Parliament wants the legal status of the Defence Cooperation Agreement (DCA) between the United Kingdom (UK) and Kenya swiftly resolved to correct a situation where a foreign force is in the country without any legal backing.
The National Assembly on Thursday approved a report of the Defence, Intelligence and Foreign Relations committee on the Inquiry into the Conduct of British Army Training Unit (Batuk) that recommended immediate ratification of the DCA between Kenya and the UK.
The committee, chaired by Belgut MP Nelson Koech, said that currently, the status of that agreement is in limbo and the DCA is what has guided the presence of the Batuk in Kenya.
The committee said the 2015 DCA expired in 2021 and the 2021 DCA is yet to be ratified by Kenya, raising a legal issue regarding the framework under which Batuk is training and operating in Kenya.
In 2015, the UK and Kenya signed a DCA to strengthen defence ties and address common security challenges.
The agreement entered into force on October 11, 2016, pursuant to Article 26(2) of the agreement. The agreement remained in effect for a period of five years.
On July 27, 2021, Kenya and the UK signed another DCA, which replaced the previous DCA signed in 2015, and expired on October 6, 2021.
The committee said pursuant to the Treaty Making and Ratification Act, the agreement was submitted to the National Assembly on September 6, 2021, for ratification.
However, the agreement was not concluded by the end of the term of the 12th Parliament. The agreement was resubmitted on November 22, 202,2 and after consideration, the Departmental Committee on Defence, Intelligence and Foreign Relations recommended approval of the agreement with two main reservations.
The committee recommended that Article 6(5) of the DCA agreement should be amended by inserting a new paragraph to include murder as one of the offences that are under the jurisdiction of the host nation. The DCA exempts murder from being dealt with in this Country.
The committee also recommended that Article 23 of the agreement should be amended to include Corporate Social Responsibility.
“This report was tabled in the House on March 21, 2023, and was thereafter debated and adopted by the House on April 13, 2023, thereby approving the ratification of the DCA with the aforementioned reservations,” Abdullahi Sheikh, the vice chairperson of the committee said.
“The DCA, however, is yet to be ratified by Kenya due to unresolved issues that arose between the UK and Kenya after the National Assembly approved ratification with aforementioned reservations.”
He said an analysis of the 2015 DCA revealed that Article 26(5) provided for a savings provision on jurisdiction, civil claims and liabilities, the protection of information and the financial arrangement between the parties for as long as necessary
However, the agreement is ambiguous as to whether these provisions provide a lifeline for the entire expired provisions.
“Therefore, it is crucial that the legal status of the Defence Cooperation Agreement (DCA) between the United Kingdom and Kenya is swiftly resolved,” Mr Bashir said.
“I know that we have a DCA that is in limbo. Its legal status needs to be looked into so that we know where both countries stand at this point in time. It is important that the Executive also resolves the matter of the DCA so that we do not have a situation where a foreign force is here in the country without any legal backing.”
Mr Bashir said throughout the inquiry, the committee faced considerable obstacles in securing cooperation from Batuk.
He said, despite multiple correspondences, Batuk reported a pattern of unresponsiveness and evasion, frustrating the committee's constitutional mandate to establish the facts surrounding serious allegations made by citizens.
“The Batuk consistently invoked immunity, citing provisions of the DCA, and evaded direct engagement with the committee. Instead, they channelled their communication to the committee through the Ministry of Foreign and Diaspora Affairs and the Ministry of Defence, thereby undermining the inquiry,” he said.
“Despite repeated summons issued under Article 125 of the Constitution, Batuk officials declined to appear before the committee, and instead routed all communication through the Ministry of Defence and the Ministry of Foreign and Diaspora Affairs.”
