Constitution of Kenya explained
- Written by Steve Nguru
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The Defence Council Under the New Constitution
Open. Accountable. Responsible
The Defence Council is the highest decision-making body involved in the day-to-day running of the Kenya Defence Forces.
The Defence Council is concerned with both short and long-term operations and strategies of the Kenya Defence Forces.
It is led by the Secretary of Defense and includes a small core group of the heads of the Defence Forces and the Principal Secretary of Defence only.
As mandated by the Constitution, the Defence Council is the top hands-on security organ responsible over the running of the Kenya Defence Forces.
The Defence Council is a Constitutional organ. Chapter Fourteen - National Security, Part 2 - The Kenya Defence Forces, Article 241:
241. (5) There is established a Defence Council.
The Defence Council will set the policies and oversee the daily operational aspects of the Kenya Defence Forces:
241. (7) The Council–– (a) is responsible for the overall policy, control, and supervision of the Kenya Defence Forces; .......
Parliament, as the supreme law-making body in the country is mandated to legislate the roles and functions of this Council:
(7) The Council–– ....... (b) performs any other functions prescribed by national legislation.
The roles and functions of the Council are enumerated in The Kenya Defence Forces Act, 2012, particularly in Sections 19 - 23 of the Act. Notable provisions include Sub-section 20. (1) (g) of the Act which clearly provides for regular and direct contact between the President and the Council. Part II - Constitution, Structure, Command and Administration of the Defence Forces:
20. (1) In addition to the functions provided for under Article 241(7)(a) of the Constitution, the Defence Council– (g) shall advice the President on any matter relating to and affecting the Defence Forces; .......
Another notable role of the Defence Council is to advise the President on top appointments in the Defence Forces:
23. (1)The Chief of the Defence Forces, the Vice Chief of the Defence Forces and the three Service Commanders shall be appointed by the President on the recommendation of the Defence Council.
When for example, the President appointed a new Chief of Defence Forces on the 17th of April 2015, he acknowledged the input of the Council:
"Reflecting democratic values, fidelity to our constitution in regard to the primacy of civilian oversight to the security sector, the Defence Council sat today and agreed on the succession of another set of general staff officer cadre to lead our Defence Forces ...... . On the advice of the National Defence Council, I have today promoted Lieutenant-General Samson J. Mwathethe to General and appointed him Chief of Defence Forces......."
Section 23 above however, is indeed a curious provision given that 4 of the 5 office holders listed above are themselves members of the Council! Even with the provision of Section 15 of the Second Schedule of the Act, it is hard to see how these decisions are arrived at in a manner that cannot escape scrutiny:
15. A member of the Defence Council who is subject of a discussion in a meeting of the Defence Council shall be disqualified from attending,
participating and voting on the matter.
The Defence Council is also the body that enlists recruits to the Forces:
28. (1) The Defence Council shall recruit and appoint members of the Defence Forces, ....... .
The Council also sets the salaries and terms of the members of our Defence Forces - albeit in consultation with the Salaries and Remuneration Commission SRC as would be expected:
29. (1) The Defence Council shall, on the advice of the Salaries and Remuneration Commission, determine the salaries of the members of the Defence Forces.
(2) The Defence Council shall, in consultation with the Public Service Commission, determine the conditions of service of members of the Defence Forces.
The membership of the Defence Council is led by the Secretary of Defence and includes just a small core of five other members all of whom are holders of Constitutional offices:
(6) The Council consist of— (a) the Cabinet Secretary responsible for defence, who is the chairperson; (b) the Chief of the Kenya Defence Forces; (c) the three commanders of the defence forces; and (d) the Principal Secretary in the Ministry responsible for defence.
Oddly, the Vice Chief of the Defence Forces is not a member of the Council!
In the spirit of the Constitution of Kenya 2010, the civilian membership in the Defence Council is central to its decisions despite being outnumbered by uniformed officers. Schedule II of the Kenya Defence Forces Act, 2012:
5. The quorum for the conduct of business at a meeting of the Defence Council shall be five members but the quorum of the Defence Council shall not be properly constituted in the absence of the Cabinet Secretary and the Principal Secretary.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. The Kenya Defence Forces Act, 2012. National Council for Law Reporting. The Attorney-General.
3. Capital Blog. Website of Capital FM. Retrieved June 2015