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Kenya, Haiti leaders look to force police mission through despite court ruling

The UN-mandated deployment is aimed at reining in rampant gang violence, but many people in Kenya and Haiti fear it could make things worse.

Lawyers sit in court as Kenya High Court Judge Chacha Mwita delivers his ruling, terming the Kenya government's intention to deploy police officers to lead a U.N. approved mission to Haiti as unconstitutional, at the Milimani law courts in Nairobi, Kenya January 26, 2024. Monicah Mwangi/Reuters
Lawyers sit in a Nairobi court as High Court judge Chacha Mwita delivers his 26 January ruling, terming the Kenyan government's intention to deploy police officers to lead a UN-approved mission to Haiti unconstitutional.

With the support of the United States, the Haitian and Kenyan leaders are racing to find a way around a court order so Kenya can deploy 1,000 police officers to Haiti and lead a UN-mandated international assistance mission to rein in rampant gang violence.

Last week, High Court judge Chacha Mwita ruled that Kenya’s National Security Council, which oversees the security services, including the police, had no legal power to deploy such a contingent outside the country.

But the ruling left open the possibility that President William Ruto could still send the police if Haiti requests such a deployment, has a “reciprocal arrangement” with Kenya, and is deemed a “reciprocating country”.

Ruto told Reuters on the sidelines of an Italy-Africa summit in Rome on 30 January that Haiti had asked for help months ago, and that the two governments are working on a reciprocal arrangement that would satisfy the demands of Kenya’s law and allow the deployment to go ahead “as soon as next week”. 

According to a source in Port-au-Prince, Haiti's acting prime minister Ariel Henry sent Ruto a letter earlier this week to drive forward negotiations on the Multinational Security Support (MMS) mission, which was authorised by the UN Security Council in October.

The mission has split opinion in Haiti, where some prefer a Haitian-led solution as they’re wary of foreign interventions, and of the challenges – linguistic and otherwise – of Kenyan officers leading it. Others see no such local fix on the horizon and feel it is time to seek outside help. Others still fear it will only serve to prop up the Haitian elite and do nothing to solve the root causes of Haiti’s problems.

Haiti’s descent into chronic poverty, violence, and debt was paved by 122 years of forced reparation payments to French slave owners and their descendants – “the ransom of independence”, as former French president François Hollande described it. 

Battered regularly by extreme storms and catastrophic earthquakes that have worsened a hunger crisis, the small Caribbean nation of 11.5 million people now faces unprecedented gang violence that claimed nearly 5,000 lives in 2023 alone.

Since the assassination of president Jovenel Moïse in 2021, gangs have taken control of most of the capital Port-au-Prince and expanded their extortion, looting, kidnapping, and rape into the surrounding Artibonite department.

The gang violence, which has seen the number of people displaced soar to more than 310,000, also prevents humanitarian responders from accessing the growing numbers in need, especially in complex urban environments where there is a security vacuum.

Legal debate over ‘reciprocal agreement’

Some Kenyan lawyers say the push to circumvent the court order by getting a “reciprocal agreement” may not be that easy and is likely to encounter further legal challenges within Kenya.

“The requirement… is not just the president going and having a deal with the Prime Minister [of Haiti]”, Waikwa Wanyoike, a prominent constitutional lawyer, told The New Humanitarian. 

Under the National Police Service Act, the “reciprocal arrangement” is conditioned on the existence of a law regulating police in the reciprocating country that is “substantially similar” to Kenya’s, Wanyoike explained, adding that this requirement is not met “if, for example, the law on police service in Haiti deviates significantly from the Kenyan law… including, for example, the mandate of police in Haiti, the way they are commanded, [and] the way their accountability is assessed”.

“Haiti has not had a parliament since the year 2020. So where are you going to get this reciprocal law?”

In a post on X, formerly Twitter, Dr Ekuru Aukot, the main petitioner in the suit challenging the deployment and one of the Kenyan president’s key opponents, declared that Ruto was misleading the public. 

“Only a legitimately elected president who then forms a legitimate government pursuant to the Haiti constitution can make such a request. An imposed PM, Ariel Henry, can not make such a request,” wrote Dr Aukot, who helped draft the Kenyan constitution and leads the opposition Thirdway Alliance Kenya party. 

Evans Ogada, who represents another petitioner in the suit, the Law Society of Kenya, said Ruto, who has also appealed last week’s ruling, should definitely expect obstacles ahead. 

“Haiti has not had a parliament since the year 2020. So where are you going to get this reciprocal law?” he said. “Secondly, you have to have a treaty that has to go through the rigours of parliament, public participation here, and, of course, approval by cabinet.”

But other experts outside Kenya don't necessarily see it that way.

According to Ricardo Germain, a Haitian specialist in security and defence, the deal wouldn't necessarily need parliamentary approval in Haiti.

“We are talking about a ‘reciprocity agreement’. When it is a solemn agreement, it requires the parliament’s ratification, but this could be a simplified agreement that doesn’t require that kind of approval to be negotiated and applied,” he said, confirming that negotiations on a bilateral security arrangement are already under way. 

In the past, the Kenyan government has been criticised for not complying with court orders it did not agree with, and relations between the executive and the judiciary have hit a low point, with Ruto accusing judges of stalling his governance agenda and threatening to ignore their judgments.

More challenges to the mission

Kenya's legal challenges and political conflicts aren’t the only factors throwing the international police deployment into doubt or risking to delay it indefinitely, experts say.

A dozen other countries, including Jamaica, the Bahamas, Barbados, and Senegal, have agreed to send police or military officers, while the United States has pledged $200 million, including logistics and equipment.

Amid concerns that financial contributions could stall following the ruling, the US State Department has called for more international support for the mission. Even the Biden administration is struggling to convince Congress – particularly opposition Republicans – to agree to the release of funds for the mission, the Miami Herald reported

“Some countries are willing to contribute with police, but they are waiting to see whether there is enough money to make sure they will get paid and reimbursed,” William O’Neill, the UN’s independent expert on human rights in Haiti, told The New Humanitarian. “The setback in the court doesn't help encourage them to give money.”

Meanwhile, the crisis in Haiti keeps escalating, which could also change the game for the multinational force if it were to be deployed.

The deportation from the United States in November of imprisoned former drug-trafficker and coup-plotter Guy Philippe has raised fears he could end up leading an armed insurrection. Within weeks, he had gained prominence and popularity across the country, leading protests against Henry and calling for a “revolution for the people”. 

The situation became more volatile last week, when members of the Brigade for the Security of Protected Areas, known as B-SAP, went rogue, and clashed with the police. The armed group has pledged its allegiance to Philippe, and many fear this new association will aggravate Haiti’s security crisis.

O’Neill said the possibility of this “armed insurrection” is not only “very dangerous, volatile, and unpredictable”, but also makes the situation more difficult for any international assistance force.

“It's one thing to go after the gangs, who are bad and violent but have no support from the population,” he said. “And it's another thing if you have this armed state force that does have some support from the population, that is fairly organised and has a lot of former military in it.”

Fighting the BSAP, he added, would require the international assistance force to review the scenarios and concept of operations it has been preparing for several months.

“Who knows what Philippe's relationship with the gangs is, or with drug traffickers; he is a former one and knows all their network,” O’Neill said. “What is his relationship with politicians, government or the police? No one knows. It's a very complicated factor too.”

Patrick Gathara reported from Nairobi, Kenya. Daniela Mohor reported from Santiago, Chile. Edited by Andrew Gully.

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