Ask a lawyer:
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) in response to civil unrest, such as protests, is a matter governed by both statutory and constitutional provisions in Kenya. The recent events surrounding the approval by Members of Parliament (MPs) for the deployment of KDF to manage protests, followed by a court order blocking such deployment, raise significant legal questions. This response will explore the legal framework governing the deployment of KDF, the role of the judiciary in such matters, and the implications of conflicting decisions by different branches of government.
Table of Contents
Legal Framework for KDF Deployment
Role of the Judiciary
Implications of Conflicting Decisions
Conclusion
1. Legal Framework for KDF Deployment
1.1 Constitutional Provisions
The deployment of the Kenya Defence Forces is primarily governed by the Constitution of Kenya, 2010. Article 241(3) of the Constitution stipulates that the KDF may be deployed for various purposes, including:
Defence of the Republic of Kenya against external aggression.
Restoration of peace in any part of Kenya affected by unrest or instability.
Support of the National Police Service in maintaining law and order.
However, such deployment must be authorized by the National Security Council and approved by Parliament.
(Source: Kenya Law - Constitution of Kenya, 2010 ↗)
1.2 Statutory Provisions
The Kenya Defence Forces Act, 2012, further elaborates on the conditions and procedures for the deployment of KDF. Section 33 of the Act requires that any deployment for purposes other than defence against external aggression must be approved by the National Assembly.
(Source: [Kenya Defence Forces Act, 2012](http://www.kenyalaw.org/lex/actview.xql?actid=No ↗. 25 of 2012))
2. Role of the Judiciary
2.1 Judicial Review
The judiciary in Kenya has the power to review decisions made by other branches of government, including the executive and the legislature. This power is enshrined in Article 165(3) of the Constitution, which grants the High Court jurisdiction to hear and determine questions regarding the constitutionality of any act or omission.
(Source: Kenya Law - Constitution of Kenya, 2010 ↗)
2.2 Recent Court Orders
In the recent scenario, a court order was issued blocking the deployment of KDF despite the approval by MPs. The court's decision was based on the argument that the deployment did not meet the constitutional and statutory requirements, particularly the necessity and proportionality of using military force in managing civil protests.
(Source: Nairobi Law Monthly ↗)
3. Implications of Conflicting Decisions
3.1 Legal Implications
The conflicting decisions between the legislative approval and the judicial block create a legal impasse. According to the principle of separation of powers, each branch of government has distinct and independent powers and areas of responsibility. However, the judiciary's role in interpreting the law means that its decisions can override those of the legislature if found unconstitutional.
3.2 Practical Implications
In practice, the court's order blocking the deployment of KDF must be respected unless overturned by a higher court. This means that, despite the MPs' approval, the KDF cannot be legally deployed against protestors until the court's decision is either complied with or successfully appealed.
Conclusion
The deployment of the Kenya Defence Forces against protestors, even with parliamentary approval, can be legally blocked by a court order if it is found to contravene constitutional or statutory provisions. The judiciary's role in reviewing such decisions ensures that the deployment of military forces within the country adheres to the rule of law and respects the rights of citizens. Therefore, in the current scenario, the KDF cannot be deployed against protestors until the legal issues are resolved.
Sources
[Kenya Defence Forces Act, 2012](http://www.kenyalaw.org/lex/actview.xql?actid=No ↗. 25 of 2012)
Answered by mwakili.com