What it would take to legally send police to Haiti

President William Ruto stated earlier in the week that it may be possible to send police to Haiti as “early as next week” once the government complied with the “less laborious” process set out by the Court to make such deployment legal. But is this so?

To borrow the president’s now commonplace retort – there are three critical things – but in my case questions. What did the Court decide? What ought to be done to deploy the police legally outside Kenya? And, specifically what is needed to deploy Kenya’s police to Haiti?

In many ways, Justice Chacha Mwita’s decision boils down to this: The law does not prohibit Kenya police from being deployed abroad. To do so however, the President (and perhaps the Inspector General) have to show that a “reciprocal arrangement” exists between Kenya and the country where the police are to be deployed. Finally, because there was no evidence that Kenya and Haiti had reciprocal arrangement on deployment, then the plan to send the police to Haiti was illegal.

So, it all comes down to one thing: reciprocal arrangement.

Justice Mwita did not expound on what reciprocal arrangement means. He did not need to because the law – that is, the National Police Service Act - explains what a “reciprocating country” is.

The National Police Service Act says that a reciprocating country means any country which the President gazettes after “being satisfied that the law of that country contains provisions reciprocal” to those regulating Kenya’s deployment of police abroad and vice versa. The provisions of the law regulating the deployment from and to Kenya cover issues of police command, punishment, duties and enforcement of labour contracts during deployment.

Two things become apparent right away. First, the starting point on whether a country qualifies to be a reciprocating country does not hinge on the wishes or desires of the Executive or even international or diplomatic request, but on whether the relevant foreign country has a law that provides for or allows that country to deploy its police abroad and seek foreign police.

If the country does not have that law, the minimum legal threshold needed to consider whether to deploy Kenya police is not even met. It is not for me to comment on whether Haiti meets even this minimum threshold, but the Judge did say that Kenya government failed to provide evidence in Court to show Haiti met the reciprocity criteria.

The second apparent thing is that the President must gazette the intended country of deployment before the police can be sent to that country. Gazettement is critical, because it is the formal notice by the President to the Kenyan public of the intended deployment.

It is important because it provides indisputable evidence – including for those who may wish to challenge the deployment in Court – of the government’s decision.

An important question arises from how the law describes the conditions needed for a country to be designated a reciprocating country. It is this: what must the President do to ensure that the designation and gazettement of a country as a reciprocating country meets the legal and constitutional standard? In the words of the Court, what/where is the “reciprocal arrangement”?

When Ruto says that all that is needed is to designate Haiti as a reciprocal country and the police will be on their way “as early as next week” this is the question he must answer first, if he does not want another diplomatic embarrassment from a Court decision (second time round) that his sworn deployment is still illegal.

We have already said the starting point is the existence of a law in the foreign country regulating reciprocity of police deployment. But there is more. The more is that the President must be satisfied that the law of the foreign country “contains provisions reciprocal to” those in the National Police Service Act concerning deployment of police abroad. This is where the real test is.

Judges call the process of assessing whether a law of a foreign country is similar to a relevant law of their country the “test of equivalence”. In deciding whether a law is equivalent, judges do not look at whether the law is identical. Instead, they look at both the structural and substantive elements of the law – that is, what the law is regulating and how it achieves that regulation.

In Kenya’s case for example, the nature of our police force, its mandate, how its disciplinary and labour issues are regulated would be critical elements in assessing the equivalency required by the National Police Service Act. A country without a law regulating the police or with a law that shows that the mandate, command, mode of discipline or entitlement of police is substantially different from what is in Kenya’s police law cannot therefore qualify as a reciprocating country.

Hence, while on face value the requirement of designating reciprocity looks “less laborious” - perhaps because it does not require the approval of the National Security Council and Parliament - still it calls for significant intellectual rigour and objectivity on the part of the President before he can take the decision. Remember, if the President’s decision to designate a reciprocating country is challenged in Court, judges will assess whether the President considered all the necessary elements objectively and prudently before making the decision.

Onerous? May be.

But remember that one cardinal requirement of the Constitution is its constant demand that public officers provide justification for their actions. A decision to deploy police officers abroad is a consequential one. Beyond the potential diplomatic dividends it may bring the country, at core, it is a decision that carries with it the risk that those deployed are potentially put at significant personal risk. It also means taking responsibility that those deployed will do their work professionally and will not bring harm to those they are required to protect. When the law gives that power to anyone – in our case, the President – it is only prudent that the decision not be based on whim, diplomatic populism or even sheer egalitarianism. Instead, it must be taken based on prudence and objectivity – with sufficient justification candidly offered.

@waikwawanyoike is a constitutional lawyer