The Kenyan High Court in Nairobi ruled on Friday that the state’s decision to deploy police officers to Haiti was unconstitutional. According to the court, Kenya can only send police officers to Haiti if Kenya and Haiti have a reciprocal agreement under sections 107 and 108 of the National Police Service Act. The decision comes amid warnings from UN experts about surging gang violence in Haiti.

Justice Enock Chacha Mwita commented: 

It is no doubt a great honour for Kenya to offer to lead the Multinational Security Support (MSS) mission for Haiti. Similarly, Kenya has an obligation to join the community of nations in assisting Haiti as part of its international obligations.  However, any endeavour towards that end must be in accord with the constitution and the law. The effort. and in particular, the attempt to deploy police officers to Haiti must fail for lack of constitutional and legal foundation.

The petitioners claimed that the decision to send police officers to Haiti was unlawful because it lacked public participation. They also asserted that provisions 107, 108, and 109 of the National Police Service Act were unconstitutional as they allowed police officers to be deployed outside of the country. This, according to the petitioners, violated Article 240(8)(a) of the Constitution. The petitioners also argued that the National Security Council could not dispatch the National Police Service outside the country under article 240 (8) (b) of the Constitution because it was a “service” not a “force.”

The respondents opposed the petitions on several grounds, arguing for a wholistic and purposive reading of the Constitution, which would have allowed the deployment of the National Police Service to Haiti, despite it not being a force.

The court observed that Article 243(3) of the Constitution established the National Police Service as a countrywide body, with no clear ban on its functioning beyond the country’s borders. Nonetheless, the court concurred with the petitioners’ and interested party’s arguments, holding that the National Security Council can only deploy forces, not services, for international support operations as per the Constitution and Kenya Defense Forces Act.

The court also concluded that Sections 107, 108, and 109 of the National Police Service Act did not infringe Article 240(8) of the Constitution as the latter does not preclude the deployment of the National Police Service outside Kenya. The deployment of police officers, as outlined in Part XIV of the National Police Service Act, requires a reciprocal agreement between Kenya and the foreign country in question. As no such agreement existed at the time of the judgement, the court found the deployment of police officers to Haiti unlawful.

The recent court judgment comes in the wake of parliamentary endorsement of the Kenyan-led mission to Haiti in November, despite facing considerable opposition from leaders of the opposing political faction. This approval sought to defy the high court’s temporary suspension of the mission pending further legal deliberations.

The state declared in July 2023, its preparedness to dispatch 10,000 police officers to Haiti with the aim of addressing and mitigating the prevailing gang violence in the nation. Subsequent to this declaration, the UN Security Council granted its authorization for the deployment of a multinational security support contingent to assist Haiti in managing the complex security situation. As of the time of this article, no Kenyan forces have been deployed.