NAIROBI, Kenya, Jan 26 — The High Court has blocked the government from deploying Kenyan police units to lead a multinational security support mission in Haiti terming the move unconstitutional.
High Court Judge Chacha Mwita said in a ruling Friday that any peace mission outside the country can only be assigned to the Kenya Defence Forces (KDF).
Mwita explained Sections 107, 108 and 109 of the National Police Act limit the deployment of police officers outside the country to reciprocal arrangements between Kenya and other countries.
He cited Article 240(8) of the Constitution which permits the National Security Council to deploy “forces” on missions outside the country with the approval of Parliament holding that “national forces” mean the Kenya Defence Forces (KDF).
“If the intention of the framers of the Constitution was that the Council should deploy Defence forces, National Intelligence Service and National Police Service, they could have easily stated so and mandated the Council to deploy national forces and services, or national security organs, to capture that intention,” Justice Mwita argued.
“In that respect, it is the holding of this Court the Council cannot deploy National Police Service outside the country under Article 240(8) because the mandate of the Council is to deploy Forces, (Kenya Defence Forces) for regional or international support operations and not National Police Service,” he reasoned.
No external deployments
Unlike the Kenya Defence Forces Act, Justice Mwita noted that Section 6(2) of the National Police Service Act provides that the Council may deploy the service (National Police Service) or any part of the service in defence of Kenya during an emergency.
“That is the only time the National Police Serviced Act mandates the Council to deploy National Police Service,” he explained.
Mwita further explained that Section 6(3) is also clear that for purposes of deploying the Service in case of emergency, “the procedure under Article 58 of the Constitution [on declaration of a State of emergency] shall apply”.
He added that other than as provided under Section 6(2), 3 the Council has no mandate to deploy National Police Service even within the country.
The ruling deals a blow to the ongoing efforts to pacify Haiti which has been grappling with a surge in violence since the assassination of President Jovenel Moïse in July 2021 at his private residence in the capital, Port-au-Prince, triggering calls for a security intervention to complement the efforts of understaffed and under-resourced Haiti national police force.
Parliament approval
The National Assembly approved the proposed deployment to Haiti on November 16, 2023.
The government is banking on Senate’s concurrence with Senators largely expected to back a report by a Joint Security and National Administration Committee of Parliament.
The joint team approved the deployment with a dissenting opinion from Homa Bay Town MP Peter Kaluma who opposed the deployment terming it “unconstitutional and unlawful”.
Kaluma argued that the National Police Service (NPS) can only perform its function within the territory of Kenya and that it is not a force for deployment outside the country.
Further, he opposed the deployment arguing that NPS is an independent institution which is not capable of deployment under instruction of the National Security Council (NSAC).
Interior Cabinet Secretary Kithure Kindiki had told the joint parliamentary team that the proposed deployment of NPS officers to Haiti is not just a fulfillment of Kenya’s global obligations, but a move that enhances the country’s reputation as a reliable nation.
Kindiki put a strong case for the Mission which is part of United Nations Multinational Security Support in Haiti.
He projected a budget of Sh36.5 billion out Sh91 billion earmarked for the 11-nation mission.
