Kenya will slide into a military state if MPs adopt an amendment to the law that gives the military sweeping powers and financial independence, as well as drastically limiting the role of Defence Cabinet Secretary.
The Kenya Defence Forces Amendment Bill 2015, currently before the National Assembly, seeks to give the military enhanced financial autonomy by providing its independent vote away from the ministry, appropriated by the National Assembly and which shall not be audited by the Auditor General. According to critics, the proposed law is not just a horrendous piece – it is an attempt to overthrow the constitution and democratic state, as it provides room for siphoning of public funds, and must be rejected on arrival.
Currently, the law provides that the funds to the Kenya Defence Forces shall be in a separate vote under the Defence ministry. The Bill seeks to remove the role of Parliament in assigning the Cabinet Secretary Defence functions – it removes the requirement for the CS to report to the President and Parliament on compliance with policies and directions.
This essentially reduces the role of the CS to periphery – ceremonial at best – and substantially increases the powers of the Chief of Defence Forces even as it provides avenues, if any, for scrapping the ministry because the defence forces will then be required to report directly to the President and Parliament if MPs enact the Bill. Cord allied Senators Bonny Khalwale (Kakamega) and Hassan Omar Hassan (Mombasa), and MPs John Mbadi (Suba) and Ayub Savula (Lugari) said the Bill seeks to militarise the state.
“This law should not be passed. If it happens, President Uhuru Kenyatta will go to the next stage to amend the constitution to remove the term limit like what is happening in Burundi,” Khalwale said. Burundian President Pierre Nkurunziza changed the constitution against the wishes of the people to vie for a third term. Rwanda and Uganda strongmen have also had the Presidential term limits removed in their respective constitutions. According to Mbadi, the amendment will ensure the country goes back to an authoritarian state.
“This is something that we have been warning Kenyans against, and it is beginning to manifest – the security laws was one thing and the KDF Bill is another,” Mbadi said. He continues: “It is abnormal that we want to compare ourselves to countries like Uganda, Rwanda and Burundi that are still smarting from their respective internal wars. We shouldn’t copy them!” he said, scoffing at attempts to insulate KDF from Parliamentary scrutiny.
Though the universal declaration ofhuman rights says military personnel deployed locally will serve under the command of the IG, it is clear in the proposed law that KDF does not wish to be under the command of the IG at any time. The changes are part of the provisions that will also see the removal of the requirement that the Cabinet Secretary for Defence’s annual report to include itemised statements on utilisation of public funds.
Other than the financial autonomy, the proposed law gives the President the freewill to extend the terms of office of the Chief of the Defence Forces, the vice chief and the service commanders to a year. This effectively whittles down the once famed and respected “Tonje rules” that provides CDF to serve a four-year term or upon attainment of 62 years, whichever came first. Equally, service commanders are supposed to leave office at 58 years. The families of military officers who die in the line of duty will also be the greatest losers, as it cuts them from state compensation if the Bill is passed – a proposal that has been described by critics as unspeakable.
Omar termed the proposal a big joke saying the state cannot purport to withdraw the peoples’ acclaimed rights. “It has become a moral duty. It has become a right and you can’t take away a moral duty or obligations that are there. I don’t know where they want to take this country to,” Omar said. He, however, said the attempt not to compensate soldiers who die in the line of duty could be related to the Somalia warfare where KDF is fighting al Shabaab militia.
“Kenya has never been at war but it could be a remedy not to take responsibility to compensate the families who have complained of losing their loved ones in Somalia. If they remove such an important obligation, I wonder what will motivate soldiers to take risks while fully aware that that their families will suffer if they lost their lives,” he said.
In administering punishment to the suspects, the KDF Amendment Bill seeks to invoke the jurisdiction of a court martial for civilian suspects, and also proposes to specify the kind of court a suspect can be referred to. This begs the question on whether the new punishment seeks to invoke the jurisdiction of a court martial for a civilian suspects.
The Bill also seeks to limit the power of the CS in delegating any power or assigning any duty to the Chief of the Defence Forces, or any member of the Defence Forces. The drafters of the Bill argue that the CS cannot delegate civilian functions to the CDF and vice versa.
With this proposed amendment, it is clear the CDF does not wish to be subordinated to the CS. Although the principal Act outlaws torture, the Bill introduces it (cruel, inhuman or degrading treatment or punishment) and redefines it as intentionally inflicted on a person for the purpose of obtaining information or confession from the person or the third party.
It qualifies it as an act inflicted by a person in authority or the agent of the individual in authority against the person in custody, even as the parent law says that torture or cruel treatment shall not be subjected by a member of the Defence Forces to any person. It also wants Kenya Wildlife Service, Kenya Forestry Service and National Youth Service to form the auxiliary reserve forces of the Kenya Defence Forces. If passed, the President will have powers to extend to 60 days from 28 days, the period within which he can call out the auxiliary forces to assist the police in situations of emergency, disaster, insurrection, hostilities, unrest or instability.
It also seeks to remove the requirement that the Defence Council shall advertise the chances allocated per county – at least 30 days before recruitment – meaning that some regions that are politically favoured may be given more slots during recruitment period than others. The International Centre for Policy and Conflict executive irector Ndung’u Wainaina said the Jubilee government was keen on creating a system that is devoted to them. Ndung’u qualified this by mentioning the compensation issue was meant to instill fear on officers, and also targets to eliminate those who are disloyal.
“This Bill if passed will overthrow the constitution. It is an attempt at abrogating the democratic constitutional order. It is consistent with governance ideology pattern that President Uhuru Kenyatta has adopted,” Ndung’u said. He also said in labour laws there is a provision to compensate workers, and denying them their right would be akin to creating extra-judicial killings while forcing others into submission.