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Can the parliament declare war?

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Introduction

The question of whether the Parliament of Kenya can declare war is a significant one, touching on the constitutional and legal frameworks that govern the country's engagement in armed conflict. This response will delve into the relevant provisions of the Constitution of Kenya, 2010, and other pertinent legal instruments to provide a comprehensive answer.

Constitutional Provisions
- 1.1 Article 95: Role of the National Assembly
- 1.2 Article 132: Powers of the President
- 1.3 Article 240: National Security Council
- 1.4 Article 241: Kenya Defence Forces
Role of the National Assembly
- 2.1 Approval of Declarations of War
- 2.2 Oversight Functions
Role of the President
- 3.1 Commander-in-Chief of the Kenya Defence Forces
- 3.2 Declaration of War and State of Emergency
Role of the National Security Council
- 4.1 Advisory Functions
- 4.2 Coordination of National Security
Conclusion

1. Constitutional Provisions

1.1 Article 95: Role of the National Assembly

Article 95 of the Constitution of Kenya, 2010, outlines the roles and responsibilities of the National Assembly. Among its various functions, the National Assembly is tasked with:

Representation of the People: The National Assembly represents the people of the constituencies and special interests in the National Assembly.
Legislative Authority: It exercises legislative authority by enacting laws.
Oversight of National Revenue and Expenditure: It oversees the national revenue and its expenditure.
Approval of Declarations of War and States of Emergency: According to Article 95(6), the National Assembly has the power to approve declarations of war and states of emergency.

1.2 Article 132: Powers of the President

Article 132 of the Constitution outlines the functions and powers of the President of Kenya. Among these powers, the President has the authority to:

Exercise Executive Authority: The President exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries.
Declare War and State of Emergency: Under Article 132(4)(d), the President has the power to declare war and a state of emergency, with the approval of the National Assembly and the Senate.

1.3 Article 240: National Security Council

Article 240 establishes the National Security Council (NSC), which is responsible for:

Supervision of National Security Organs: The NSC exercises supervisory control over national security organs.
Integration of National Security Policies: It integrates the domestic, foreign, and military policies relating to national security.
Advisory Role: The NSC advises the President on matters of national security.

1.4 Article 241: Kenya Defence Forces

Article 241 establishes the Kenya Defence Forces (KDF) and outlines its functions, which include:

Defence and Protection: The KDF is responsible for the defence and protection of the sovereignty and territorial integrity of the Republic.
Assistance in Emergencies: The KDF may assist in situations of emergency or disaster.

2. Role of the National Assembly

2.1 Approval of Declarations of War

The National Assembly plays a crucial role in the declaration of war. According to Article 95(6) of the Constitution, the National Assembly must approve any declaration of war made by the President. This provision ensures that the decision to go to war is not solely in the hands of the executive but involves the representatives of the people.

2.2 Oversight Functions

In addition to approving declarations of war, the National Assembly has an oversight role over the executive. This includes:

Monitoring the Conduct of War: The National Assembly can monitor and review the conduct of war to ensure that it aligns with national interests and legal standards.
Budgetary Oversight: The National Assembly oversees the allocation and expenditure of funds related to military operations.

3. Role of the President

3.1 Commander-in-Chief of the Kenya Defence Forces

The President of Kenya, as per Article 132 and Article 241, is the Commander-in-Chief of the Kenya Defence Forces. This position grants the President the authority to direct the military and make strategic decisions regarding national defense.

3.2 Declaration of War and State of Emergency

While the President has the power to declare war, this declaration is not unilateral. Article 132(4)(d) stipulates that the President must seek the approval of both the National Assembly and the Senate. This requirement ensures a system of checks and balances, preventing the misuse of executive power.

4. Role of the National Security Council

4.1 Advisory Functions

The National Security Council (NSC) plays an advisory role to the President on matters of national security. This includes:

Assessment of Threats: The NSC assesses threats to national security and advises the President on appropriate responses.
Strategic Planning: The NSC is involved in the strategic planning of military operations and national defense policies.

4.2 Coordination of National Security

The NSC coordinates the activities of various national security organs, ensuring a unified and coherent approach to national defense. This coordination is crucial during times of war, as it ensures that all security agencies work together effectively.

5. Conclusion

In summary, while the President of Kenya has the authority to declare war, this power is not absolute and requires the approval of the National Assembly and the Senate. The National Assembly plays a critical role in this process, representing the will of the people and providing a check on executive power. The National Security Council also plays a vital role in advising the President and coordinating national security efforts. This system of checks and balances is designed to ensure that the decision to go to war is made with careful consideration and broad consensus.

By involving multiple branches of government in the decision-making process, the Constitution of Kenya, 2010, aims to prevent the arbitrary use of military force and to uphold democratic principles.