Growing influence of the military a threat to our Constitution

The subordination of the armed forces to civilian rule is a cornerstone of democracy but the manner in which President Kenyatta is eroding this principle is a stark indication of the failed attempt to consolidate democracy and the law in the country, writes Trevor Ng’ulia.

There is a growing, and to some extent, justified concern that President Uhuru Kenyatta is subverting the principle of military subordination to elected government through his penchant for military garb, reliance on military solutions to address internal security challenges and recent appointments of army personnel to key state positions.

Kenyans are also discomforted by Mr Kenyatta’s plan to create a Metropolitan Command to secure Nairobi and to introduce legislation that would keep security and military spending a secret on the basis of “national security.”

The apprehension is justified when it is remembered that power, according to Lord Acton, corrupts, and absolute power corrupts absolutely.
We know from history that powerful armies often make their own rules, which they impose on the rest of society despite strong constitutions.

By appointing a military man to head the spying agency and a spy to head the police, the President is creating a military-intelligence apparatus to secure the nation. But the Kenyatta military-intelligence complex, if not checked, could exert total influence on the whole state and nation.

BLACK MAMBA

The growing power of the military and the NIS agency abounds:a middle-level intelligence officer has just been appointed to head the National Police Service; the head of NIS is former head of military intelligence; the Cabinet Secretary in charge of Internal Security is a retired army general; his Principal Secretary previously served in the ministry of Defence; and the Director of Immigration is a former army general.

The militarisation of security agencies has become vogue in Kenya. Mr Kenyatta has gone about militarising the state without due regard to civilian control of security agencies, danger of military creep and long-term effect of using defence forces to perform police functions.

Preference for the armed forces to address incidents such as Tana River, Mpeketoni, Kapedo and Westgate has been an indicator of the President’s strategy to militarise security.

The proclivity to use the military can be traced to 2008 when it was deployed to clear roads and patrol parts of the country engulfed by the post-election violence.

But the military also carried high-profile mop-ups in Wagalla and West Pokot in 1984 that left rotten eggs on its face. By continuing to use the army to confront internal insecurities, the government is allowing it to meet the same fate as the General Service Unit.

When Maj-Gen Hussein Ali took over as Police Commissioner in 2004, he adopted a heavy-handed approach of dealing with crime using the GSU, a paramilitary force. This resulted in the public losing respect and fear it had of the GSU, which was henceforth treated as a regular police force with less reverence and more contempt.

Another development pointing to the militarisation of security is the revamping of the National Youth Service through a curriculum that includes paramilitary training.

COMBAT

Since the NYS will be the main supplier of security personnel, it is obvious that if absorbed into the regular police, such officers would have a preference for combat rather than crime prevention.

Kenyans should not be surprised when they wake up one morning to find the military patrolling the streets once the Nairobi Metropolitan Command is operationalised.

This Command will have a specialised unit to prevent and to rapidly respond to crimes like terrorism, hostage-taking, cyber-terrorism and biological/chemical threats — purely police functions.

Kenyans are wondering why the police service should not acquire specialised capabilities — if it lacks them — rather than cede its responsibilities to the army. By nature, function, preparedness and capability, the army is unsuitable to fight an urban asymmetrical warfare.

Indeed, Kenyans should be terror-stricken by one of the proposed Command’s core function of “conducting information operations.”

This could entail rounding up people, trucking them to Kasarani, holding them under dehumanising conditions and interrogating them until they divulge information on terrorists and other suspects.

This function, similar to what Uganda’s dreaded Black Mamba did before its disbandment in 2012, should terrify many Kenyans.

The Uganda People’s Defence Forces’ special elite intelligence unit had gained notoriety for operating as a law unto itself and ignoring other agencies.

There are no plans to subject the army to the Independent Policing Oversight Authority or a new civilian authority that ensures it respects our rights.

The harbinger to militarisation of security was glaringly witnessed at the Westgate Shopping Mall when troops forcibly displaced a special police unit and used brute force to confront a terrorist siege.

KDF LOOTING

This operation tarnished the public image of KDF when its personnel were captured on video carrying looted goods.

According to Sections 32 and 33 of the KDF Act, troops may be deployed to restore peace in Kenya, or jointly with the police in emergencies or in civil unrest. In the first case, the Chief of the Defence Forces is in command while the Inspector-General of Police commands, controls and oversees joint operations.

It is obvious that KDF is not trained in detecting and confronting terrorists and criminal gangs as evidenced by a dramatic spike in violent crime despite the surge of military responses to security challenges.

The heavily militarised approach to fighting terrorism has yet to bear tangible results. There are no records indicating that terrorism and other forms of criminal violence have dropped.

We are, however, aware of the increased number of terrorist attacks since the militarisation of security agencies began.

Lessons from Egypt show that once security agencies and the military have entrenched themselves in government, they create a “deep state” that undermines civilian rule and can easily oust a civilian government if it tries to control the security sector.

The Egyptian experience has taught us that a democratically elected government can be ousted from power and be replaced by the military.
Egyptian securocrats not only subverted a civilian government but also manipulated the African Union to change its principle on unconstitutional changes of government enshrined in its Democracy Charter.

'GOOD COUPS'

The July 2014 Summit adopted the report of the AU Panel on Egypt, headed by former Malian President Alpha Oumar Konare, that laid down conditions for “good coups.”

This report recommended that the AU could in future accept military putschs if they took place under “unique set of circumstances” similar to Egypt’s.

The “AU norms on unconstitutional changes of Government” have now been changed to accommodate “popular uprisings” under the following conditions: when the government descends into “total authoritarianism to the point of forfeiting its legitimacy”; when the constitutional process for effecting change of government is absent or is totally ineffective; when popular uprisings attract “significant portion of the population” and involve “people from all walks of life and ideological persuasions;” when the military is not directly involved and when “popular protests are peaceful”.

Militarisation of security is an indication of the Kenyatta government’s failed and destructive counter-terrorism policy.

The government should have given priority to building a strong, efficient and professional police service to address violent crimes and ensure community participation in policing.

To eradicate the scourge of violent crime, investment is needed, not in military equipment and militarisation of policing, but in equitable and sustainable economic development that addresses the basic needs of all Kenyans.

With the deep embedment of the military into the state, what are the chances that it would not determine who wins the next presidential elections?

After testing the sweetness of state power, what will stop the military from claiming more power and using it to control or run the state?

The subordination of the military to civilian rule is a cornerstone of democracy. The manner in which President Kenyatta is eroding this principle is a stark indication of the failed attempt to consolidate democracy and constitutionalism in Kenya.

THRASHING DEMOCRACY

Details of civilian control of the military are clearly spelt out in the Constitution. They are based on a ground that a competent, professional military is properly subordinated to civilian authority. This universally practised dictum is now under siege in Kenya.

According to the Constitution, the President is the Commander-in-Chief of the Kenya Defence Forces, “the national security organs are subordinate to civilian authority,” six out of nine members of the NSC, the highest security organ in the land, are civilian, the military can only be deployed “to restore peace in any part of Kenya affected by unrest or instability…with the approval of the National Assembly,” and the Defence Council is headed by a civilian.

The reason the framers of the Constitution put the military and security agencies under civilian control was to protect Kenya’s territorial integrity and sovereignty, its people, their rights, freedom, property, peace, stability and prosperity and other national interests.

It is noteworthy that the KDF Act acknowledges the principles of national security enshrined in the Constitution but is silent on Article 239(5) that imposes civilian control over the military, and has instead adopted the objectives and functions of the National Police Service prescribed by the Constitution as its guiding principles.

There is no gainsaying that Kenya is facing unique security challenges.

But should these challenges be addressed by thrashing our democratic values, civil liberties and the Constitution?

Should we sacrifice a tradition and a universal practice of placing the security sector under civilian control in the guise of fighting terrorists and other criminals?

Prof Ng’ulia is a security expert consulting for private corporations and governments