BY DR. MY ELMI (PhD)
The military expedition in Kapedo is unconstitutional and callous criminal act of collective punishment of the Pokot tribesmen of Baringo county committed in the name of national security. Chapter fourteen of the constitution section 238(2a) states “National security shall be pursued in compliance with law and with utmost respect for the rule of law, democracy, human rights and fundamental freedom” while the killing of the policemen in Kapedo was equally heinous crime by criminal gangs who have ruled and roamed with impunity in this area for far too long in the name of cattle rustlers.
The deployment of the military without parliamentary approval was a contravention of the constitution and a kneejerk reaction aimed to provide a quick fix solution. Section 241(3c) of the constitution state the Kenya Defence Forces “may be deployed to restore peace in any part of the Kenya affected by unrest and instability only with approval of the national assembly” The insecurity in the Arid semi-Arid Land (ASAL) region is a perennial problem which has existed in all the successive Governments from the colonial days to Jubilee.
The collective punishment is an ancient strategy which is as old as history and has been applied since second century BC during the Qin Dynasty of China is a form of retaliatory action whereby a suspected perpetrator’s family, friends or entire ethnic group are targeted. The punished group usually may not have direct association with actual criminals as in the case of Kapedo now and Wagalla in 1984.
Historically the occupying powers have used collective punishment to retaliate against and deter attacks on their forces by resistance movement by destroying entire towns or villages, where the attacks have occurred. This technique is largely favored by the Israeli forces in Palestine occupied land. The partial removal of potentially troublemaking ethnic group was a technique used constantly favoured by Stalin during his carrier and has been used many times by many different regimes and governments including the German Nazi , the British in Kenya during the Mau Mau , in South Africa during the apartheid regime etc. The excuses for collective punishment have being reprisal, banditry, terrorism etc., which is always available for use by terror regimes. Collective punishment is a war crime; the Geneva Convention of 1949 protects and provides humanitarian protection for civilian in war zones.
Collective punishment almost always leads to atrocities and massacre like Wagalla massacre of 1984 in Wajir County occasioned by the military during the Moi regime where more than 5000 Kenyan of the Degodia clan were exterminated.
The situation in Kapedo is critical since the military incursion thousand of civilian have fled their homes , there are reports of brutality , torture , displacement , burning of houses and business premises and killing of innocent people and domestic animals. It’s reported that the military used excess forces to smoke out the criminals in their suspected hideout using aerial bombardment and motor fire, the collateral damage to the civil population and their properties was immense.
It seems ,the military as an institution in Kenya is above the law because of the atrocities committed by the military in many places against the Kenyan people with impunity are many and their strategy of choice is collective punishment which is a misrepresentation of their constitutional duties. The unorthodox temptations of not using generally accepted principle of dealing with criminal gangs through effective investigation, intelligence gathering and the immense collaboration with civil population to identify, engage and neutralize the actual criminals is an indication of failed system. The Kenyan tax payer is investing heavy in the military. The Defence Forces are among the largest consumers of the national budget. Isn’t time the Kenyan people ask themselves are they getting value for their money? Senior military, police and civilian officials who knew or should have known of such crimes in Kapedo but took no action may be criminally liable as a matter of command responsibility. The “war on banditry and cattle rustling” rhetoric does not justify the gross violation of human right as enshrined in the constitution. The criminal gangs must be pursued to face the full force of the law using modern and sophisticated strategies in warfare.
There are legitimate fears in escalating lawless in Rift Valley and the government is facing complex challenges in dealing with perennial banditry and cattle rustling in this region with porous borders .The authorities face difficult questions on how to best establish the rule of law in a remote, poverty-stricken region largely inhabited by pastoralists who have little knowledge of or confidence in state institutions that have long neglected them and surrendering their weapons in the midst of more hostile tribes in the neighboring Turkana county and the other hostile tribes of Ethiopia , Uganda and Sudan who are ready to bounce on them, the moment the government disarms them and take away their livelihood.
The solution lies in long time strategies and planning with multi-sectoral and multi-national approach towards the eradication of the banditry menace. Collective punishment should never be used by civilized nation that respects the rule of law like Kenya particularly on its citizenry. The Kenyan security forces must be proactive rather than reactive.
The writer is the Director of Garissa Campus, Mount Kenya University and a former military officer.