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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 against protestors, is a matter that involves both legislative and judicial oversight. This issue has recently come to the forefront due to the ongoing protests against the Finance Bill 2024. The question at hand is whether the KDF can be deployed against protestors if Members of Parliament (MPs) approve the deployment but a court order subsequently blocks it.

Table of Contents

  1. Legislative Authority for KDF Deployment

  2. Judicial Oversight and Court Orders

  3. Recent Developments and Legal Challenges

  4. Conclusion

1. Legislative Authority for KDF Deployment

The deployment of the KDF within Kenya is governed by the Constitution of Kenya and other relevant statutes. According to Article 241(3) of the Constitution, the KDF may be deployed for various purposes, including:

  • Defense of the Republic against external aggression.

  • Assistance to the National Police Service in maintaining law and order.

  • Participation in disaster management and humanitarian assistance.

The deployment of the KDF for internal security purposes, such as quelling protests, requires the approval of the National Assembly. This legislative oversight ensures that the deployment is subject to democratic scrutiny and is not used arbitrarily.

Sources:

  • Constitution of Kenya, Article 241(3) ↗

2. Judicial Oversight and Court Orders

While the National Assembly has the authority to approve the deployment of the KDF, such decisions are subject to judicial review. The judiciary, as an independent arm of government, has the power to review the legality and constitutionality of executive and legislative actions. This includes the deployment of the KDF.

If a court finds that the deployment of the KDF violates constitutional provisions or other legal standards, it can issue orders to block or suspend the deployment. Such court orders are binding and must be complied with by all state organs, including the executive and the military.

Sources:

3. Recent Developments and Legal Challenges

In the context of the recent protests against the Finance Bill 2024, the National Assembly approved the deployment of the KDF to assist the National Police Service in maintaining order. However, this decision has faced legal challenges.

The Law Society of Kenya (LSK) and other civil society organizations filed petitions challenging the deployment. They argued that the deployment was unconstitutional and that it violated the rights of peaceful protestors. The High Court of Kenya issued an order to block the deployment, pending the hearing and determination of the petitions.

This situation highlights the tension between legislative authority and judicial oversight. While MPs have the power to approve the deployment, the judiciary has the final say on its legality. The court's order to block the deployment must be respected, and any deployment of the KDF in defiance of such an order would be illegal.

Sources:

Conclusion

In summary, while the National Assembly has the authority to approve the deployment of the KDF within Kenya, such decisions are subject to judicial review. If a court issues an order blocking the deployment, that order must be respected and complied with. The recent legal challenges to the deployment of the KDF against protestors underscore the importance of judicial oversight in ensuring that such deployments are lawful and do not infringe on constitutional rights.

Sources:

Answered by mwakili.com