Unless you are living under a rock, you know that the Kenya Defence Forces, in the form of the Kenyan Army was deployed to help contain the atrocious situation at Westgate.
As both a fan of history and military engagements, I have read a lot on armed forces throughout the ages, from the rudimentary mobs of yore to the sophisticated units we have today.
One thing that I believe personally is that it is a big deal whenever a standing army is deployed to deal with civilian and civilian matters.
There exists a civilian role, the Commander In Chief, who controls the army. This does not, and cannot mean that CiC can do as he likes with the army. There must be checks and measures and procedures to control this.
Consider the hardware that they air force, navy and army have in terms of weapons, munitions and vehicles. Consider also that the soldiers are trained to operate in a theatre where the mission is essentially to terminate enemy forces and infrastructure.
The KDF has been deployed a lot of late, most recently as an incursion into Somalia. Prior to that to contain matters in Tana River, Baragoi and to contain the Sabaot LDF at Mt Elgon.
Back to the matter at hand.
The KDF showed up at Westgate. Unannounced. The Cabinet Secretary in charge, to date, has not said a single word.
I am curious. How did they get there? Under what circumstances can the army be deployed? Who has the authority to deploy the army? What is the procedure?
For answers I turned to the KDF Act 2012 [PDF Link] that made for some interesting reading. I will highlight the interesting bits.
Did you know that the KDF is bound to uphold the constitution with regards to freedoms and rights? Section 3
Of interest is that diversity of people in equitable proportions is explicitly mentioned.
Also, in section 4, if you are an alleged spy, you are bound by the provisions and regulations of the KDF act.
Is it legal for the army to be deployed? Very much so. Section 8
This means that the KDF can be deployed in conjunction with other bodies e.g. the police or on itâ€™s own.
Note both are subject to the involvement of the national assembly.
When the KDF is deployed, certain things should happen.
Has this happened yet? I dunno.
What does the Commander In Chief do anyway? Section 9
Note the â€œcommandâ€ bit.
Now much has been said about the powers of the Cabinet Secretary for Defence (or lack thereof) that has not been helped by the current office holderâ€™s deafening silence.
A cursory reading of section 10 shows nothing could be further from the truth. The Cabinet Secretary for Defence is quite a powerful position
Digest that my friends. That post is not cosmetic, contrary to popular belief and appearance.
Of special interest is section (d) that talks about â€œcontrol and administration of the defence force as may be delegated by the president over the defence forcesâ€.
If I understand that right, the President can delegate control of the army to the CS.
Of other interest is section (h). This report must make for some fascinating reading. If it is in fact submitted annually. I dunno.
So, so far the pecking order in CiC then the CS. Next in line is the Chief of the Defence Forces.
In other words section (c) says , Omamo is Karangiâ€™s boss.
Much has been said about a mysterious body called the Defence Council. Section 19
Note again the CS is not a trivial member of this body.
What does this council do? Section 20
With regards to tenure, section 24 is pretty blunt
Now, let us move on to co-operation with other authorities. Section 31
Subsection (a) and (b) are pretty clear. Was (a) followed with regards to Westgate? Weâ€™ll get to that.
Much attention was given to the standoff over who was in charge between General Karangi and Inspector General Kimaiyo. Turns out the KDF act specifically mentions joint operations between the police and the KDF. Sections 33
I draw your attention to sub section (3). Which says Kimaiyo was supposed to be in charge at Westgate.
Is there anything in the law that talks about governing the conduct and operations of the KDF while deployed within the territory? Of course. Section 34
Subsection (1) is of interest. While supporting the police, the KDF must observe and protect human rights and freedoms of civilians. There is no carte blanche.
Subsection (2) and (3) also are of interest. Were they actually been executed?
Is there mention of the powers and duties of members while deployed? Of course! Section 35
This has several interesting bits
Subsection (1) I understand to mean while supporting the police under the auspices of section (2) a soldier has all the powers of the police including arrest.
Subsection (5) I understand to mean a solider is bound by the same code of operations as a policeman and can be prosecuted for acting or failing to act in contravention of said code.
So, dear reader, I leave it to you. Under what circumstances do our armed forces keep being deployed? Is the law followed to the letter?