Kenya’s Official Opposition leader Raila Odinga castigated President Uhuru Kenyatta’s withdrawal of the Kenya Defence Forces from South Sudan as informed by “anger” which is “bad for international relations.”
Conversely, little outrage was expressed against returning the “Sudan People’s Liberation Movement – In Opposition’s” spokesman James Gatdet to a situation where his life is endangered, and whether it offends the principle of “non-refoulement.” Commendably, former South Sudanese Vice President Dr Riek Machar acted responsibly by directing his supporters not to retaliate against Kenyans in his country.
Peace diplomacy lessons may be learned from the earlier domestic deployment of KDF to reinforce security, following the June 2014 attack that killed 60 civilians in Lamu County. On one hand, since the majority killed comprised 37 Kikuyus, the ruling Jubilee party linked the massacre with Odinga’s Cord. On the other hand, Al Shabaab claimed responsibility “in revenge for the presence of Kenyan troops in Somalia and the killing of Muslims.”
Meanwhile, the president of the Uganda’s People’s Development Party Dr Abed Bwanika called for his government to apportion some financial resources in the new budget to the terror fight in Kenya, and for the other East African nations to follow suit. KDF reinforcement was deployed to shore up the police’s capacity to contain the peace.
Nonetheless, it is not possible to appreciate a foreign state’s responsibility to extend humanitarian intervention by deploying external support to maintain peace in third-party states, without first grasping the domestic army’s role in complementing the domestic police to prevent state disintegration during national emergencies.
This essay constructs a theoretical framework to explore the role played by Parliament and the Judiciary in either checking or acquiescing to the executive’s omission to protect human rights, akin to the “Gatdet refoulement”. It uses comparative judicial decisions as persuasive precedents to distinguish whether presidential directives deploying an external force to alleviate humanitarian disasters facing third-party states from refoulement may be subjected to judicial review.
There is similar debate as to whether or not Parliament has authority to ratify or punish executive repression that results in overreach. Contextually, emphasis is on the tension between the Kenyan state’s use of emergency powers to prevent state disintegration, on one hand, and Parliament’s earlier acquiescence of an illegitimate 2014-2015 curfew at Lamu, on the other. Theoretically, Parliament’s ratification of the executive’s withdrawal from South Sudan may be contradicted by the same reasons that informed its support for the Lamu curfew, ironically condoning the detriment of human rights in both situations. Yet it would appear that unlike the Executive’s accountability requirements in response to domestic emergencies, our courts lack jurisdiction to constrain the former’s subjective discretion in relation to foreign “legal black holes.”
Preservation of pubic security
The Kenyan experience of emergency rule has its origins in the struggle against colonial rule. Repressive measures are invoked not merely to disperse crowds or banish fear from the general public; rather, extraordinary force is justified to save the life of the nation. External aggression is repulsed by military force under the National Defence Forces Act No. 25 of 2012 as read with Articles 238-241 under Chapter 14 of the Constitution.
Under Article 58 of the Constitution: “(1) A state of emergency may be declared only under Article 132(4)(d) and only when – (a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to meet the circumstances for which the emergency is declared.” Article 132(4) authorises: “The President may…(d) subject to Article 58, declare a state of emergency.”
However, under Clause (7), “A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act or omission.” Clearly, Executive directives attract judicial review for domestic emergencies, like limits cover curfews. But can courts review Executive acts or omissions during use of force on humanitarian missions in foreign territories? How about liability for excessive force on refugees?
At the turn of the century, tyrants became encumbered by the international community’s newly acquired “responsibility to protect,” partly aided by the International Criminal Court’s jurisdiction to punish mass atrocity perpetrators. However, the sovereign’s search for extra-constitutional powers to harass domestic political opponents – whether through torture, “stop and search” or worse – has recently become rationalisable by the escalation of novel threats such as international terrorism or cybercrimes.
Since its November 15 2015 attacks on Bataclan Club, Paris, where at least 130 people were killed and 300 wounded, France, for example, has been living under a nationwide state of emergency (état d›urgence). Kenya’s most notorious recent gunning episodes include September 21, 2013, Westgate, where 67 staff and customers died, and April 2, 2015 Garissa University College, where 148 died, 142 of them students.
Transnationally, a need arises to reconceptualise the state’s use of emergency powers in the global era. A contradiction characterises African emergencies not because national security is no longer threatened by mere informal social movements from within, or even by fundamentalist “others” from without, but because of the inherent fragility of heterogeneous and impoverished states. Hence bizarre suspicion by different ethnic groups not only mistrusts the Executive’s abuse of discretionary power, but also misconstrues the international community’s motives for collaborating with either ethnic or religious faction, if not neo-imperialist forces often accused of seeking state disintegration, rather than stabilisation. Modern civic education thus entails a component of public international law, particularly international humanitarian law.
As Kenya’s anti-ICC prayer rallies testify, the traditionally ambiguous concept of what constitutes a threat to national security is no longer contested dichotomously between either entrusting the Executive to uphold national security or respecting judicial authority. Instead, permissible derogation from human rights is increasingly swayed by the Third Estate, commoners: popular referendums or legislative votes that endorse or ratify executive excesses.
Liberal democratic constitutions should uphold the rule of law. Theoretically, individual “rights are trumps”. Yet, exceptionally, the reverse is the case. It is necessary to develop a theory that explains whether objective circumstances count towards valid extensions of special powers to the Executive, or if ruling elites can legitimately manipulate support from ethnic communities to justify using force to oust individual rights.
Three questions arise. One, to what extent are extra-legal means permissible in quelling extraordinary public order disturbances? Two, which institution is best placed to effectively check a rogue Executive that overreaches its remit of exceptional force? Three, what obligations, if any, are incumbent on third-party states? The international community’s role necessarily introduces a second-order or fourth dimension.
Positivism or natural law?
What is the legal justification for emergency powers? John Locke’s Second Treatise on Civil Government (1690), analyses the exercise of the prerogative powers in two forms: the normal and exceptional. His theory of prerogative power was accepted by many of the American founding fathers and their contemporaries as a foundation for a theory of extra-legal powers.
Before rationalising the Lamu curfew’s suspension of human rights, it is useful to understand three models advanced by Oren Gross and Fionnuala Ní Aoláin (2006). They encompass not only three sub-varieties of accomodationist (constitutional, legislative and interpretive) models, but also, a “business as usual” model and an “extra-legal measures” model. The latter two models are pertinent. They require that “Under the Business-as-Usual model, in its purest expression, a state of emergency is not deemed to justify a deviation from the ‘normal’ legal system. The ordinary legal system is deemed to provide the necessary answers to any crisis without the need to resort to extraordinary powers.”
They note how “Kenya… ratified the African Charter (of Human and Peoples’ Rights) in 1992. It has before and since that time experienced one-party authoritarian government.
There are multiple examples of legislative accommodation that are presented politically as ordinary legislation with no formal emergency rule… In addition, many ordinary legislative acts operate to curtail individual freedom substantially.” Thus following Gross and Ní Aoláin, Kenyan emergencies are arguably effected administratively without triggering formal rules.
From a regional perspective, a comparative case is the Media Rights Agenda and Constitutional Rights Project vs. Nigeria (2000) AHRLR 200. The African Commission on Human and Peoples’ Rights held that, globally, it is only the African Charter that comports formally to the Business-as-Usual approach. This unique feature is evidenced by the fact that “in contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore, limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.”
Naturally, such absolute standard is reflective of Africa’s repressive colonial history.
Notwithstanding a threat to the State, the Charter uniquely prohibits African governments from violating citizens’ rights. Rather, during a state of emergency, the ordinary law ceases to be effective. Instead, the sovereign is entitled to resort to extra-legal measures – which are available in a “legal black hole” – where juridical relations are absent. It is only after normalcy is restored that the moral standard of the sovereign can be subjected to ex post facto ratification by scrutiny either by the people or their representatives.
Thus scrutiny provides a determination of the appropriateness of his actions in the context of the circumstances given that there existed an unforeseeable gap in the law. But three pre-requisites are essential. One, the sovereign is required to disclose the circumstances, and admit the repressive actions that he took; this constitutes an ethic of responsibility. Two, deliberation can then ensue. Three, the citizenry can then decide whether or not to ratify the human rights violations as their own.
Natural Law theorists conversely insist that there are certain fundamental rights from which violation is never necessary and always evil. They dispute the existence of “legal black holes” and deny that “ticking time bomb” situations permit the use of torture or arbitrary killing to obtain forced confessions concerning terrorist activities for the greater good. For instance, David Dyzenhaus (2006) is optimistic that the law can always anticipate and regulate emergency situations, and if it does not, then basic principles of human dignity should not be sacrificed at the altar of political expediency.
However, Thomas Poole (2009) criticises Dyzenhaus’s “emphasis on the idea of legality – the state being completely constituted and circumscribed by principles of natural law – combined with an insistence on a strong resolute role for courts in policing the idea lends itself to a reading that of the theory in which courts are ultimately the first among equals. There is ‘a dismissive tone’ to his analysis of formal rules… and a concomitant reliance on judicial scrutiny via human rights and ‘deep’ common law principles.”
In light of the above jurisprudence, the “Lamu curfew cases” suggest that, in responding to domestic emergencies, the Kenyan sovereign invokes a national security policy that permits “extra-legal measures” in a “legal black hole.” Moreover, while ominous parliamentary silence may be construed as consenting to Executive excesses, the Judiciary has attempted to check overreach, albeit belatedly. One question is whether judicial review underpinned by natural law can impute vicarious liability on Kenya for any civilian injuries inflicted under KDF’s alleged derelict command while undertaking humanitarian intervention. It cannot. That issue is separate from any constitutional limitation of ministerial directives resulting in alleged refugee refoulement.
The facts of the diplomatic spat emerging on November 2, 2016, from Ban Ki Moon’s October decision dismissing Kenya’s Lt. General Johnson Mogoa Kimani Ondieki as Force Commander of the UNMISS, allege failure to protect civilians during the recent upsurge of violence in the capital, Juba. That sacking was predicated upon a report by Dutch Major General (Retired) Patrick Cammaert, Military Advisor to the UN Secretary-General, reviewing the crisis that began in July 2016, soon after Ondieki’s May 2016 appointment. Recommending dismissal, it attributed UNMISS’s abject failure to respond to acts of sexual violence in and around the Protection of Civilians sites in Juba to “chaotic and ineffective” leadership.
Emergency powers and their Limits
The Cammaert Report accused UNMISS of unresponsiveness on July 11 at Terrain camp, which is 1.2 kilometres from UN House as there were approximately 70 civilians inside it when Kiir’s soldiers gained forcible entry. It alleged, “On the uniformed side, the Force did not operate under a unified command, resulting in multiple and sometimes conflicting orders to the four troop contingents from China, Ethiopia, Nepal and India, and ultimately under using the more than 1,800 infantry troops at UN House.” The facts discrediting both the South African government as well as the rebels appear in “The Sentry” report, commissioned by Hollywood actors.
Moving from the known to the unknown requires a journey through emergency time. Given the austere measures which restrict social and political freedoms and their negative impact upon overall social welfare, therefore in most Westminster-modelled, post-independence constitutions, Kenya’s too, a president’s declaration of a state of emergency lasts for a limited duration of 14 (previously seven) days, after which parliamentary consent is necessary. Under the new constitution (as was before), such legislative endorsement lapses after two months, unless extended for a further two months.
Since colonialism, Kenyan application of preservation of public security measures is authorised by legislation. Oketch Owiti and William Mbaya (1997) have analysed its genesis. In 1939, to regulate World War II, insecurity provisions were introduced. Following the War, to deal with the Mau Mau insurrectionaries, emergency provisions were re-enacted and enhanced in the 1950s. 1952-1959 is the longest emergency period in Kenya’s history. Upon its lifting prior to independence, parliamentary oversight of Executive power was strengthened. However, after 1963, the Jomo Kenyatta government acquired unrestricted power to apply detention provisions to any situation that so required. The 1984 Wagalla Massacre may be seen as continued repression after the 1963-1967 secessionist war waged against ethnic Somalis. By 1978, not only North Eastern but also the entire country was under a perpetual state of emergency.
Kenya’s most serious national emergency was declared on August 1, 1982, by President Daniel arap Moi for weeks following an attempted coup d’état. Actual fighting lasted from midnight to midday. Some junior Kenya Air Force soldiers, led by Senior Private Hezekiah Ochuka broadcast their overthrow of the government through the Voice of Kenya. However, Kenya Army Commander Mohammed Mahmoud led loyal officers to crush the mutiny. During that Nairobi skirmish, 200 civilians and 100 soldiers were killed, thousands of people injured, and property damaged and looted. Beyond jailing 900 belligerents, Ochuka and his alleged co-conspirators were mercilessly hanged at the Kamiti Maximum Prison in 1987 following a court-martial.
Humanitarian intervention or sovereign exception?
Due to multiparty democracy’s 1992 resurrection, it was not until the 2014 Lamu curfew that the government formally invoked emergency powers. Conversely, during the March 2008 “Operation Okoa Maisha” at Mt Elgon District, the military aided the police to effectively crush the Sabaot Land Defence Force’s resistance of squatter evictions from Chebyuk Settlement Scheme. Amid hundreds of extrajudicial killings and torture by security forces, over 3,000 men were arbitrarily detained. Without condoning SLDF’s abominable crimes, since no account has been made for the forcible disappearance to date, that State repression has been challenged as being contrary to the International Convention for the Protection of All Persons from Enforced Disappearance.
The Arab Spring suggests that given enhanced global information flows, it is occasionally possible for ethnically and religiously homogenous populations to establish a collective guardian to control executive power or check excesses. Conversely precipitating ethnic passions and polarisation disorganises the Kenyan masses. To restate the question, it is not whether or not there is any oversight mechanism for those who possess delegated powers, but which mechanism is most “effective” in responding so as to provide quick, reliable and just remedies to persons aggrieved by abuse of state power, first in times of normalcy, but more so in times of extraordinary challenges.
Amid globally-interconnected hazards, the sovereign’s use of emergency powers is increasingly circumscribed by international law. Articles 2(5) and (6) of the Constitution provide that treaties are automatically applicable although subject to their domestication by parliament. For example, having ratified the United Nations 1984 Convention Against Torture, the meaning of “cruel, inhuman and degrading treatment and punishment” provided under that instrument is binding on our courts’ interpretation of constitutional Article 29 enshrining “freedom and security of the person.”
In this way, numerous universal principles guide our judges and magistrates on how to “understand” the world, give effect to or refuse application of international norms. Some include the principles of “consistent interpretation,” “legitimate expectation” or “substantive legality.” Take legality: It precludes domestic legislation from explicitly abrogating an international right or duty. Moreover, in the Armed Activities on the Territory of the Congo (2002) (DRC vs. Rwanda), the International Court of Justice reaffirmed that “the underlying principles underlying the Geneva Convention are principles which are recognised by civilised nations as binding upon states, even without any conventional obligation.”
In 2001, the UN Security Council recognised its own power to authorise military intervention under a “responsibility to protect.” It considers factual circumstances in event of genocide, and other large-scale killing, ethnic cleansing or serious human rights violations of international humanitarian law, which sovereign governments have proved powerless or unwilling to protect. Because of this international exception to the prohibition of using force, there arises inherent tension.
On one hand, the Sovereign has exceptional power to suspend the rule of law to preserve peace in national security interests. On the other, a third-party state or states’ also have exceptional power to rescue a people from their own government’s acts or omissions that warrant forceful intervention for humanitarian purposes. Given that third-party states are justified in intervening when domestic checks fail, we require a theory of emergencies that incorporates oversight mechanisms that lie beyond the regulation of domestic checks and balances contained in the traditional separation of powers doctrine.
Having compared jurisprudential arguments and having described the legal provisions regulating formal Kenyan emergencies, it is proposed to apply these standards to evaluate the judicial response to executive counter-terrorism decrees in light of two high court decisions.
On the night of June 15, 2014, some 30 gunmen attacked and selectively killed 59 men and one woman in Mpeketoni, Lamu County, some 240 kilometres north of Mombasa. On June 20, Inspector-General of Police David Kimaiyo imposed a 30-day dusk-to-dawn curfew. Through a memo notice issued by the Cabinet Secretary of Defence on July 7, the KDF were then “deployed in support of the national Police Service in response to the security emergency situation in Lamu County.”
That curfew was extended consecutively until 5th December 2014, when the petitioners in Muslims for Human Rights (Muhuri) and Others vs. Inspector General of Police and Others (2014), H.C. Petition No. 62 (Mombasa), challenged its lawfulness. They reasoned that the Constitution does not recognise curfews and, in any event, imposition of the Lamu curfew “discriminated against Lamu residents on account of their religion, socio-economic activity, and geographical climatic realities.”
Judge Edward Mureithi was prepared to assume that the IG has power to impose a curfew, as “it is a lawful tool for police functionality”, notwithstanding that he considered it to be “one police device for prevention and combat of crime”, and further because the curfew restricted livelihoods such as night fishing, as well as participation in local cultural activities, and may even amount to discrimination, and therefore held that the petitioners had an arguable case. Ultimately, his opinion considered that “saving festivals like ‘Eidd ul Adh’a’ by making exceptions to days, times, areas or regions of the curfew and increasing complementary police surveillance, escort, or community policing may properly amount to far less restrictive means to achieve the purpose of public safety and securing protection of life.”
Hence, on December 23, 2014, issuing an interim conservancy condition, he directed consultations between the parties to revise an agreed scheme of curfew administration of the IG’s June 20, 2014 order, lest it expire after 14 days. Yet by the January 6, 2015 deadline date, the initial scheme remained unchanged. Yet whether or not the respondents were cited for contempt of court is unclear.
Instead, in The Law Society of Kenya vs. Inspector General of Police and Others (2015) H.C. Petition No. 9 of 2014 (Malindi), Judge Said Chitembwe considered the merits of granting permanent conservancy orders to restrain new IG Joseph Boinnet, Attorney General Githu Muigai and the said Cabinet Secretary for Defence Raychelle Omamo not only from continuing with the curfew, but also from deploying the KDF. The latter prayer was rejected. LSK’s former prayer contended that the daily 12-hour curfew subjected Lamu residents to human indignity contrary to Article 28 of the Constitution.
As at December 1, 2014 when the LSK sued, the curfew had restricted six months of free association. Yet Lamu County Police Commissioner Ephantus Eredi swore that its successive extensions were to end on Christmas Eve. They did not. Asserting, “no one should invite the court to intervene,” he refuted the argument that mere absence of curfews elsewhere necessarily made the Lamu orders discriminatory. However, on April 10, 2015, the judge held that “a curfew is an exceptional legal operation and should not be turned into a routine security process.”
He distinguished between states of emergency affecting the entire nation from curfews “limited to a specific area.” Nonetheless, given that the President’s powers to declare a state of emergency are subject to stringent conditions, including parliamentary approval, and cannot exceed two months continuously, so also a curfew could not be extended without any explanation or report. This is because, “A curfew is not intended to be a solution to criminal activities but merely a stop gap measure to allow operations by security organs.”
Chitembwe J found that the Lamu curfew exceeded the principles of proportionality, necessity and accountability by public servants. While the initial curfew may have been warranted, “the subsequent extension required proper explanation to ‘wananchi’ and could not have lasted up to December.” Because “perpetual extension should not be allowed in any open and democratic society based on human dignity, equality and freedom”, and further because “This is contrary to the provisions relating to the state of emergency… which limit the presidential powers… to 14 days”, therefore “the extension of the curfew in Lamu (was) declared unlawful and ended on the April 10, 2015.”
Queries abound. First, why was the errant State spared any order as to costs for the suit or at least condemned to restitute the affected residents for the economic and other harms or losses they suffered? Second, where was Parliament all the while? Why didn’t the people’s representatives raise their voices to impeach the Executive for acting “ultra vires” the Constitution? Third, why did it take so long for the Judiciary to rise to the occasion and reign in the Executive’s perpetual curfew?
Although Judge Chitembwe ruled that “when the defence forces are deployed to restore peace in any part of Kenya affected by unrest and instability under Article 241(3)(c), then prior approval of the National Assembly is required,” Kimaiyo’s early retirement bodes well for the people’s power to either pressure parliament by recalling their MPs in dereliction of duty or ratify executive actions, only if they deem them palatable “ex post facto.”
Return to South Sudan’s civil war, which constitutes a domestic crisis, since ethnic violence attains a threshold of a “humanitarian crisis” warranting international intervention. Yet the UN cannot be sued in domestic courts. The Netherlands Supreme Court (April 2012) held that the UN couldn’t be sued for its failure to protect Bosnian civilian men in Srebrenica, Bosnia-Herzegovina, during a massacre carried out by Serbian forces in July 1995.
In the Haiti cholera suit (August 2016), the US Federal appeals Court upheld the UN’s immunity. Similarly, the Kenyan Judiciary is powerless to prevent the Secretary General’s dismissal of Ondieki and in turn review the Executive’s withdrawal of KDF from South Sudan. However, early action by the SPLM-IO may have conserved Gatdet’s imminent refoulement through judicial review.
Withdrawing the KDF
Perpetual civil war renders South Sudan a failed state. Fortunately, President Kenyatta remains commitment to “work with them bilaterally, in Intergovernmental Authority on Development, the East African Community, where we worked hard to get them, and the African Union.” These legal frameworks may sustain SPLM-IO rebel’s faith that because Kenya respects the rule of law, they may have recourse to either domestic or regional judicial review, at institutions such as the African Court of Justice and Human Rights, to review alleged violation of their human rights by his directive powers.
Simultaneously, however, in retaliation for UN’s “disrespect,” which not only “lacked transparency but (also) did not involve any consultation,” on November 3, the Commander-in-Chief pulled the KDF 1,229 soldiers out of the UN peacekeeping mission in South Sudan. He said the country will no longer contribute to a mission that has failed its mandate and which has now resorted to scapegoating Kenyans.
Reconciling the policies informing the KDF’s withdrawal and Gatdet’s expulsion requires reference to additional fact. A two-year undercover investigation by Hollywood activists George Clooney and John Prendergast’s “Sentry Group,” in September 2016, found that both President Kiir, former vice-president Machar as well as military generals made fortunes while being paid modest government salaries. Using “a network of international facilitators stretched from arms dealers in Ukraine to construction companies in Turkey, mining firms in Kenya, and Chinese investors involved in joint ventures in gambling and private security sectors” in their own country, “they accumulated an array of luxury homes including in Australia, Malaysia, Uganda, and Kenya, a variety of expensive cars and enriched themselves and their families through stakes in oil and other business ventures.”
Yet on November 4, 2016, Kenya’s Parliamentary Committee on Administration and National Security returned from its fact-finding mission threatening only Machar’s camp with travel bans, targeted sanctions and freeze of assets. While both the South Sudanese government and the rebel SPLM-IO applauded Ki-Moon’s dismissal move, Kenya’s Foreign Ministry maintained that the UN acted without consulting Nairobi. Kenya summarily withdrew its troops. It did more. It also arrested the SPLM-IO rebel from his Kileleshwa residence, unceremoniously detained and then deposited him in Juba.
Uneven-handedness demonstrates that recognition has political consequences. Exclusively recognising that the Kiir administration has legal consequences not only of permitting it to access Kenyan territory and control South Sudan’s property, but also of extending diplomatic privileges and immunities of legal value to foreign officials and acts, adverse consequences flow from Machar’s non-recognition.
Thus the sovereign’s double-edged sword is unleashed. One edge effected KDF’s retaliatory withdrawal from UNMISS in South Sudan. No formal report to Parliament was required, as explanation-at-large would suffice for using military power in foreign emergencies. In any event, he is immune. However, the other edge, which allegedly refouled Gatdet, may attract domestic or regional claims under international humanitarian law.
Writer is Andrew W. Mellon Postdoctoral Fellow at Rhodes University