High Court Judge Lawrence Mugambi on Thursday found that the state did not err in deploying Kenya Defence Forces internally to help quell chaos arising from widespread anti-tax protests.
In a case pitting the Law Society of Kenya, the State Law Office, the Cabinet Secretary for Defence, and three others, Judge Mugambi indicated that KDF can operate alongside police for a further two days during which the military will assist in restoration and maintenance of law and order.
“The intervention of the military in supporting the National Police is necessary in view of the need to preserve order, peace, public safety, and critical infrastructure as it is in conformity with the Constitution and the relevant statute and was properly invoked,” the judge ruled
While granting the deployment, he acknowledged that the court was faced with two competing constitutional values, the need to protect life and property, preserve peace, order, and public safety, and the need to uphold, to protect the open public expression by the citizenry in a democratic state.
“The court must uphold the right of the individual citizen to assemble, demonstrate, and picket under article 37 of the Constitution, but it must also be conscious of the fact that if expressed in a dangerous manner that endangers peace order, and public safety that can cause substantial harm that cannot certainly be within the prescribed boundaries of expression,” ruled Judge Mugambi
The judge, however, directed the government to provide details on the duration of deployment, areas targeted, and why military deployment is a necessity. The petitioner, LSK, has argued that the intervention of the military to support the police would cause fear and intimidation to Kenyans and prevent them from expressing themselves. And the judge agrees.
According to the Judge, deploying the military in a blanket manner without defining the scope or nature of the intervention, and the duration of such intervention is a dangerous trend that can bring about militarization of the country which is antithetical to the enjoyment of rights and freedoms.
“That it is hereby directed that the terms of military engagement, duration of engagement be clearly defined and gazetted within the next two days to alleviate public fear that their constitutional liberties could be in jeopardy and also to give public confidence that their liberties will be observed during the duration of military engagement,” he ruled
He also made it clear that the Court retains residual powers of oversighting the military deployment on the observance of human rights and that the case file shall remain open during the course of the Petition to receive and deal with any complaints of violation for as long as the military intervention lasts.
As to whether the Cabinet Secretary for Defense Aden Duale acted lawfully in his Gazette Notice on June 25 that deployed KDF to support the National Police Service “in response to a security emergency caused by violent protests” in various parts of Kenya resulting in destruction and breaching of critical infrastructure, the judge ruled that the notice was issued in compliance with the constitution and the law.
Attorney General Justin Muturi had asked the Court to dismiss LSK’s application challenging the deployment, arguing that Parliament approval should be presumed legal and valid.
