Presumably the President thinks this is another example of the courts, and certain objectionable people through the courts, standing in the way of his great ideas. Some people have reacted to the decision by saying that the decision is a great shame because the people of Haiti are in desperate need of assistance.

The case (like most of the cases government finds so troublesome) was not about the wisdom of the proposed action. The courts can rarely pronounce on that sort of issue – unless it is clear that, for example, a policy will discriminate against certain sections.

Unfortunately, people often approve of court decisions that produce a result they like, had even hoped for, and disapprove of those that lead to consequences they did not hope for. This is less trouble than reading the judgment and following the judge’s (or judges’) reasoning.

Before I try to do the latter, focusing on the central issues in the case, let me say I had grave doubts about the wisdom of the proposal. Partly it was a matter of fearing the consequences of letting the Kenya police loose on the long suffering people of Haiti. But, as many people have pointed out, there are other issues. According to the US Library of Congress, 90-95 percent of Haitians speak only French-based Creole, an official language along with French.

But there would be much more not to understand than language. The respected American journal, Foreign Policy, carried an article by a Haitian human rights organisation leader. This describes linkages between politicians and the gangs that now terrorise the country, including between gangs and the police and prosecuting authorities.

Though there may be doubts about the wisdom of the proposed Haiti expedition, this does not mean that the use of Kenyan police on some overseas support role would never be justified. I once met a Ghanaian police officer in a police station in East Timor. While there was some disagreement over whether the East Timorese really needed foreign police support, there are circumstances in which the use of police could well be very helpful, and definitely more appropriate than the military. Help in time of elections might be an example.

Justice Chacha Mwita did not say that Kenyan police could never be sent overseas. So what did he say? The main issue was whether the Constitution allows, or perhaps even prohibits, the use of Kenyan police on overseas missions of this sort. If it does not prohibit it, what is the procedure for approving such a mission?

The Constitution does not provide for police being sent overseas. The judge held that the Constitution does not have positive provision for this sort of enterprise. This required careful reading of the Constitution, especially Article 240 on the National Security Council. This body is the government-dominated (the President and Deputy, three Cabinet Secretaries, and the heads of the Kenya Defence Forces, the National Intelligence Service and the National Police Service).

The Council is to “exercise supervisory control over national security organs”. Those organs are defined (in Article 239) as the KDF, the NIS and the NPS. So you might think that the Council would decide whether police were to go to Haiti. But supervisory control clearly means something less specific; the Defence Council (Article 241) exercises “overall policy, control and supervision” of the Defence Forces. And the Inspector General of Police exercises “independent command” over the police (Article 245). The Security Council’s “control” seems not of a day-today nature, but more of a coordination function.

In fact, the focus for much of the judgment was on one clause that says the Council (with the approval of Parliament) may deploy “national forces” outside Kenya on peacekeeping or support operations (Article 240(8)). The government argued that “national forces” include the police. By itself, one might have thought so, but elsewhere, as I have said, a different term,“security organs”, was used to include the police along with the KDF and the NIS.

And the police are never referred to as a “force” in this Constitution. In the old Constitution, and law, they were the Kenya Police Force. Now we have the National Police Service, made up of the Kenya Police Service and Administration Police Service.

The wording change is very important. In its Short Report about its 2002 constitution draft, the Constitution of Kenya Review Commission said that the police name had been changed, “which should advise and encourage the police to move in the direction of more community interaction, higher standards etc, transparency, …”. The history makes it clear that there was certainly no intention to use the word “force” in relation to the police.

As Justice Mwita said, it would have been perfectly possible for the drafters to include the police in the power under Article 240(8) but they did not do so. The only “forces” we have are the KDF. There is no power in the Constitution to send the police anywhere outside the country. The Constitution does not forbid it either.

However, Justice Mwita said there was nothing in the Constitution to indicate that sending police overseas was prohibited. He was very clear that Article 243, which says that “The National Police Service is a national service and shall function throughout Kenya,” does not mean that it cannot function outside the country. This is clearly right – the purpose of this statement is evidently intended to make it clear that devolution did not constrict the national police.

Similarly he says that, by speaking about the possibility of the KDF being deployed overseas, but not mentioning the police in this context, Article 240(8) does not mean that the police could not be sent overseas by some other process – just not by this one.

The National Police Service Act includes a procedure for Kenyan police to be used overseas. Since the Constitution does not prohibit this, Justice Mwita’s conclusion had to be that the deployment of police in Haiti must comply with this Act. Might police still be deployed to Haiti?

This involves looking at what the Act says, namely: (i) on the application of the government (ii) of a “reciprocating country”, (iii) the President may order as many police officers as the President thinks fit to go to that country (iv) to assist the police service of that country (v) in a temporary emergency.

Insisting on its being “on the application of the government” means that it could not be something decided by the UN without approval of the receiving government. This sounds good – though one wonders about situations of serious state failure or civil war when the concept of the government of a country may not quite fit reality. However, in Haiti there is a government.

The expression “reciprocating country” is said by the Act to mean a country that has a similar provision in its law. And it seems that Haiti does not. The provision is not very clear; does it mean the other country’s law must be as detailed as our Act on the subject, which is very detailed? Why is it here at all, when sending the KDF has no similar pre-requisite?

The Act does not require parliamentary approval, why not if approval is required to send “forces”? Why did Parliament pass this?

The judge found these sections of the Act constitutional. But is the power of the President to send police officers (with no apparent requirement of approval of, or even consultation with, the Inspector General of Police) constitutional? The latter exercises “independent command” over the police. Is is this consistent with a power of the President to whisk away perhaps 1,000 officers, as was planned for Haiti? The Commission on the Implementation of the Constitution made this point in 2011.

A final thought: did the government deliberately choose to misread the Constitution so as to avoid the difficulties in following the Police Service Act? If so, Justice Mwita has clearly put a stop to it.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-02-04-ghai-understanding-high-courts-haiti-decision/

Image: HANDOUT