BY: NDUNG’U WAINAINA
The Kenya Defence Forces (Amendment) Bill, 2015 purports to streamline the operations of the KDF Act No 25 of 2012, but it goes further into substantive amendments of the original Act. The bill is unacceptable, represents abuse of legislative process and has several unconstitutional provisions that attempts to overthrow the constitution and democratic state.
The proposed amendments do not in any way improve KDF’s effectiveness and efficiency. It creates a military institution that is opaque, unaccountable and rogue. MPs should reject the proposed amendments in toto and restrict themselves to the objects of the memorandum.
In discharging their responsibilities, security agencies must remain subject to the constitution and Parliament, and the democratic control and review by oversight organs, which represent the public interest The Bill, which is at the committee stage at the National Assembly, has the following defects:
First, according to the memorandum of objectives, the bill’s intention is “to ensure the smooth implementation of the Act”. But the bill makes substantive amendments to the KDF Act No 25 of 2012, raising questions on the motive behind of the proposed amendments.
Second, by amending Sections 8 and 31 of the original Act, the bill has barred the Defence Cabinet Secretary from disclosing to Parliament the number of persons and the period KDF is expected to be deployed. This undermines accountability, usurps military subordination to civilian authority and limits the constitutional powers of Parliament to authorise deployment and operations. However, clause 14 (a new clause) makes it mandatory for the Defence Council to deploy KDF after approval by Parliament.
Third, the amendments to Section 10(g) of the original Act, which required the CS to report to the President and Parliament on operations of military, virtually remove the enforcement of civilian oversight. They derogate the sovereign will of the people to be informed on the military’s activities.
Fourth, the CS cannot delegate what is already delegated. It is only constitution that delegates authority. On a positive note, an amendment introduced by Clause 11 has made it mandatory for the President to recommend (rather than unilaterally) to the Defence Council in case of need to extend the term of Chief of Defence Forces. The extension has been limited to only one year.
Fifth, security organs are required to reflect regional and ethnic diversity. Removing the requirement of the military to advertise recruitment opportunities per county undermines the national values and principles of accountability, transparency and public participation.
Sixth, the new section 20 creating an Auxiliary Reserve Force made up of Kenya Forest Service, Kenya Wildlife Service and the National Youth Service is unconstitutional. While the constitution allows the creation of other police units (only through an Act of Parliament), it does not contemplate the creation of other military forces outside what is provided by the constitution.
Seventh, the creation of an Auxiliary Reserve Force further usurps the authority of the constitution by i) recruitment into the Auxiliary Reserve Force does not follow the constitutional mandates placed on Kenya Defence Forces; ii) The Auxiliary force is granted by statute the constitutional mandate for the “defence and protection of the sovereignty and territorial integrity of the republic” which is reserved for KDF.
Only the constitution can grant such mandate; iii) creates a way to enter the KDF through the back door by virtue Sections 261 and 263( members of the Auxiliary Force may be called out for training with any unit of the Kenya Defence Forces and may serve on a permanent basis, “until the members services are no longer required, but in any case not more than the remainder of the member’s period of service in the reserve together with such further period as the Cabinet Secretary may determine; and iv) Allowing the deployment of the Auxiliary Reserve without reference to the Parliament as is required for the regular Kenya Defence Forces.
Eighth, by repealing Sections 289 and 290 (budgeting, financial transparency, prudent management of public finance and auditing) of the original KDF Act, the bill is a direct affront and violation of the constitution. Security organs accountability is a necessity in a constitutional democratic state. They must subject themselves to various forms of transparency and accountability designed to verify that they respect and operate within the mandate given them.
If left uncontrolled and not held to account, security agencies will end up harming the interests of the society, which they are supposed to serve, thus becoming themselves a source of insecurity.