To Intervene Or Not? : Unpacking The Proposed Kenyan Military Intervention In Haiti Gang Violence

Since the assassination of its former President; Jovenel Moise in 2021, Haiti has been subjected to violence orchestrated by armed vigilante gangs. These gangs are armed with automatic weapons smuggled into the country and on many occasions out-gun the local police. Statistics from the United Nations show that the gangs control up to 80% of the country’s capital. Their quest to take over parts of Haiti has seen hundreds of locals being displaced and being subsequently forced to live in shelters. This situation has fuelled the need for Haiti to regain control of the lost territory.

The need for the international community’s intervention in Haiti was highlighted by Mr. Antonio Gutemes, the United Nations Secretary General on 1st July 2023. He called upon UN member states for robust international force to help the Haitian authorities to fight the criminal gangs, while emphasizing the need to make the Haitian crisis the international community’s top priority.

The United Nations Charter requires states to seek approval of the Security Council before embarking on a military intervention in another state, regardless of possible reasons for such intervention. Article 43 (1) of the Charter further requires all member states to make available to the Security Council on its call; armed forces, assistance and facilities necessary for the purpose of maintaining international peace and security. Kenya became a member of the United Nations in 1963 and is therefore bound by its treaties and documents.

In response to the call by the UN security council,  Kenyan President; Dr. William Samoei Ruto, proposed to the council to send 1,000 Kenyan police officers to Haiti to conduct an intervention force that would neutralize the armed gangs, protect civilians and restore peace, security and order in the country. On 2nd October 2023, the UN Security Council voted to send multi-national armed forces led by Kenya, to help Haiti’s police fight the gangs. The resolution was drafted by the United States and Ecuador and was approved by 13 states which voted in its favour.

This decision elicited mixed reactions from both Kenyans and the International Community, with many questioning the rationale for the decision.  Questions have been posed as to the ability of Kenya’s Police Force to subdue the Haitian gangs without violating human rights due to their record of responding using excessive and unnecessary force. Several human rights organizations have voiced concern over the ability of the Kenyan police force to act humanely and responsibly in Haiti. Amnesty International, in a statement by its Executive Director, stated that it had documented more than 30 cases of Kenyan police officers killing protesters through shootings and tear-gas suffocation during various protests in Kenya in the course of the year. It consequently highlighted need for the mission to adhere to UN human rights due diligence policies.

Further concerns have arisen as to the legality and constitutionality of Kenya’s proposed Haitian intervention. On Monday 12th October 2023, the High Court gave a ruling issuing a conservatory order, barring the deployment of Kenyan police officers to Haiti until the case filed by Thirdway Alliance Party, which claimed that the planned deployment was a violation of Kenya’s Constitution, was heard.

Question therefore arises as to the position of the planned intervention in Kenyan law; whether the move is consistent with Kenyan Law. Section 2 of the Armed Forces Act Cap 199 defines ‘armed forces’ as the forces of the Republic of Kenya namely; the Kenya Army, the Kenya Air force and the Kenya Navy together with the constabulary. The President of Kenya is designated as the Commander In Chief of Kenya’s armed forces and is conferred the responsibility of controlling and directing the country’s armed forces under Section 6 (1). Part IV of the Armed Forces Act provides for cooperation of Kenya’s armed forces with the forces of other countries, with Section 10 (3) specifically granting the President power to order that any unit of the armed forces to be employed outside Kenya for any duty or employmenton the advice of the Defence Council.

According to Section 13 (1) of the Armed Forces Act, the President of Kenya has authority to place the armed forces, or part of it to act in cooperation with the military of another country. However, this power may only be exercised subject to the National Assembly’s approval. This is to mean that despite the UN Security Council’s approval of Kenya’s proposed intervention in the Haitian war, Kenya’s national assembly has to approve the decision before any army personnel can be sent to the country.

Kenya’s proposed intervention to Haiti is therefore constitutional as it is in line with the laws of the land and international law. However, due consideration has to be made regarding the impact such a move will have on Kenya. The United Nations recommends a ratio of one police officer for every 450 citizens. Currently, Kenya has a ratio of one police officer for every 1000 citizens, going to show that the police force in the country is under staffed. Consideration also has to be given to the language barrier, Kenya being an English speaking country while Haiti is a French-speaking state. This may greatly impact the success of the proposed intervention. The ball is in the national assembly’s court to determine whether or not it is in the best interest of the country and its citizens to intervene in the Haiti war.

By Rebecca Patience Wandera,

Lawyer;

Oseko Advocates LLP.

 

 

 

 

 

 

 

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