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Can KDF be deployed against protestors after MPs allow it then a court order blocks it?

Introduction

The deployment of the Kenya Defence Forces (KDF) within the country, particularly in situations involving civil unrest or protests, is a matter governed by various legal provisions in the Constitution of Kenya, 2010, and other relevant statutes. This response will explore the legal framework surrounding the deployment of the KDF, the role of Parliament, and the judiciary's power to issue orders that may block such deployment.

Table of Contents

  1. Legal Framework for Deployment of KDF

    • 1.1 Constitution of Kenya, 2010

    • 1.2 Kenya Defence Forces Act, 2012

    • 1.3 National Security Council

  2. Role of Parliament in Deployment of KDF

    • 2.1 Parliamentary Approval

    • 2.2 Oversight Functions

  3. Judiciary's Role in Blocking Deployment

    • 3.1 Judicial Review

    • 3.2 Court Orders and Injunctions

  4. Conclusion

1. Legal Framework for Deployment of KDF

1.1 Constitution of Kenya, 2010

The Constitution of Kenya, 2010, is the supreme law of the land and provides the primary legal framework for the deployment of the KDF. Key provisions include:

  • Article 241(3): This article outlines the primary functions of the KDF, which include defending and protecting the sovereignty and territorial integrity of Kenya, assisting and cooperating with other authorities in situations of emergency or disaster, and restoring peace in any part of Kenya affected by unrest or instability.

  • Article 241(4): This article stipulates that the KDF may be deployed to restore peace in any part of Kenya only with the approval of the National Assembly.

1.2 Kenya Defence Forces Act, 2012

The Kenya Defence Forces Act, 2012, provides further details on the deployment of the KDF. Relevant sections include:

  • Section 33: This section outlines the circumstances under which the KDF may be deployed within Kenya, including situations of emergency, disaster, or unrest.

  • Section 34: This section requires that any deployment of the KDF within Kenya must be reported to the National Assembly within 24 hours, and the Assembly must approve the deployment within seven days.

1.3 National Security Council

The National Security Council (NSC) plays a crucial role in the deployment of the KDF. According to Article 240 of the Constitution:

  • The NSC is responsible for exercising supervisory control over national security organs, including the KDF.

  • The NSC advises the President on matters of national security, including the deployment of the KDF.

2. Role of Parliament in Deployment of KDF

2.1 Parliamentary Approval

As stipulated in Article 241(4) of the Constitution and Section 34 of the Kenya Defence Forces Act, the deployment of the KDF within Kenya requires the approval of the National Assembly. This process involves:

  • The President, upon the advice of the NSC, may decide to deploy the KDF.

  • The President must then seek the approval of the National Assembly within 24 hours of the deployment.

  • The National Assembly must deliberate and either approve or disapprove the deployment within seven days.

2.2 Oversight Functions

Parliament also has an oversight role to ensure that the deployment of the KDF is conducted lawfully and in accordance with the Constitution. This includes:

  • Reviewing reports on the deployment and operations of the KDF.

  • Ensuring that the deployment is necessary and proportionate to the situation at hand.

3. Judiciary's Role in Blocking Deployment

3.1 Judicial Review

The judiciary has the power to review the actions of the executive and legislative branches to ensure compliance with the Constitution. This power is derived from Article 165 of the Constitution, which grants the High Court jurisdiction to hear and determine questions regarding the interpretation of the Constitution, including the legality of the deployment of the KDF.

3.2 Court Orders and Injunctions

In situations where the deployment of the KDF is challenged, the judiciary can issue court orders or injunctions to block such deployment. This process involves:

  • Filing a petition or application in the High Court challenging the legality or constitutionality of the deployment.

  • The court may issue an interim order or injunction to temporarily block the deployment pending the determination of the case.

  • The court will then hear the case and make a final determination on whether the deployment is lawful.

Conclusion

In summary, the deployment of the KDF within Kenya, particularly in response to protests, is governed by a robust legal framework that involves the Constitution, the Kenya Defence Forces Act, and the oversight of the National Security Council and Parliament. While Parliament has the authority to approve such deployment, the judiciary has the power to review and potentially block it through court orders or injunctions. This system of checks and balances ensures that the deployment of the KDF is conducted lawfully and in accordance with the principles of the Constitution.

Sources:

  • Constitution of Kenya, 2010: Articles 240, 241, 165

  • Kenya Defence Forces Act, 2012: Sections 33, 34

Answered by mwakili.com