On the morning of June 26, 2024, Kenya witnessed a significant and rapid decision by the National Assembly: the authorization of the Kenya Defence Forces (KDF) deployment in response to violent protests against the controversial Finance Bill 2024. This decision, enacted in record time, has raised numerous questions and concerns about the constitutional and legal underpinnings of such military involvement in domestic affairs.
The Constitutional Basis for Kenya Defence Forces (KDF) Deployment
The deployment of the KDF within Kenya is governed by Article 241 of the Kenyan Constitution, which outlines specific scenarios where military intervention is permissible. The Constitution provides two primary conditions under which the KDF can be deployed domestically:
- Support in Emergency Situations: Article 241(3)(b) states that the KDF can assist and cooperate with other authorities in situations of emergency or disaster. Such deployments must be reported to the National Assembly.
- Restoration of Peace: Article 241(3)(c) specifies that the KDF may be deployed to restore peace in any part of Kenya affected by unrest or instability, but only with the approval of the National Assembly.
The Legal Framework: Kenya Defence Forces Act
The procedures for deploying the Kenya Defence Forces (KDF) in support of the National Police Service are detailed in the Kenya Defence Forces Act. Notably:
- Section 34(1) mandates that any deployment of the Kenya Defence Forces (KDF) must adhere to constitutional standards, respecting human rights and fundamental freedoms.
- Section 34(2) requires the Defence Cabinet Secretary to gazette the deployment within twenty-four hours of its commencement and discontinuation, ensuring transparency and accountability.
- Section 35 outlines the powers and duties of Kenya Defence Forces (KDF) members during deployment, aligning them with those of the National Police Service while restricting investigative duties.
The 2024 Deployment Context
In response to violent protests against the Finance Bill 2024, Defence Cabinet Secretary Aden Duale invoked Article 241(3)(b) of the Constitution. The deployment, as stated in the gazette notice, was necessary to address the security emergency caused by the protests, which resulted in significant destruction and disruption.
Despite this constitutional backing, the decision faced criticism. Critics argued that the deployment under Article 241(3)(c) required prior approval from the National Assembly, a step that appeared to be expedited or bypassed in this instance. This rapid deployment, completed in a special sitting of the National Assembly, raised concerns about adherence to the proper legislative process and the potential implications for civil liberties and democratic governance.
Parliamentary Proceedings and Reactions
National Assembly Majority Leader Kimani Ichung’wah tabled a motion to ratify the deployment, emphasizing national security concerns. The motion read:
“THAT, pursuant to Article 241(3)(c) of the Constitution and sections 31(1)(b), 31(1)(c), and 32 of the Kenya Defence Forces Act, Cap. 199, this House accedes to the request of the Defence Council dated 26th June 2024 and, in the interest of the nationa security, APPROVES the deployment of the Kenya Defence Forces (KDF) in support of the National Police Service in various parts of the Republic of Kenya affected by ongoing violent protests that have caused destruction to critical infrastructure until normalcy is restored.”
This swift action, while addressing immediate security concerns, prompted mixed reactions from the public and legal experts. Critics like Lawyer Donald Kipkorir underscored that any deployment to restore peace necessitates prior parliamentary approval, highlighting potential constitutional overreach.
Conclusion
The deployment of the Kenya Defence Forces (KDF) in response to the Finance Bill 2024 protests underscores the delicate balance between maintaining national security and upholding constitutional processes and civil liberties. While the urgency of the situation justified rapid action, the debate around this deployment reflects broader concerns about transparency, legislative oversight, and the rule of law in Kenya.
As Kenya navigates these turbulent times, it remains crucial for all actions, especially those involving military intervention in civilian matters, to adhere strictly to constitutional provisions and legal frameworks to preserve democracy and protect the rights of its citizens.
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