If the government’s KDF Amendment Bill goes through as planned, Parliament will effectively lose its constitutional oversight of the army.

Soldiers line up in Nairobi, Kenya. Photo by US Army Africa.

Amidst a growing sense of insecurity in parts of Kenya and the broader region over the past few years, the Kenyan army has been growing in visibility and importance.

The Kenya Defence Forces (KDF) has been deployed to fight al-Shabaab in Somalia; it has had to respond to the Islamist militants’ devastating attacks on the likes of Garissa University and Westgate mall; and it has been deployed to maintain security after communal clashes in a number of regions around the country.

This increased involvement of the KDF in security operations has led to the growth of its budget to a lofty Ksh91 billion ($870 million) in 2015/16. However, while this trend ought to call for more civilian oversight of the army’s operations and expenditure, the opposite is now being proposed.

The Kenyan government recently put forward some far-reaching amendments to the Kenya Defence Forces Act (2012). The amendment bill is currently in the committee stage in which members of the National Assembly and the public can propose further changes to the document before it goes to the National Assembly for the third reading and vote. But if the amendments go through as the government hopes, the result is that the defence forces would be shielded from any form of civilian oversight, including financial accountability to parliament.

If passed, the Defence Cabinet Secretary will no longer be required to submit an annual report to the president and parliament on the expenditure and work of the ministry. Meanwhile, the amendment bill also seeks to delete the requirement that the Auditor General scrutinises the financial records of the KDF.

The net effect of these proposals is that parliament would effectively lose its constitutional oversight of the army, and that the Cabinet Secretary for Defence would not be required to answer any queries arising from military operations or spending. At a time when civilian accountability ought to be enhanced, this bill looks set to reduce it.

Past misdeeds

These issues are not just questions of principle, but of immediate concern to the actions of the KDF in recent years.

Kenya’s military has been accused of human rights violations during its operations in Baringo, Mount Elgon, Garissa and Mandera among other areas, and its officers are rarely held accountable. Part of the problem is that there is no direct, easy and accessible mechanism for reporting violations and seeking redress.

On 16 September, the Kenya National Commission on Human Rights (KNHCR) released a report entitled ‘The Error of Fighting Terror with Terror‘, which claimed to have documented evidence of 120 cases of egregious human rights violations including 25 extrajudicial killings and 81 enforced disappearances in the ongoing crackdown against terrorism. The report accuses almost all security agencies, including the KDF, of complicity in these violations.

In another instance in November, 2014, West Pokot Governor Simon Kachapin and MPs from the region dispatched a team of human rights experts to probe alleged rights violations by the KDF during an operation in Kapendo, Turkana County. More than 50 people were said to have been injured in an operation aimed at recovering illegal firearms.

Going back further, the KDF was also said to have bungled rescue operations during al-Shabaab’s seige of Nairobi’s Westgate mall in 2013 after it took over the operation from the GSU Recce squad – an elite police unit that had cornered the attackers. More damaging yet was CCTV footage that emerged, showing soldiers looting the mall during the rescue operations. A commission of inquiry into the Westgate attack and response, promised by President Uhuru Kenyatta, was reportedly shelved due to fears it could expose sensitive details and lead to the passing of a no-confidence vote on the security chiefs.

As well as escaping accountability, Kenya’s military has also been tainted by corruption allegations. In January 2011, for example, the KDF was forced to justify the purchase of 15 Jordanian fighter jets, most of which were mechanically defective. The following month, the military faced allegations that regulations regarding the acquisition of armoured vehicles had been circumvented to help a South African firm win the tender. And in his latest report, Auditor General Edward Ouko queried the procurement process of purchasing 32 Armoured Personnel Carriers (APCs) at a cost of KSh1.1 billion ($11 million) and a further planned purchase of 75 armoured carriers at $25 million.

What next?

Kenya’s 2010 Constitution requires that policing must be conducted with respect for rule of law, democracy, fundamental freedoms and human rights and all national security organs remain subordinate to civilian authority. However, the proposed KDF bill falls short of these requirements and will not help instil values of discipline, preventing corruption, accountability, and upholding human rights.

Instead of the amendments being proposed, parliament and the Auditor General’s office ought to be strengthened in their civilian oversight roles not weakened, especially in addressing corruption in procurement. Meanwhile, efforts to hold to account KDF officers found guilty of human rights violations need to be enhanced, as they will go a long way in instilling public confidence in the forces as they undertake internal security operations.

The government could consider creating a KDF Ombudsman’s office staffed by civilians. This office could receive and address complaints against KDF officers and make binding recommendations to address them. Involving civilians in auditing military work is not new – indeed, the KDF has involved the public in its recruitment process, consistently using the media to emphasise that the process is open and free from manipulation and corruption. Such initiatives need to be deepened, extended and institutionalised. Furthermore, improving public knowledge of the existing accountability structures and how they can use them would help activate greater public use of the forums and enhance accountability.

As the amendment bill goes through its period of consultation before it returns to the National Assembly, Kenya is faced with a chance to reject the clauses that would remove the KDF from civilian oversight, a crucial cornerstone of holding the military accountable in a democratic society. It is crucial that this opportunity is seized.

Patrick Mutahi is a Research Fellow at the Centre for Human Rights and Policy Studies in Nairobi