The Star (Nairobi)

28 November 2012

Kenya: Judge Lenaola Pulls Out of the Baragoi Massacre Case

A judge has disqualified himself from hearing a case challenging the deployment of military officers to Baragoi and Samburu County. Justice Isaak Lenaola yesterday cited personal reasons for quitting the case filed last Friday by Joint chief whip Jakoyo Midiwo.

When the matter came up for direction before him, Judge Lenaola told parties that he was uncomfortable handling the case and referred the file to Justice David Majanja.

He, however, directed the ministers of Internal Security and Defence as well as the Attorney General to respond to the suit within 14 days. He listed the case for hearing on December 10.

In the case, Midiwo wants the court to compel the government to immediately remove the KDF officers from Baragoi and neighbouring regions where more than 40 police officers where killed by armed cattle raiders two weeks ago.

He says the government did not seek parliamentary approval while sending the KDF officers to Samburu, Turkana, Baragoi and Garissa to calm the area.

The whip argues that by deploying the KDF to the conflict area to quell civil unrest in absence of tangible evidence of unrest and without obtaining Parliament's approval, the government contravened provisions of the constitution.

He also accuses the government of risking the security situation of the entire country. "In the view of the fragility of security situations in the country owing to the consequences of the just concluded war against al Shabaab coupled up with the impending general election, the national assembly should have been given the opportunity to debate the propriety of involving KDF in Baragoi and Samburu area," he says.

It is his contention that civilized states reserve the use of military force from the protection of territorial integrity and that it is only in exceptional cases that states permit's the use of military forces.

According to him, the military can only be involved in" extreme and severe situations of anarchy complete lawlessness and armed insurrections" that are beyond the controlling capabilities of police force.

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