Ask a lawyer:
Can KDF be deployed against protestors after MPs allow it then a court order blocks it?
Table of Contents
Introduction
Deployment of the Kenya Defence Forces (KDF)
Judicial Review of Deployment of KDF
Conclusion
Introduction
This response will address the question of whether the Kenya Defence Forces (KDF) can be deployed against protestors after Members of Parliament (MPs) authorize it, but a court order subsequently blocks the deployment. This question delves into the delicate balance between the powers of the legislature, the executive, and the judiciary in Kenya, particularly in situations involving public order and security.
1. Deployment of the Kenya Defence Forces (KDF)
The deployment of the KDF within Kenya is governed by the Constitution of Kenya, 2010 and the Kenya Defence Forces Act, 2012.
1.1. Constitutional Provisions
Article 241(1) of the Constitution: This article grants the President the power to deploy the KDF in Kenya "to suppress insurrection or restore order" if the President is satisfied that the situation cannot be handled by the police.
Article 241(2) of the Constitution: This article requires the President to inform the National Assembly of the deployment of the KDF within Kenya.
1.2. Statutory Provisions
Section 10 of the Kenya Defence Forces Act, 2012: This section outlines the circumstances under which the KDF can be deployed within Kenya, including:
To suppress insurrection or restore order.
To assist the police in maintaining law and order.
To provide humanitarian assistance.
To perform other duties as may be prescribed by law.
1.3. Parliamentary Approval
Article 241(3) of the Constitution: This article requires the National Assembly to approve the deployment of the KDF within Kenya for a period not exceeding six months. The National Assembly can extend the deployment for further periods of six months.
1.4. Role of the Executive
The President, as the Commander-in-Chief of the Armed Forces, has the ultimate authority to deploy the KDF.
The Cabinet Secretary for Defence is responsible for the administration and management of the KDF.
2. Judicial Review of Deployment of KDF
The deployment of the KDF is subject to judicial review. This means that the courts can review the legality of the deployment and determine whether it is consistent with the Constitution and other relevant laws.
2.1. Grounds for Judicial Review
Illegality: The deployment may be illegal if it is not authorized by the Constitution or the Kenya Defence Forces Act.
Irrationality: The deployment may be irrational if it is not based on reasonable grounds or if it is disproportionate to the threat.
Procedural Impropriety: The deployment may be procedurally improper if the required procedures, such as parliamentary approval, have not been followed.
2.2. Remedies
Injunction: The court can issue an injunction to prevent the deployment of the KDF.
Declaration: The court can issue a declaration that the deployment is illegal.
Quashing Order: The court can quash the decision to deploy the KDF.
3. Conclusion
In the scenario presented, where MPs authorize the deployment of the KDF against protestors but a court order subsequently blocks it, the court's order would prevail. The courts have the power to review the legality of the deployment and to issue orders to prevent it if it is found to be unlawful. The deployment of the KDF is subject to the rule of law and must be consistent with the Constitution and other relevant laws.
The court's decision would be based on the specific facts of the case and the legal arguments presented. The court would consider whether the deployment was authorized by the Constitution and the Kenya Defence Forces Act, whether it was necessary and proportionate, and whether the required procedures were followed.
It is important to note that the deployment of the KDF is a serious matter with significant implications for the rule of law and the rights of citizens. The courts play a crucial role in ensuring that the deployment of the KDF is lawful and justified.
Answered by mwakili.com