Judge declines to order military back to their barracks

“It is common knowledge that by its nature and training the military is not equipped or is ill equipped to deal with civilian population as it is trained to deal with armed combat as its principle is primarily suppression through the use of force to resolve crisis,” Mugambi said.

“I would therefore agree with the petitioner that to deploy the military in a blanket manner without defining their scope of operation and the duration of their operation is a dangerous trend that can bring about militarisation of the country which is antithetical to the enjoyment of rights and freedoms,” he said.

The judge however said that involvement of the military is critical to protect properties and government installments. He observed that the Supreme Court and Parliament had been vandalised after peaceful protests turned chaotic.

Justice Mugambi was of the view that to strike a balance, the government should publish crucial information for Kenyans to scrutinise and be informed.

At the same time, the judge directed that the file will remain open for oversight and Kenyans to raise concern if there is a violation of the law.

In the case, Law Society of Kenya (LSK) lawyers led by its president Faith Odhiambo argued that there was no need of having the military out of the barracks.

Ms Odhiambo told the court that the last time KDF was in the streets was during the attempted 1982 coup.  She argued that it is only when and if the president declares a state of emergency that the disciplined forces can leave their bases.

 “I ask you to disregard the definitions that have been given. The president will make a declaration of emergency and the declaration is made in writing under Article 135. It is just then when the Kenya Army can be deployed and report to Parliament. Nothing was done. Parliament’s permission was only sought after deployment,” argued Odhiambo.

Other lawyers representing LSK were Hosea Manwa, and Chrysostom Akhaabi.

Akhaabi argued that the approval was sought after the deployment had happened. He claimed that the military personnel had already blockaded Lenana and Dennis Pritt Roads by the time the National Assembly was considering the motion.