President William Ruto inspects a guard of honour during the 88th National Youth Service (NYS) recruits pass-out parade on August 26, 2024.
The directive by President William Ruto to have National Youth Service recruits trained to handle firearms has sparked controversy, with questions emerging over its legality and functionality of the service.
President Ruto on Monday issued instructions to the Cabinet Secretary for Public Service, Justin Muturi, directing him to work with the ministries of Defence and Interior to come up with ways of incorporating a basic firearms course in addition to the current NYS paramilitary training.
The directive, however, has attracted criticism from legal minds, who have questioned its legality.
Red flag from NIS report
In addition, the National Intelligence Service (NIS) had, in a report published ten years ago, raised the red flag over giving paramilitary training to youths who then end up jobless.
The NIS cautioned that they posed a security threat that could become a breeding ground for home-grown terrorists.
“Unless they are fully engaged, they may be a security menace given their big number, the nature of training and the lack of proper plans for remuneration,” stated the NIS report.
Some constitutional experts say the legal foundations of NYS and its operations do not envisage firearms training. For instance, lawyer Evans Ogada, a Law lecturer and Editor in Chief of The Platform for Law, Justice and Society, argues that the president's directive has raised fundamental social and constitutional questions.
On the social question, Mr Ogada cautions that training many youths in the country with firearm handling skills amid the prevailing challenge of unemployment is likely turn the country into a haven of militias.
“NYS has an intake of 20,000 recruits every year...yet not all of them will be absorbed into the police or military. So the question is what will happen to those who are released to the public without jobs?” posed Mr Ogada.
'Null and void'
On the constitutional question, Mr Ogada says the manner in which the directive was issued rendered it illegal, null and void. According to him, the order did not adhere to the provisions of Article 135 of the Constitution which requires the president to only issue such a directive in writing.
Additionally, he says, the law requires the president to get authorisation from the National Security Council before making such directives.
“He must be able to show the decision of the National Security Council that authorised him to make such a pronouncement,” said Mr Ogada.
'No powers to decide'
Another constitutional lawyer, Waikwa Wanyoike, argues that President Ruto has no power to decide what training NYS recruits should receive, saying that is the role of the NYS Director-General.
According to him, any training that may turn NYS into a military organ would be a violation of the law. He referred to a recent ruling in the Shakahola case in which the High Court restrained the president from exercising powers bestowed upon someone else by the Constitution.
“In ordering that NYS receive basic firearms training, President Ruto is exercising powers that he does not have and is in violation of the Constitution,” stated Mr Wanyoike.
Further, Mr Ogada faulted the functionality of the Service, which according to him, is contrary to provisions of the NYS Act. He reckons the Constitution did not envisage NYS being involved in any security matters as it is headed by a civilian, yet it offers paramilitary training and now wants to include a firearms course.
“The NYS is being supervised by the Cabinet Secretary for Youth and Sports, yet the functions of the training in paramilitary is to help in security affairs. Nowhere did the Constitution envisage that the CS for Youth will be dealing with anything to do with military or police,” said Mr Ogada.
Inclusion of firearms training and having the youth take part in defending the country, according to the lawyer, will complicate matters further since the law in Articles 238, 239, 241 243, 244, 245 246 and 247 does not recognise the NYS among the offices that play the security roles in the country.
“Article 247 requires that any new police service unit has to be under the command of the Inspector-General and the National Police Service. That provision alone brings problems with the NYS Act which under Section 5 creates a role for the NYS that places the overall oversight of the NYS under the CS Youth and Sports,” stated Mr Ogada.
According to him, should the President want the service constituted as a police unit, then the Attorney-General needs to make an amendment to the NYS Act to reflect the provisions of Article 247.
History of NYS
The National Youth Service (NYS) was established in September 1964 through an Act of Parliament as part of the transition process of Kenya from a colony to a nation State. It was later charged with the responsibility of training young men and women to serve the nation, and deploying service members to tasks of national importance.
Since inception, NYS has been domiciled in eight different Ministries over the years including Labour, Home Affairs, Planning and Devolution, Regional Development and Youth Affairs and Sports.
At least 14,602 recruits graduated from the college this year, which was markng its 88th graduation.
In his speech the president reiterated his government’s commitment to transforming the institution.
“NYS remains indispensable to our efforts to enhance public service delivery and national security. The government has upheld its commitment to recruit significant numbers of its servicemen and women into the Kenya Defence Forces, and has ensured job placements for NYS graduates both locally and abroad,” said Dr Ruto.
