Court okays military deployment to contain demos, orders terms gazetted in two days

High Court Judge Lawrence Mugambi greenlighted the deployment and ordered that the terms of the deployment be gazetted within two days. 

In the meantime, the military will continue to be deployed to protect critical government infrastructure. 

"Continuation of military assistance is necessary in view of the need to preserve order and protect military infrastructure," Judge Mugambi said. 

While delivering the verdict during a virtual hearing fraught with technical difficulties, Judge Mugambi argued that the deployment of the military in a blanket manner, without specific details about the period of deployment, was likely to result in the militarization of the country. 

"The public was not fully appraised of the extent of the military intervention hence suspicion," Judge Mugambi said.  

He stated that given that the military is not trained for civilian engagements, the blanked deployment would likely silence civilian populations exercising their democratic rights and drive a wedge between them and the servicemen. 

According to the Thursday ruling, the court will retain residuary powers to hear any complaints or violations of rights during the period of deployment. 

LSK had argued in the petition that a state of emergency should have been declared so that the KDF could be deployed to protect critical government infrastructure and restore order. 

They also argued that parliamentary approval was sought only after the deployment was gazetted, which violated Kenyan law. 

LSK, while challenging  the deployment, told the court in its petition that there was no emergency or critical security incident that required military deployment. 

According to LSK president Faith Odhiambo, the deployment should have been gazetted 24 hours after parliament's approval. 

Ms. Odhiambo said Defence Cabinet Secretary Aden Duale sought approval after the gazettement, which was unprocedural. 

The government, through the Attorney General, Justin Muturi, argued that the gazettement had followed due process. 

Judge Mugambi stated that the invasion of parliament and the Chief Justice's office by allegedly peaceful protesters met the definition of a "serious, unprecedented, and potentially dangerous situation requiring immediate action." 

Additionally, the loss of police control necessitated military intervention.