- In his ruling on Thursday, Justice Lawrence Mugambi said the military are trained to use force, not civilian interactions.
Image: KEITH MUSEKE
The High Court has upheld a decision taken by CS Aden Duale to deploy military officers to quell protest chaos.
Justice Lawrence Mugambi 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.
"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.
The judge said that even though the intervention was justified, it was clear that the public had not been fully appraised of the extent of the military involvement.
He agreed with the Law Society of Kenya 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 to what it believes are unfair taxation policies imposed by government and also put a wedge between military and civilian population," he said.
The Judge subsequently directed that duration and areas of engagement be gazetted within the next two days to aleviate the public fear that there liberties might be put in jeopardy.
"This will give public confidence that their liberties will be observed 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 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 on violation for as long as the duration of military lies.
The ruling by the judge was, however, disrupted from the time he was set to read it at 5:20 pm.
The court had to create new Zoom links on five seperate occasions.
The ICT team apologised to those in attendance over the technical challenges they were facing as more than 1,000 people has joined in during the virtual session.
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 there's an emergency or disaster and the other situation is when there's unrest," LSK President Faith Odhiambo said.
Article 241(b) in which Duales gazette notice is hinged indicates that the defence forces shall assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances.
241(c)on the other hand states that the defence forces may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.
Based on this, LSK told Justice Mugambi that there's no information from the state on whether the presence of the military in the capital city is meant to deal with an emergency or to deal with unrest or instability.
"You have not been told anywhere there's been unrest," said LSK.
"In this case, what happened was that CS Duale issued the gazette notice before approval was sought. That was in breach of the constitution and should be stopped."
The notice they said was supposed to be issued within 24 hours after approval had been made by parliament.
But the approval according to LSK was sought when KDF had already been deployed.
On its part, the state is defending its move saying there is nothing illegal in the gazette notice issued by CS Aden Duale.
The Attorney General and other state parties as represented by Emmanuel Bitta said the action by the CS was above board in respect to the timelines as the notice was issued within 24 hours.
Bitta said a decision needed to be made before that decision was subjected to an approval process.
He urged the court not to grant the orders sought.
"In current circumstances, you haven't been told what will happen if orders are issued. Lsk can't authoritatively comment on the issue of security," he said
"If we endanger the lives of citizens in this country. What's the remedy? Will order protect the right to life and property or not?" he posed