The absence of a definition for the term “national force” in the Constitution of Kenya adopted in 2010 paves the way for disputes over the intervention of that country’s police officers in Haiti
In the judgment prohibiting the deployment of Kenyan police officers in Haiti released on January 26, 2024, Judge Enock Chacha Mwita makes two seemingly contradictory conclusions.
According to Mwita, Kenyan police officers can legally be deployed outside Kenya contrary to interpretations by President William Ruto’s political opponents.
However, according to the judge, the government’s desire to send the country’s police officers to Haiti contravenes the Constitutionaccording to a version of the court document received by AyiboPost.
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This provisional judgment interprets thearticle 240 (8) from Constitution of Kenya adopted in 2010 and invoked by the government to justify the deployment.
This article allows the “National Security Council” headed by the President of the Republic to deploy with the approval of parliament “the national forces” outside Kenya for peacekeeping or other regional or international operations.
The concept “national forces” is mentioned uniquely in article 240 (8) of the Constitutionand this founding text does not give none practical definition for the term.
This lack of definition forces the courts to interpret the concept, in order to decide between the Kenyan government, political opponents and the Kenya Bar Association in this matter.
The concept “national forces” is mentioned only in article 240 of the Constitutionand this founding text gives no practical definition for the term.
According to the government, “national forces” are what l’article239 from Constitution call them “National security organs” which consist of Defense forces, the national intelligence service and the national police service.
Judge Mwita rejects this interpretation. He admits in his judgment that the term “national forces” is not defined by the Constitution. However, the judge explained, Kenya has no forces other than the “Defence Forces”, including the Army, Air Force and Naval Forces, which are also called the military.
“Of the three national security organs mentioned in section 239 (1), only the Kenya Defense Force constitutes a “force”, the judge continued. The two other national security organs (the intelligence service and the national police service) are services. »
Also, continues the judge, “no one can legitimately argue [comme le fait le gouvernement] that national security bodies are national forces. »
It is therefore on the basis of this interpretation that the judge rules in favor of the opposition. According to him, the police are not part of the “national forces”. Also, only the military can be deployed outside Kenya after approval by Parliament under Article 240 (8).
In August 2010, the President and Commander-in-Chief of the Armed Forces of the Republic of Kenya promulgated the new constitution. | © Less Media
According to the judge, article 240 (8) of the Constitution does not empower the President to deploy the Kenya Police outside that country.
However, the “Law on the national police service” released a year after the adoption of the Constitution of 2010 outlines a procedure allowing Kenyan police officers to intervene in a foreign country to assist their police in the event of a “temporary emergency” in a context of reciprocity.
According to Articles 107 to 109 of this legal text, the President of Kenya must first declare the state in question a “reciprocal country”. This declaration will be published in the official journal called “Gazette”.
Opponents of President William Ruto had asked the judge to declare these articles “unconstitutional”. A request categorically rejected by the judge.
According to the latter, if article 240 (8) invoked by the presidency does not allow it to deploy the Kenyan police officers outside the country, there are no articles in the Constitution ruling unequivocally that police officers can never serve abroad.
According to Mwita, section 240 (8) of the Constitution does not give the President the power to deploy the Kenya Police outside this country.
In reality, the provisions allowing the deployment of police officers outside in “Law on the national police service” are based on the articles 238239, 243, 244 and 247 of the Constitutionaccording to the judge.
Specifically, article 238 of the Constitution of Kenya defines the principle of national securitywhich is the protection against internal and external threats to the territorial integrity and sovereignty of the country, its people, rights, freedom, prosperity, property, peace, and other national interests.
Theoretically therefore, Kenyan police officers could be deployed in a country like Haiti under article 238 of the Constitution, and not relying on article 240, according to the judgment. To do this, the government should argue that its action will promote national interests, or protect the country against internal and external threats.
The bar association, which opposes the deployment to Haiti made under article 240 (8), supports this interpretation of the judge.
In August 2010, the President and Supreme Commander of the Armed Forces of the Republic of Kenya brought the new constitution into force. | Ministry of Defence – Kenya
To be legal, any deployment governed by article 238 of the “National Police Service Act” must follow the procedures outlined in this text.
There cannot be a legitimate deployment of police officers in Haiti under cover of this law without respect for sections 107 and 108 of this legal text which require declaring the country reciprocal in matters of security with the publication of this decision in the newspaper “Gazette”, according to the judge.
However, Haiti has no “reciprocal” arrangement with Kenya and no similar decision has been published in the official journal, respond political opponents and the bar association.
To recap, the article of the Constitution of Kenya mentioned by the Ruto government in the Haitian file only allows the deployment of army soldiers outside the country, according to the judge’s interpretation.
Other constitutional provisions authorize the deployment of police officers abroad, but the government has not mentioned them. In addition, the Haitian file does not meet the obligation of reciprocity, as well as publication in the official journal, required by law.
It is not clear whether the government of William Ruto, which has already obtained approval from the Kenyan parliament for the deployment of police officers to Haiti, will reintroduce its decision, this time invoking other articles of the Constitution of 2010 or by signing a reciprocity agreement with Haiti.
Read also: The ban on sending Kenyan police officers to Haiti temporarily maintained
The October 2023 resolution of the United Nations Security Council speaks of a “multinational security support mission (MMAS), of which one country will take the lead, in close cooperation and coordination with the Haitian Government. Nothing in this document does not seem require that this “operational support” to the Haitian National Police come from a foreign police force or army although its article 7 asks the States participating in the Mission to “provide specialized skills” particularly in the areas of anti-gang fight and “community policing”.
Haiti has no “reciprocal” arrangements with Kenya and no similar decision has been published in the official gazette.
AyiboPost’s attempts to interview the Kenyan government were unsuccessful. Immediately after the release of Judge Enock Chacha Mwita’s decision, this government announced that it wanted to challenge it before a higher court.
This case may therefore land in the coming months before the highest court of justice in Kenya, which will have the effect of further delaying the arrival of police forces in Haiti in a context of expansion of the power of bandits, and of additional threat posed by agents of the Protected Areas Security Brigade (BSAP), whose leaders are close to the former police officer convicted of links to drug trafficking in the United States, Guy Philippe.
Read also: Guy Philippe at all costs: the BSAP is strengthening and says it is ready for the fight
This court decision is “a victory for me, for the Kenyan people and their Constitution and for Haiti,” constitutionalist Ekuru Aukot told AyiboPost in an interview on January 26.
The political opponent whose party is leading the legal action in the case hopes the ruling will be reaffirmed in higher courts.
For the Senator from Narok County, Ledama Olekina, the judgment reflects Kenyan public opinion, largely opposed to the desire of William Ruto’s government to carry out an armed intervention in Haiti.
“The decision of the High Court of Justice is correct,” judges Senator Olekina to AyiboPost. “If it’s the army, yes, but not the police. It is contrary to the Constitution “, declares the elected.
This judgment, although provisional, represents a further defeat for the government of William Ruto.
This case may therefore land in the coming months before the highest court in Kenya, which will have the effect of further delaying the arrival of the police forces in Haiti…
On the day the Haiti ruling was released, another court ordered the government to stop collecting payments from a new housing tax imposed by the Ruto administration.
Analysts, interviewed by the channel BBCsee these two rulings and other outings against the government as a sign that Kenyan judges remain fiercely independent despite what they see as attempts to intimidate the president.
Par Wethzer Piercin, Jérôme Wendy Norestyl et Widlore Mérancourt
Cover image: A Kenyan soldier holding an illustrated copy of his country’s constitution. | © BBC News
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