High Court Judge Lawrence Mugambi on Thursday found that the state did not err in deploying Kenya Defence Forces internally to help quell chaos arising from anti-tax protests.

In a case pitting the Law Society of Kenya, the State Law Office, the Cabinet Secretary for Defence, and three others, Judge Mugambi indicated that KDF can operate alongside police for a further two days during which the military will assist in restoration and maintenance of law and order.

While granting the deployment, he indicated that the court was faced with two competing constitutional values, the need to protect life and property, preserve peace, order, and public safety, and the need to uphold, to protect the open public expression by the citizenry in a democratic state.

“The court must uphold the right of the individual citizen to assemble, demonstrate, and picket under article 37 of the Constitution, but it must also be conscious of the fact that if expressed in a dangerous manner that endangers peace order, and public safety that can cause substantial harm that cannot certainly be within the prescribed boundaries of expression,” ruled Judge Mugambi

The judge, however, directed the government to provide details on the duration of deployment, areas targeted, and why military deployment is a necessity. The petitioner, LSK, has argued that the intervention of the military to support the police would cause fear and intimidation to Kenyans and prevent them from expressing themselves. And the judge agrees.

“Deploying the military in a blanket manner without defining the scope or nature of the intervention, the duration of such intervention, is a dangerous trend that can bring about the militarization of the country which is antithetical to the enjoyment of rights and freedoms,” he said

As to whether the Cabinet Secretary for Defense Aden Duale acted lawfully in his Gazette Notice on June 25 that deployed KDF to support the National Police Service “in response to a security emergency caused by violent protests” in various parts of Kenya resulting in destruction and breaching of critical infrastructure, the judge ruled that the notice was issued in compliance with the constitution and the law.

Attorney General Justin Muturi, however, asked the Court to dismiss LSK’s application challenging the deployment, arguing that Parliament approval should be presumed legal and valid.


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