LSK Respects but Disagrees with Court’s Verdict on Army Deployment
The Law Society of Kenya is under the wise and able Leadership of the Honourable President Hon. Faith Odhiambo. This is her views on military deployment:
“The High Court has this evening rendered a ruling on the application by the Law Society of Kenya for conservatory orders against the deployment of the military to assist police in maintaining order. This measure was taken in pursuance of the Gazette Notice by the Minister of Defense on 24th June 2024 and the retroactive approval by the National Assembly through a sitting that was anything but parliamentary. Our petition impugns the procedure in the manner that this drastic measure was undertaken, lack of clarity in its scope and that it is disproportionate in the circumstances. This measure was taken in haste and irrationally in response to the tension caused by the recent wave of protests against the enactment of the Finance Bill 2024. There is no evidence of due consideration by the state organs, security council or parliament prior gazettment as contemplated by the Constitution.
The Judge in his ruling agreed with our arguments that the deployment fell short of the rigorous stipulations of Article 241 and relevant provisions of the Kenya Defense Forces Act. The court found that that the gazette notice engendered uncertainty as to scope, terms, conduct and timeframe. Court however held the view that the deployment is necessitated due to the circumstances that arose on Tuesday where the police appeared unable to control protestors.
The Constitution of Kenya 2010 provides an elaborate threshold of what constitutes an emergency that necessitates deployment of the military. The Judge appreciated that such deployment can amount in a rift between the citizens and the military who ought to protect them. In order to forestall the mischief, the Court maintained that the same can be remedied by a more detailed enumeration of the terms, scope, areas and duration of the deployment. Accordingly, the court has ordered that the Defence CS issues a new gazzette notice, within 2 days, highlighting clear terms of the deployment to enable the Public be adequately appraised.
The Law Society of Kenya respects but disagrees with the ruling of the court. Whereas article 241(3) contemplates deployment of the military where there is instability, unrest and situations of emergency, it is an incurably dangerous precedent for the threshold to be interpreted as being as low as the position taken by the court in today’s ruling. The present action by the state is both procedurally unsound, not in conformity with article 241 and is outright disproportionate. In our view, the drastic measure of inviting military intervention in a controversy that is primarily political should not be taken lightly. Our defense forces is highly respected for its independence, professionalism, impartiality and respect for civilian rule. We should not taint it by liberally interpreting the limited scope of Article 241.
We maintain that the violence that has been witnessed during the protests has been perpetuated by or as a reaction to excesses of police force and arbitrariness. While the disruption of both public and private property and infrastructure is unacceptable, there is no evidence to indicate that the police are incapable of containing the current situation if they perform their duties within the limitations of the law.
We respectfully disagree with the court. We also express our reservations in the delay by the court to issue the full reasoned version in order to enable us to evaluate the options available to the Law Society. We commit to consider the written ruling and take the next course of action in defense of the Constitution and the rule of law.”
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