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Is the president allowed to call the KDF on protestors?

Introduction

In Kenya, the deployment of the Kenya Defence Forces (KDF) in response to civil unrest, including protests, is a matter governed by both constitutional and statutory provisions. The President, as the Commander-in-Chief of the Defence Forces, holds significant authority over the deployment of the KDF. However, this authority is not absolute and is subject to various legal and procedural constraints designed to ensure that such deployments are justified, necessary, and conducted within the bounds of the law.

Table of Contents

  1. Constitutional Provisions

  2. Statutory Provisions

  3. Historical Context and Precedents

  4. Legal and Ethical Considerations

  5. Conclusion

1. Constitutional Provisions

The Constitution of Kenya, 2010, provides the primary legal framework for the deployment of the KDF. Article 241(3) of the Constitution outlines the functions of the KDF, which include:

  • Defending and protecting the sovereignty and territorial integrity of Kenya.

  • Assisting and cooperating with other authorities in situations of emergency or disaster.

  • Restoring peace in any part of Kenya affected by unrest or instability.

However, the deployment of the KDF for internal security purposes, such as managing protests, requires adherence to specific procedures. Article 241(3)(c) stipulates that the KDF can be deployed to restore peace in any part of Kenya only with the approval of the National Assembly.

Source:

  • Constitution of Kenya, 2010

2. Statutory Provisions

The Kenya Defence Forces Act, 2012, further elaborates on the conditions under which the KDF can be deployed internally. Section 33 of the Act provides that the President may, with the approval of the National Assembly, deploy the KDF in situations where:

  • There is a threat to national security.

  • There is a need to restore peace and order.

  • There is a need to support other security agencies in maintaining law and order.

The Act also requires that any deployment of the KDF for internal security purposes must be reported to the National Assembly within seven days, and the deployment must be reviewed and approved by the Assembly.

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3. Historical Context and Precedents

Historically, the deployment of the KDF in response to protests has been a contentious issue in Kenya. For instance, during the post-election violence in 2007-2008, there were calls for the deployment of the military to restore order. However, such deployments have often been met with criticism and concerns about human rights violations.

In recent years, the government has been cautious about deploying the KDF for internal security purposes, preferring to rely on the National Police Service and other security agencies. This cautious approach is partly due to the legal and ethical implications of using military force against civilians.

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4. Legal and Ethical Considerations

The deployment of the KDF in response to protests raises several legal and ethical considerations:

  • Proportionality and Necessity: The use of military force must be proportionate to the threat posed by the protests and necessary to restore order. Excessive use of force can lead to human rights violations and loss of civilian lives.

  • Accountability: The deployment of the KDF must be subject to oversight and accountability mechanisms to ensure that the actions of the military are lawful and justified.

  • Human Rights: The deployment must respect the fundamental rights and freedoms of individuals, including the right to peaceful assembly and freedom of expression.

The Constitution and the Kenya Defence Forces Act provide safeguards to ensure that the deployment of the KDF is conducted within the bounds of the law and with respect for human rights.

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Conclusion

In conclusion, while the President of Kenya has the authority to deploy the Kenya Defence Forces in response to protests, this authority is subject to constitutional and statutory constraints. The deployment must be approved by the National Assembly and conducted in a manner that respects the rule of law and human rights. The legal framework aims to balance the need for maintaining public order with the protection of individual freedoms and rights.

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Answered by mwakili.com