The Kenya Defence Forces under the New Constitution
Open. Accountable. Responsible
The Kenya Defence Forces is one of the three organs of national security subordinate to civilian authority under the National Defence Council.
The Kenya Defence Forces' premier role is to defend the country against external aggression and threats to the security of the people of Kenya.
Enlistment into the Kenya Defence Forces is voluntary. Members of the Forces are respected by the public and generally well regarded even internationally. Units of the Kenya's Defense Forces are currently serving in neighbouring Somalia under the African Union Mission in Somalia (AMISOM) to support the Somalia Transitional Federal Government's efforts to contain the Al Shabaab militia and which has been behind sporadic attacks in Kenya since 2011:
"AMISOM conducts a Peace Support Operation in Somalia to stabilize the security situation, including the take over from Ethiopian Forces, and to create a safe and secure environment in preparation for the transition to the UN" (AMISOM, 2012).
The Kenya Defense Forces form one part of the 3 national security organs in the country under the Constitution of Kenya 2010. The other two are the National Intelligence Service NIS, and the National Police Service. Excerpts from Chapter Fourteen - National Security, Part 1 - National Security Organs, and Part 2 - The Kenya Defense Forces, Articles 239 and 240:
239. (1) The national security organs are— (a) the Kenya Defence Forces; .......
241. (1) There are established the Kenya Defence Forces.
The Kenya Defense Forces have shown high levels of professionalism and generally remained loyal to civilian authority. This is not expected to change:
239. (5) The national security organs are subordinate to civilian authority.
240. (3) The Council shall exercise supervisory control over national security organs and perform any other functions prescribed by national legislation.
As a specialised national security organ, the Kenya Defense Forces is tasked with the security of Kenya and its people. Excerpts from Chapter Fourteen - National Security, Part 1 - National Security Organs:
239. (2) The primary object of the national security organs and security system is to promote and guarantee national security in accordance with the principles mentioned in Article 238 (2).
241. (3) The Defence Forces— (a) are responsible for the defence and protection of the sovereignty and territorial integrity of the Republic; (b) shall assist and cooperate with other authorities in situations of emergency or disaster, .......
In the past few years, the KDF has been quite busy around the country supporting the Police in law enforcement and security operations against banditry, inter-ethnic clashes and terrorism in accordance with Article 241 (3) (b) above. For example, the Cabinet Secretary for Defence sought the "assistance" of the KDF via a Gazette notice of May 22, 2014 following violent clashes in May in parts of Wajir and Mandera Counties. The deployment of soldiers on the main highways leading to and out of the two Counties was described as "........ merely intended to provide support to the efforts of the National Police Service to restore peace and order in the affected areas."
Similar outbreaks of violence in Lamu County in the month of June 2014, had the Secretary order on the 14th of July, the deployment of the Defence Forces "....... in support of the National Police Service in response to the Security emergency situation in Lamu County."
The KDF was once more sent to areas around the Kenya - Somalia border in the County of Mandera on Saturday the 24th November 2014 to pursue terrorists said to be from the Al-Shabaab Islamist militant group after they massacred 28 travelers in a bus headed to Nairobi.
It is important to mention here that the Kenya Defense Forces can only undertake external or internal combat operations lawfully only with the approval of the people's representatives i.e., the National Assembly:
241. (3) The Defence Forces— (c) may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.
238. (2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles–– (a) national security is subject to the authority of this Constitution and Parliament;
Indeed, the first time under the Constitution of Kenya 2010 that any President sought the help of the KDF to quell ethnic unrest, was in December 2013 after persistent clashes occurred in the Counties of Turkana, West Pokot, Samburu and Marsabit in the North and North-Western parts of the country. The National Assembly duly obliged according to the law and units of the KDF were deployed to the affected areas.
In September of the same year, the KDF was called upon to engage terrorists from the same Al-Shabaab Islamist group who attacked the Westgate shopping mall in the capital city of Nairobi. More than 67 people who included people of other nationalities were killed in that attack.
Clearly checks and balances are no strangers to the Constitution of Kenya 2010 when one recalls that executive authority is vested on the people. The above Clauses 241 (3) and 238 (2) are crucial in the sense that they act as a check to prevent the (mis)use of the Defense Forces for political or personal agenda, oppression or repression in any part of the country by the political elite or the Executive.
When deployed, the Defense Forces are also not authorised to act outside of the Constitution or act in a manner that infringes on the freedoms, rights and liberties of the people of Kenya. Excerpts from Article 238:
238. (2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles–– (b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
Speaking of law, the KDF is not a law unto itself and therefore its place, functions, operations, and composition is effected within the limits of law in the very lengthy The Kenya Defence Forces Act, 2012 as well as other laws. For example, today, an aggrieved serviceman or woman can seek justice in a civilian court. Indeed, on the 19th of July 2015, a recruit to the KDF was awarded 3 million shillings in general damages for wrongful dismissal. In giving judgement, the Industrial Court noted that the KDF ought to have provided the petitioner "....... with a valid reason for the termination of employment as is required under Section 43 of the Employment Act 2007."
238. (6) Parliament shall enact legislation to provide for the functions, organisation and administration of the national security organs.
The National Defense Forces are expected to remain neutral when called upon to provide national security anywhere in Kenya and to respect every community's culture and way of life:
239. (3) In performing their functions and exercising their powers, the national security organs and every member of the national security organs shall not— (a) act in a partisan manner; (b) further any interest of a political party or cause; or (c) prejudice a political interest or political cause that is legitimate under this Constitution.
243. (c) in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya; ........
General Samson Mwathethe Chief of Defence Forces
241. (1) There are established the Kenya Defence Forces.
(2) The Defence Forces consist of— (a) the Kenya Army; (b) the Kenya Air Force; and (c) the Kenya Navy.
The top rank of these three units of the Forces must reflect the face and composition of the people of Kenya:
(4) The composition of the command of the Defence Forces shall reflect the regional and ethnic diversity of the people of Kenya.
At the head of the Kenya Defense Forces is the President. Excerpt from Article 131 of Chapter Nine - The Executive, Part 2 - The President and Deputy President:
131. (1) The President—(c) is the Commander-in-Chief of the Kenya Defence Forces;
Serving with the President at the helm of the Kenya Defense Forces will be the National Security Council NSC, (whose membership is drawn mostly from the Cabinet) to exercise civilian supervision over the Forces.
More civilian authority over the Kenya Defense Forces is vested in the Defence Council that manages the day-to-day activities of these men and women in uniform. The Defence Council reports to the President through the Secretary of Defense who heads it. The Secretary is also a member of the National Security Council. The Council reports to Parliament at least once each year on the security situation in Kenya.
The keen reader may peruse the lengthy and detailed Kenya Defence Forces Act, 2012 that outlines the various organs and offices within the Defence Forces and their administration.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. AMISOM mission statement. Retrieved Feb 2012.
3. The Kenya Defence Forces Act, 2012. National Council for Law Reporting. The Attorney General.
4. The Kenya Gazette Vol. CXVI-No. 65 of May 23, 2014. Government of Kenya. The Government Printer.
5. "MPs clear soldiers to stop clan fights in Marsabit, Samburu, West Pokot and Turkana". Daily Nation Online Article of 7 December 2013. Accessed December 2013.
6. Hansard Report 5th December, 2013 Afternoon. Website of The National Assembly. Accessed December 2013.
7. The Kenya Gazette Vol. CXVI - No. 82 of July 15, 2014. Government of Kenya. The Government Printer.
8. Nasibo Dabaso Jillo v Commander Kenya Army & another  eKLR. National Council for Law Reporting. The Attorney General.