NAIROBI – The High Court on Monday issued a temporary order barring the government from deploying police officers to Haiti or any other country until a case filed before it is heard.
The petition lists President William Ruto, Interior Minister Prof Kithure Kindiki, Inspector General of Police Japhet Koome, National Assembly Speaker Moses Wetangúla and Attorney General JB Muturi as the respondents.
The case filed by Dr Ekuru Aukot and Thirdway Alliance chairman Miruru Waweru on Friday challenges Kenya’s participation in the UN-approved mission aimed at helping the Caribbean nation tackle rampant gang violence, with the petitioners arguing the move is illegal and gross violation of the Kenyan Constitution.
The High Court order bars the government “from deploying police officers to Haiti or any other country until 24th October 2023.”
In July, Kenya pledged to offer 1,000 police officers after Haiti appealed for international help with security personnel to assist in its battle against gangs blamed for spiraling violence.
The petitioners, however, argue there was no request by the Haitian government, a cabinet resolution on the plan and that the Constitution does not envisage the deployment of police officers outside Kenya.
Justice Chacha Mwita ordered that the pleadings be served on the respondents immediately and that the respondents file responses to the petition within three days after service.
The petitioners will then have three days after service to file and serve a supplementary affidavit, if any, together with written submissions to the petition, not exceeding 10 pages.
Once served, the respondents will have three days to file and serve written submissions to the petition, also not exceeding 10 pages ahead of October 24 when new directions will be given.
The United Nations estimates some 200,000 Haitians have been displaced during escalating violence, with armed gangs carrying out indiscriminate killings, kidnappings, gang rapes and torching people’s homes.
According to the petitioners, the deployment of the police officers is “not only nonsensical and irrational but unconstitutional.”
The decision to deploy did not involve public participation and is also unconstitutional because only the Kenya military can be deployed outside the country, according to the petition.
Dr Aukot has also asked the High Court to declare Sections 107, 108 and 109 of the National Police Service Act unconstitutional, as they clash with the Constitution.
The sections allow the President to deploy police officers to other countries that have good legal rapport with Kenya. However, Dr Aukot argues the three laws are in conflict with articles 240 and 243 of the Constitution.
Article 240 gives authority to the National Security Council to deploy national forces outside the country; Article 243 establishes the National Police Service and gives it authority to operate throughout Kenya, while allowing Parliament to enact further laws to govern its enforcement. Dr Aukot holds that Article 243 restricts the work of police officers to within Kenya’s borders.
“Haiti is not a ‘reciprocating’ country as per the definition provided in section 107 of the (NPS) Act. Even if Haiti was a reciprocating country, which is vehemently denied, Haiti has not made any application for deployment of Kenyan police service to their country and the deployment is based on a UN Security Council resolution passed on October 2, 2023, which in any case cannot supersede the provisions of the Constitution and the Act,” Dr Aukot argues.
He adds that to the extent sections 107, 108 and 109 of the National Police Service Act provide for deployment of the service under reciprocal arrangements with reciprocating countries, the said sections are unconstitutional since they offend Articles 240 (8) and 243 (3) of the Constitution.”
