British Army Training Unit Kenya lurching from crisis to crisis

Coincidentally, the scandals started emerging just months after the British army opened its new Nyati Barracks in February this year in a grand event presided over by UK Secretary of State for Defence Ben Wallace and then Kenyan Defence Cabinet Secretary Monica Juma.

The barracks, sitting adjacent to the Kenya Defence Forces’ (KDF) Laikipia Airbase, not only serves as a training base for the British Army, but also as a military depot for its troops in the country.

For two weeks, detectives in Nanyuki have been turning garages and spare parts shops in Nanyuki town upside down in search of two military vehicles and spare parts belonging to the British Army.

The military Land Rover Defenders were discovered missing during an audit, and the Nation has learnt that the vehicles and other vehicle parts might have been stolen sometime in June.

The British High Commission has remained mum on the case details, but confirmed that local authorities are investigating the theft.

Two Land Rovers

“Kenyan Police are investigating the theft of two Land Rovers, and associated equipment, including tyres, from the Batuk base at Nanyuki. As the investigation is ongoing, I am unable to add any further details at this time, except to say that the stolen equipment does not pose any safety or security threat to the public,” a representative of Batuk told the Nation.

Read: How British soldiers flout the rules of engagement in Kenya

Last week, detectives in Nanyuki arrested two people in connection to the theft of some military gear from the base.

Laikipia County Criminal Investigations Officer (CCIO) Onesmus Towett, confirmed the arrests, but maintained that investigations were ongoing.

The items, which had been reported lost from the barracks included shoes, water tanks and bags, among others, and they were retained at the Nanyuki police station.

The presence of the foreign soldiers in the bustling Nanyuki town has also attracted hawking of military gear, some believed to be sourced from the UK troops. Daggers, boots and combat attire belonging to the British Army are usually sold on Nanyuki streets, raising questions over security of foreign military equipment.

The theft of the military equipment comes against the backdrop of a series of legal proceedings against the British troops stationed in Kenya.

For the past nine months, Batuk has been embroiled in a legal dispute with the Lolldaiga community in Laikipia.

In the matter, 1,496 community members, alongside an environmental lobby group -- the African Centre for Corrective and Preventive Action -- have sued Batuk after soldiers started a fire during training at the Lolldaiga Conservancy on March 25.

The fire destroyed more than 10,000 acres of land, causing damage to vegetation, animals and communities living near the ranch.

As a result, wildlife at the 49,000-acre conservancy escaped into peoples’ farms, destroying crops.

The smoke from the fire contained dangerous chemicals that have caused adverse health effects such as serious eye-sight problems and miscarriages in both women and livestock, the petitioners say.

In the petition before the Environment and Land Court in Nanyuki, the parties seek compensation under the Polluter Pays principle.

Read: Lakipia residents want British army trainings stopped after fire

Also sued in the matter are the Lolldaiga Hills Ltd and Batuk’s army commanding officer stationed at Laikipia.

Interested parties in the case are the Kenya Forest Service (KFS) and the Kenya Wildlife Service (KWS).

But ever since the suit began in June, Batuk has asked to be stricken out of the petition, claiming state immunity.

Through lawyer Lawrence Ondieki, the military has told the Environment and Land Court in Nanyuki that the UK is a foreign sovereign state that cannot submit to the jurisdiction of a Kenyan court.

The British Army says it cannot be sued because the fire started as a result of a training sanctioned by the Defence Cooperation Agreement (DCA) signed by the governments of Kenya and the UK.

According to Mr Ondieki, the DCA also grants the British Army state immunity and disputes of a civil nature should be heard before the Inter-Governmental Liaison committee as per the agreement.

The agreement signed by the two countries has become the point of dispute between the two parties in court.

Justice Antonina Kossy Bor is set to deliver a ruling on December 14 on whether or not the UK should be struck out of the petition based on the agreement.

In his submissions to the court, lawyer Kelvin Kubai, who is representing the Lolldaiga Community, told the court that the UK was initially entitled to state immunity but waived it in writing through the DCA.

Kenyan laws

He said that as a result, the UK has since consented to be bound by Kenyan laws.

“Article six of the DCA stipulates that the visiting forces, which in this case is the UK army, abide by the laws and regulations of its host nation,” he says.

Further, Mr Kubai argued that the UK and Northern Ireland are already signatories of the United Nations Convention on Jurisdictional Immunities of States and Their Property, meaning that the UK as a country cannot invoke immunity from jurisdiction in proceedings before a court in another state where it has expressly consented to jurisdiction through an international agreement, a written contract, or a declaration before a court.

The Lolldaiga Community further says that as per the DCA, the military is not entitled to absolute state immunity for all the offences it commits.

It argues that the agreement allows authorities of the UK who are empowered by the law to exercise command over the army to have jurisdiction over property belonging to the UK.

“The subject of this petition, however, is damage to environment, land, wildlife and property belonging to the host nation, which is not limited to the UK authorities,” the community, through its lawyer, has told the court.

According to Mr Kubai, the Inter-Governmental Liaison Committee that Batuk says ought to handle the dispute is biased, since it only consists of the UK’s senior military officers.

Batuk denied claims that the committee is biased, saying it comprises senior officers from both Kenya and the UK.

The community further accuses the British soldiers of being under the influence of cocaine and heroin at the time they started the fire.

Mr Kubai says the UK’s Times newspaper, in its publication earlier in the year, reported that six soldiers tested positive for the drugs at the end of March, when the fires happened.

In its defence, the British Army has said there is no evidence to prove that its soldiers were under the influence of drugs at the time of the fire as alleged.

Mr Ondieki agreed that the state immunity granted in the DCA is not absolute because Kenyan courts have jurisdiction over criminal offences committed by the British military.

“Although for the civil disputes, there is a well laid down procedure of how to go about such cases in the DCA,” Batuk says, adding that the community should make its complaints to the Inter-Governmental Liaison committee, which after assessing, will pay compensation according to the framework provided in the DCA.

 Additional reporting by James Murimi