Deploying Kenyan police in Haiti is Unconstitutional

Former Chief Justice Willy Mutunga

By Willy Mutunga, The Star, Sept, 28 2023

The matter of Kenya sending 1000 police women and men to Haiti is but one of the many decisions our government is taking without our participation and consent.

The Constitution is very clear that our foreign policy has to comply with the decrees of the Constitution. Foreign policy decisions by the government are unconstitutional when they violate any of the provisions of the Constitution.

Article 1 of our Constitution decrees that all sovereign power belongs to us, the Kenyan people.

Indeed, sovereign power is delegated to the national executive and can be exercised directly by the Kenyan people themselves.

In exercising that power directly we demand that our sovereignty must never be used to subvert the sovereignty of another country without our participation and ultimate consent.

Article 10 of our Constitution provides for our national values and principles of governance.

The values and principles implicated in the issue of Haiti are the following: patriotism, rule of law, participation of the people, inclusiveness, transparency and accountability.

The government by unilaterally sending a pre-mission of 10 people to Haiti to prepare the ground to send 1000 police women and men to Haiti before involving the Kenyan people, or their representatives in Parliament and Senate violated our sovereign power and the constitutional values and principles of governance.

The issue of Haiti is now with the UN Security Council awaiting its Resolution.

There is no doubt that Kenya will deploy these troops if the Security Council approves the resolution.

It is also in the public domain that the US Government has praised Kenya for the action it is about to undertake.

Under our 2010 Constitution, our foreign policy is not exempt from its provisions.

The Constitution was passed to reign in an executive that was authoritarian, opaque, and known to continuously subvert the will of the Kenyan people.

That is the political mischief and non-accountability of the executive that the Constitution sought to cure.

Since the promulgation of the Constitution on August 27, 2010, our executive has found the Constitution inconvenient for its dictatorial proclivities.

Examples of violations of the rule of law by the executive are legion.

Public interest litigation has been used to resist the executive’s violations of the Constitution.

There have been many petitions filed in the High Court to seek compliance with the supreme law, the Constitution.

Our Constitution is also aware that our executive and the entire political leadership of our country has since independence acted as agents of neocolonialism and imperialism.

Neither the sovereign power of Kenyans nor the values and principles of governance were supposed to be abstract.

The Constitution expects the executive to constantly breathe life into these provisions.

The executive, under these provisions, is expected to resist foreign interests in our name if they violate our sovereign power and values.


Our political leadership and the executive it oversees are so loyal to foreign interests that it has not, even once, sought the help of the Kenyan people to resist foreign interests that seek to exploit, dominate, colonize, occupy, and humiliate our Motherland.

This class, the compradors which we also call the homewards, and Walalahai/Mabwenyenye/mafutamingis in Kiswahili has never sought the people’s help in this patriotic endeavour.

This explains why Haiti, trade pacts, foreign investments, and borrowings are done behind the backs of Kenyans.

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.

It smirks at double standards, hypocrisy, perfidy, and racism to validate these values as universal and then deny them to Kenyans.

We resist this inhuman imperialism which is done in the names of the American, European, Japanese, and Chinese people without their consent either.

Countries that oppress others also oppress their people.

That is why the 21st century is about the global solidarity of the people of the planet to rid it of the great inhumanity we all face economically, ecologically, socially, politically, spiritually, and culturally.

Kenyans must demand that our policemen should not be sent to Haiti.

We should demand that our 2010 Constitution should not be disobeyed and subverted.

We refuse a foreign policy in our name that we have not consented to. We demand that Kenya should stop fighting proxy wars for imperialism.

We must also demand that the UN and the US must respect our sovereignty and our Constitution.

It is expected that these demands will not heeded so I suggest the human rights organizations doing public interest litigation should proceed to the High Court and get orders that the 1000 police women and men should not be deployed in Haiti. The constitutional arguments are clear.

And some questions for BABA: you have not been away when these matters and events have been taking place. Are these not issues that concern you? Are these not issues for mass action?

I note that you have said nothing about the trade pact being negotiated between Kenya and the US that we have not been allowed to participate in.

I believe it is abundantly clear what I have always argued in my column here, that our political leaders in the two political factions delight in being compradors.

History records Kenyans have had the will and the capacity to resist matters that are not in the national interest.

Kenyans will soon realize they are on their own because both the government and the opposition are birds of the same political feather.


Posted Oct. 25, 2023