Kenya-UK military pact raises legal, constitutional questions

The presence of Britain’s infantry units living and training on Kenyan soil remains abstract for many Kenyans despite its ramifications on the country’s sovereignty.

The British Army Training Unit in Kenya (Batuk) based in Laikipia is considered by critics to be a imperial construct that keeps Kenya in the Western orbit by force.

Batuk’s notoriety is of particular relevance for its bloody human rights record through rape of local women and abandonment of offsprings by British soldiers, deaths and maiming through murder and unexploded ordnance.

In recent years arson and wanton destruction of the fragile ecosystem has added a new layer of British torment.

Despite this sordid past with BATUK, the Kenya government is pushing through a new pact whose Article 6 (5)(9) indemnifies British soldiers from murder charges in violation of Kenyan and international law.

The Anglo Kenya military pact raises other grave legal and constitutional questions.

On March 21 2023, Kenya’s National Assembly approved the agreement that the Assembly intends to ratify.

The document adopted on March 21, 2023 arose from a bilateral agreement signed on July 27 2021 by Kenya’s former Defense Cabinet Secretary, Dr Monica Juma and the UK’s Ben Wallace.

On November 23, 2022 the new Ruto administration through then Defense Cabinet Secretary Aden Duale submitted it to the Assembly for ratification.

For years the Assembly’s Defence, Foreign Relations and National Intelligence Committee of the Assembly has marketed it as a radical improvement from previous agreements and recommended ratification on the grounds that UK’s “advanced defense capability due to the size and nature of its economy” is beneficial to Kenya.

Besides conferring immunity for murder the most stringent argument against this treaty is that, without subjecting it to a referendum, the presence of foreign military forces of Kenyan soil, enjoying legal immunity and outside traditional diplomatic immunities under the Geneva Convention violates Kenya’s sovereignty per Articles 1 and 255 of the Constitution of Kenya 2010.

Kahawa Garrison

Besides its traditional training facilities near Nanyuki the pending treaty allows the British to control Kahawa Garrison and Laikipia Airbase for an annual sum of Sh27 million and Sh10 million, annually, respectively.

“The Government of the Republic of Kenya grants the United Kingdom of Great Britain and Northern Ireland a license to occupy and use the permanent infrastructures constructed by the United Kingdom of Great Britain and Northern Ireland at Laikipia Airbase and Kahawa Garrison during the validity of this Agreement.”

The Anglo Kenyan military pact is a bilateral treaty as defined by the Treaty Making and Ratification Act of 2012.

Article 71 of Constitution of Kenya decrees that a treaty is subject to ratification by Parliament if it involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resources.

Because it contains an extensive segment on the environment and involves occupation of Kenya’s land, air and waters by a foreign military the treaty ought to be ratified by the Senate and National Assembly that constitute Parliament per Article 93 of the Constitution.

The Act, expressly, states that alterations of Kenya’s sovereignty, independence and territorial integrity which the Anglo Kenya military pact does should be decided by Kenyans in a referendum.

Further he British enjoy the right to fly into and access all military and civilian airports and seaports in Kenya.

Prior to negotiating any treaty, the President is required under Kenyan law to prepare a Cabinet paper to need the agreement seeks to solve, costs, risks and determine whether the intended treaty conforms to domestic law and national interests. The president must allow the public and affected county governments to express their approval or opposition.

The paper should be published for public scrutiny before negotiations. There is no public record this procedure was followed yet the pending agreements, expressly, forbids devolved governments from dealing with the British without the president’s permission.

Parallel systems

The British also extracted a concession forbidding capital punishment for its military or defense employees on Kenyan bases whatsoever.

“...any sentence of death penalty or corporal punishment [be] commuted to a prison sentence or fine...” says the agreement that also decrees that the host nation “...shall give sympathetic consideration to any request... that the sentence passed on a member of the visiting army be served in the home country.”

British soldiers are also excluded from Kenya’s Court Martial. These concessions impose unconstitutional demands on judges and magistrates and amounts to parallel criminal justice and penal systems.

It means that when there is a British soldier in the dock in Kenya, local magistrates or judges must rule in a prescribed manner regardless of the facts and evidence.

Here lies an egregious assault on courts’ independence and discretion.