The High Court has upheld a decision taken by CS Aden Duale to deploy military officers to quell protest chaos and decline to send them back to the barracks.
Justice Lawrence Mugambi said although the intervention was justified, it was clear that the public had not been fully appraised of the extent of the military involvement. He said the continuation of the military in assisting the police is necessary given the need to preserve peace and public safety and protect critical infrastructure and lives.
The court however directed that duration and areas of engagement be gazetted within the next two days to alleviate the public fear that their liberties might be put in jeopardy. “Given the eruption and loss of control of police during the demonstrations, necessitating deployment of KDF which endangered life and property, the invocation of article 241(b) was properly invoked in the circumstances,” he said.
He concurred with the Law Society of Kenya (LSK) that deploying KDF in such a blanket manner is a dangerous trend that can bring about the militarisation of the country. “This can potentially muzzle the civilian population from protesting what it believes are unfair taxation policies imposed by the government and also put a wedge between military and civilian population,” he said.
“This will give public confidence that their liberties will be observed during the duration of military engagement,” he said. The judge noted that the Duale notice doesn’t inform the public fully about the military intervention hence the apprehension or suspicion by the Public that their liberties under constitution may be put in jeopardy.
The court at the same time said the file shall remain open to receive and deal with any complaints of violation for as long as the duration of military lies. During the hearing of the case filed by the Law Society of Kenya, the Judge posed several questions to the parties present as he sought to understand aspects of military operations and laws specific to defence forces.
He asked the LSK to comment on instances when KDF may be deployed to which the society cited article 241 of the constitution. “There are two situations when KDF can be deployed. One instance is when there’s an emergency or disaster and the other situation is when there’s unrest,” LSK President Faith Odhiambo said.