Kenya-Haiti mission faces controversy over legality

Kenya’s move to contribute its police officers to a mooted security mission to Haiti is facing legal challenges, including from some the country’s top legal minds.

Former Defence Cabinet Secretary Eugene Wamalwa and former Chief Justice Willy Mutunga have labelled the move illegal and risky.

Dr Mutunga argued that the planned deployment of 1,000 police officers would not only be unconstitutional but also form a pattern where government officials disregard the Constitution at will.

“This explains why Haiti, trade pacts, foreign investments, and borrowings are done behind the backs of Kenyans,” he wrote in a commentary in the Star newspaper on Thursday.

“And this is unconstitutional. Foreign countries that subvert the dictates of our Constitution should not expect the Kenyan people to pay the unconstitutional loans that they gave the compradors in violation of the Constitution. It is the same countries that pontificate about democracy, human rights, social justice, and the rule of law.”

Dr Mutunga, Chief Justice until 2016, was backed by other legal experts, including Dr Ekuru Aukot, one of the experts who wrote the Constitution in 2010. He argued the Kenyan police are ill-equipped, yet they are being “sent to Haiti to clean up the USA and France dirty work... Sadly, the money won’t even go to them or their families.”

The views arose as Nairobi defended the Haiti mission. Foreign and Diaspora Affairs Cabinet Secretary Alfred Mutua said Kenya has had to do groundwork already, including a reconnaissance to understand the terrain in which the officers will work.

“We are working with other partners to get UN mandate. We will thereafter hold meetings to garner support for the deployment,” Dr Mutua said, referring to the UN Security Council resolution needed to provide legal backing for the mission. That resolution has been drafted by the US and endorsed by Ecuador but will need the approval of the 15-member Council.

The Multinational Security Support (MSS) has, however, faced criticism, with some saying that Kenya is just as needy as Haiti when it comes to policing, and that the officers will also face a language barrier.

Dr Mutua said a reconnaissance team did a quick local poll in which “80 percent of the people” supported the MSS. The officers would also undergo a crash course in French, the official language of Haiti. Majority of Haitians speak Creole, a mixture of French and other languages.

According to Dr Mutua, ten other countries have so far indicated their willingness to send their troops to Haiti or finance the mission.

They include Canada and the US who will provide training facilities while Jamaica, Antigua and Barbuda, and the Bahamas have also pledged personnel and provide operational support to Haiti police against gangs, guarding key installations and roads and training the Haitian police.

“We expect that within a few months, say three or four months from now, we will be in Haiti helping our brothers and sisters. The latest will be January, and we will be able to send our 1,000 troops to Haiti to help in peace mission and rebuild their country,” he said Thursday at a regular press conference on Kenya’s foreign engagements.

Later, in an interview with the BBC, Dr Mutua said Haitian gangs are dangerous because they haven’t got their match yet.

“This force will need to disarm the thugs, gangs…free kidnapped people, and free the women being raped. But we don’t think there is going to be a lot of violence, because these gangs are powerful only because they don’t have anybody to match them. “They don’t have support of the people. People are saying enough is enough.”

Kenya, however, has faced questions, including the face that Haiti’s previous five foreign missions failed to deliver peace.

Celebrated for becoming the first black majority country to defeat slavers and colonialists in the 18th century, its history has been wound in coups, assassination of Presidents and rabid criminal gangs. The last President to be killed in office was Juvenal Moïse who was shot dead at his palace in Port au Prince in July 2021.

Already, the MSS has been endorsed by the Caribbean Community (Caricom), the regional bloc to which Haiti belongs, boosting MSS legitimacy. In fact, the Mission was first proposed by the Prime Minister of Haiti, Ariel Henry, who said he needed to secure the country’s key installations and prepare for elections.

Last week, President William Ruto said the world had let down Haiti after it failed to end chaos there.

“Haiti deserves better from the world. The cry of our brothers and sisters, who were the first people to win their struggle for freedom from colonial tyranny, has reached our ears and touched our hearts,” he told the UN General Assembly on Thursday.

“Doing nothing, in the face of the historic isolation, neglect and betrayal of the people of Haiti, is out of the question.”

Locals still have a bitter taste in their mouth from previous missions. David Abdulah, a member of the Regional Executive Committee of the Assembly of the Caribbean People says Haiti’s painful experience of foreign military intervention, means the MSS may worsen the crisis.

“It is clear to us that Kenya is being promoted as a proxy since the countries of the Core Group – the US, Canada and France – recognise that the resentment within Haiti to their military intervention would be immense,” he wrote on behalf of the Assembly to the Caricom, in an open letter on September 5.

“We need to appreciate the social dynamics of Haitian society and the fact that there is an elite that wields significant power. Henry and any successor to him established through an electoral process that is neither free nor fair will simply enable the elites to maintain their hold on power – much to the satisfaction of the Core Group.”

Kenya has not explained, yet, the direct benefits to accrue from the Mission but Foreign Affairs and Diaspora Cabinet Secretary Alfred Mutua argued on Friday that “the eventual stability and prosperity of Haiti would not only be beneficial to her neighbours and the region but would also be a force for good for global peace and security architecture.

It will need money. US Secretary of State Antony Blinken told the same meeting on Friday in New York that the US government will provide $100 million in direct support to the MSS, if Congress approves. The US already asked its nationals to leave Haiti.

“And our Department of Defence is prepared to provide robust enabling support – including planning assistance, intelligence support, airlift, communications, and medical support,” Blinken said, but called on more donors to join.

When Caricom first endorsed the MSS in July, protests ensued in Haiti by opposed to the deployment. On Friday, gangs in Haiti, which have in the past blocked access to the ports, called for Henry’s ouster.

The Multinational Security Support has been opposed by black lobbies in the US.

The Black Alliance for Peace, a rights lobby against what it calls imperialism, said Kenya’s proposal to lead what amounts to “a foreign armed intervention in Haiti.”