The Law Society of Kenya suffered a setback when the High Court sitting in Nairobi on Thursday, June 27, ruled that the deployment of Kenya Defence Forces (KDF) soldiers to help police quell violent protests was “necessary”.
On Tuesday night, Defence Cabinet Secretary Aden Duale published a Special Gazette notice announcing that KDF soldiers would be deployed the following day “in support of the National Police Service in response to the security emergency caused by the ongoing violent protests in various part of the Republic of Kenya resulting in destruction and breaching of criticial infrastructure.”
Since the law requires Parliamentary approval for military deployment, the following morning, Speaker Moses Wetang’ula convened a special session of the National Assembly to approve the deployment, which had already sparked protests from various organisations, including LSK.
“This House accedes to the request of the Defence Council dated 26th June 2024 and, in the interest of national security, approves the deployment of the Kenya Defence Forces (KDF) in support of the National Police Service in various parts of the Republic of Kenya affected by ongoing violent protests… until normalcy returns,” Parliament said in a communication citing the relevant laws.
The sparked protests from among others, Rarieda MP Otiende Amollo.
“And, without the media, without most members, without proper debate, in a record 30 minutes, National Assembly has just made Kenya a military State; authorizing deployment of KDF without indicating where, why or for what period,” the MP said on X.
According to him, the law was being applied retrospectively, which, he said, was irregular and illegal.
Later in the day, Ms Faith Odhiambo, on behalf of LSK, filed a petition in the High Court seeking a declaration that Mr Duale’s Gazette notice was illegal and asked the court to suspend it.
And in a virtual hearing attended by 1,000 people on Thursday, Justice Lawrence Mugambi said that the deployment was necessary to preserve peace.
He, however, agreed that the fears raised by LSK were not idle and there was need to clearly outline what the soldier would do, how they would operate and for how long they would be assisting the police.
“Deploying the military in a blanket manner without stating the scope, duration and expense and the manner of deployment is a dangerous trend that can bring about militarization of the country,” he said during the hearing that extended early into the night.
Attorney-General Justin Muturi’s office, through lawyer Emmanuel Bita, had argued that the deployment was necessary because protesters had invaded Parliament and the Office of the Chief Justice at the Supreme Court.
Judge Mugambi said the court was caught in the horns of a dilemma because of the competing rights to picket and demonstrate on the one hand and the need to protect property on the other.
He directed Mr Duale to Gazette the scope of the deployment within two days.
In another case, in which politician Saitabao ole Kanchori has sued the Inspector-General of Police, Mr Japhet Koome, and the National Police Service, accusing them of human rights violations during the quelling of the violent protests that led to at least 23 deaths, Lady Justice Mugure ordered the police not to use excessive force in quelling protests.
Mr Saitabao had asked the court to prohibit the police from using water cannons, tear gas, live ammunition, rubber bullets or other crude weapons “or draconian measures and from deploying brute force or any form of violence against persons exercising their constitutional rights to protest against the Finance Bill, 2024.”
He had also asked the court for a declaration that “the extrajudicial killing, arrest, abduction, detention, harassment, intimidation, torture, cruel, inhuman and degrading treatment” of persons protesting against the Bill be declared “a gross violation of the Constitution”.
On Friday, June 28, the judge granted the two orders. She also directed the petitioner to serve all the parties by Monday, July 1. The respondents will have 14 days to reply after which the case will be heard on July 17.
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