Akech: Why Duale’s emergency order violates the Constitution

Kenya Defence Forces

Defence Cabinet Secretary Aden Duale on June 25, 2024, ordered the deployment of Kenya Defence Forces to support the National Police Service in response to the security emergency caused by the ongoing violent protests.

Photo credit: File | Nation Media Group

On Tuesday, June 25, 2024, Defence Cabinet Secretary Aden Duale, issued a Gazette Notice stating that “Pursuant to Article 241 (3) (b) of the Constitution of Kenya as read with sections 31 (1) (a), 31 (1) (c), 33 (1), 34 (1) and 34 (2) of the Kenya Defence Forces Act… the Kenya Defence Forces is deployed to support the National Police Service in response to the security emergency caused by the ongoing violent protests in various parts of the Republic of Kenya resulting in destruction and breaching of critical infrastructure”.

This Gazette Notice violates the Constitution in several respects. But first, it is important to understand why the Constitution circumscribes and regulates the exercise of the power to declare a state of emergency. The provisions of the Constitution dealing with this power are found in Articles 58, 132, and 241 of the Constitution.

They were informed by a history in which the President abused this power. In the old constitutional order, the president could declare a state of emergency by bringing into operation Part II of the Preservation of Public Security Act. This Act gave the president far-reaching powers during a state of emergency, including the power to detain individuals without the right to a fair trial and suspend all the rights and freedoms guaranteed by the Constitution.

Although the presidential order required the approval of the National Assembly within 28 days, there was no limit to its duration once this approval was granted. The power was therefore open to abuse, and the president abused it, grossly.

Political unrest

Often, and as the Committee of Experts on Constitutional Review noted in its Report of 2010, the President used this power to “quell opposition in times of political unrest”.

In enacting the Constitution of 2010 we sought to restrict who could declare an emergency, the circumstances in which the President could declare a state of emergency, and the duration of a state of emergency. We also sought to constrain the exercise of this power by subjecting it to approval by the National Assembly and review by the Supreme Court.

And so, the Constitution of 2010 addresses the abuse of this power in six ways. First, we said in Article 132 (4) (d) that only the president, and not a cabinet secretary, can declare a state of emergency.

Second, we said in Article 58 that a state of emergency can only be declared when: (i) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (ii) the declaration is necessary to meet the circumstances for which the emergency is declared.

Instructively, both conditions have to be met before a state of emergency can be declared. Third, a declaration of a state of emergency and any law enacted or action taken consequent upon the declaration must operate prospectively and for not longer than 14 days.

Fourth, only the National Assembly has the power to extend the duration of the declaration of a state of emergency, following a public debate. Initially, the National Assembly can extend the declaration for two months if at least two-thirds of all its members vote for it. Subsequently, the National Assembly can extend the declaration for subsequent similar periods not exceeding two months if at least three-quarters of all its members vote for it.

Fifth, Article 241(3)(c) of the Constitution provides that the defence forces may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.

Finally, the Constitution grants the Supreme Court the power to decide on the validity of a declaration of a state of emergency, any extension of such a declaration, and any law enacted or action taken consequent upon such a declaration.

These are very stringent conditions, and will not be easy to fulfil in any given instance in which the President claims that there is a state of emergency. For example, in the ongoing saga involving public disaffection with the Finance Bill 2024, any claim that the public protests around it have given rise to a state of emergency will be contested at the Supreme Court.

For example, it is plausible to argue that this matter can easily be resolved politically – by the president climbing down and meaningfully engaging the critics of his government’s highly unpopular Finance Bill, instead of talking at them. Also, the parliamentary thresholds for the extension of a state of emergency once declared will either be impossible or not be easy for the Kenya Kwanza government to attain.

Few viable options

In these circumstances, the president is left with very few viable options. And so, what has the president done? Instead of seeking to declare a state of emergency, he has sought to creatively interpret Article 241 (3) (b) as giving him (or the Defence Secretary) the power to deploy the defence forces to “assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances.”

In doing so, the president is seeking to do two things. First, is to escape deliberation by the National Assembly on the justification for the deployment of the defence forces in the so-called emergency.

Second, is to escape scrutiny of the validity of this deployment by the Supreme Court. This would circumvent the intention of the drafters of the Constitution – which was to constrain and make accountable the exercise of this power, and hence break away from a past in which the power to declare a state of emergency or deploy the defence forces in an emergency was often grossly abused.

The Gazette Notice is also deliberately vague on its duration and does not state how long the “security emergency” will last. It simply talks of deploying the defence forces to support the National Police Service to respond to “ongoing violent protests in various parts of the Republic of Kenya resulting in destruction and breaching of critical infrastructure.”

The point of all this is to escape the constraints imposed by the Constitution regarding the declaration of a state of emergency. These are that the declaration must be time-limited, based on the approval of the National Assembly, and subject to review by the Supreme Court. There should be no declaration of a state of emergency or deployment of the defence forces to deal with “situations of emergency” without these safeguards that are meant to ensure that citizens preserve their hard-won civil liberties.

Prof Akech is a former dean at the University of Nairobi's School of Law.