this editorial about the civilian High Court's intervention in the Kenya Navy court-martial to which earlier posts such as this one have referred:
THIS month the High Court in Mombasa ordered the release of 27 soldiers facing court martial. Now the court has stayed the order after the Attorney General argued that their release was unconstitutional (see Page 13).
The soldiers reportedly resigned and went abroad for more lucrative employment. They were arrested on their return to Kenya some years later.
The Attorney General is almost certainly right that their release was unconstitutional.
How can the High Court release suspects who have been charged in another court to which it is not superior?
Moreover this is not like 27 workers resigning from their factory jobs without giving one month's notice.
Soldiers live in a different world. They sign six or nine year contracts and are not allowed to resign. Imagine the chaos if they decided to resign, or go on strike, the day before a battle.
Article 41 of the constitution says that all Kenyans have the right to campaign for better work conditions, but Article 24 specifically states that these fundamental rights may be limited for the Kenya Defence Force and National Police Service.
Clearly these 27 soldiers are under the jurisdiction of the Court Martial where they may be found guilty or innocent.The interaction of civilian and military courts is a familiar theme in democratic countries. When pretrial intervention is appropriate has been hotly contested time and again. The High Court's judgment and any appellate ruling thereafter will be worth close study. (Thanks to Phil Cave for the editorial.)