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

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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 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 affect such deployment.

Legal Framework for Deployment of KDF
- 1.1 Constitution of Kenya
- 1.2 Kenya Defence Forces Act
- 1.3 National Security Council
Role of Parliament in Deployment of KDF
- 2.1 Parliamentary Approval
- 2.2 Oversight Functions
Judiciary's Role in Blocking Deployment
- 3.1 Judicial Review
- 3.2 Court Orders and Injunctions
Conclusion

1. Legal Framework for Deployment of KDF

1.1 Constitution of Kenya

The Constitution of Kenya, 2010, provides the primary legal framework for the deployment of the KDF. Key articles include:

Article 241(3): This article outlines the primary functions of the KDF, which include the defense and protection of the sovereignty and territorial integrity of the Republic, 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 affected by unrest or instability only with the approval of the National Assembly.

1.2 Kenya Defence Forces Act

The Kenya Defence Forces Act, 2012, further elaborates on the procedures and conditions under which the KDF can be deployed. Relevant sections include:

Section 33: This section provides that the KDF can be deployed for internal security operations with the approval of the National Assembly.
Section 34: This section outlines the procedures for the deployment of the KDF, including the requirement for a formal request from the relevant civil authority and the subsequent approval by the National Assembly.

1.3 National Security Council

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

Article 240(8): The NSC is responsible for integrating domestic, foreign, and military policies relating to national security to enable the security services to cooperate and function effectively.
Article 240(9): The NSC may, with the approval of Parliament, deploy the KDF in situations of emergency or disaster, or to restore peace in any part of Kenya affected by unrest or instability.

2. Role of Parliament in Deployment of KDF

2.1 Parliamentary Approval

The deployment of the KDF within Kenya requires the approval of the National Assembly. This is a constitutional safeguard to ensure that the use of military force within the country is subject to civilian oversight. The relevant provisions include:

Article 241(4) of the Constitution: This article mandates that the KDF can only be deployed to restore peace with the approval of the National Assembly.
Section 33 of the Kenya Defence Forces Act: This section reiterates the requirement for parliamentary approval for internal security operations.

2.2 Oversight Functions

Parliament also has an oversight role to ensure that the deployment of the KDF is conducted in accordance with the law and respects human rights. This includes:

Article 95(5)(b) of the Constitution: This article empowers the National Assembly to exercise oversight over national revenue and its expenditure, which includes funding for military operations.
Article 95(6): This article allows the National Assembly to review the conduct of the President and other state officers, including decisions related to the deployment of the KDF.

3. Judiciary's Role in Blocking Deployment

3.1 Judicial Review

The judiciary has the power to review the legality of decisions made by the executive and legislative branches of government, including decisions related to the deployment of the KDF. Relevant provisions include:

Article 165(3)(d) of the Constitution: This article grants the High Court jurisdiction to hear any question regarding the interpretation of the Constitution, including the question of whether any law or action is inconsistent with or in contravention of the Constitution.
Article 23(1): This article empowers the High Court to hear and determine applications for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

3.2 Court Orders and Injunctions

The judiciary can issue orders, including injunctions, to prevent the deployment of the KDF if it finds that such deployment is unconstitutional or violates human rights. Relevant provisions include:

Article 23(3) of the Constitution: This article provides the High Court with the authority to grant appropriate relief, including a declaration of rights, an injunction, a conservatory order, or an order of judicial review.
Article 165(6): This article grants the High Court supervisory jurisdiction over subordinate courts and any person, body, or authority exercising a judicial or quasi-judicial function.

Conclusion

In summary, the deployment of the KDF against protestors within Kenya involves a complex interplay of constitutional provisions, statutory requirements, and the roles of various state organs. The Constitution of Kenya and the Kenya Defence Forces Act provide a clear legal framework for such deployment, requiring the approval of the National Assembly and the involvement of the National Security Council. However, the judiciary has the power to review and potentially block such deployment if it is found to be unconstitutional or in violation of human rights. This system of checks and balances ensures that the use of military force within the country is subject to rigorous oversight and legal scrutiny.