Kenyans across the country have speculated that the ongoing saga around public disaffection with the Finance Bill 2024 will give rise to a state of emergency.
This followed the Tuesday, June 25, 2024, events where demonstrators stormed the Parliament buildings in Nairobi and set part of the building on fire.
Consequently, Defence Cabinet Secretary Aden Duale, issued a Gazette Notice deploying the Kenya Defence Forces (KDF) to support the National Police Service in response to the security emergency caused by the ongoing violent protests in various parts of the Republic of Kenya.
People with long memories, or politically engaged parents or grandparents, will know that the very phrase “state of emergency” could well strike fear into Kenyan hearts.
The fundamental idea of the emergency is to allow the government to take steps in dealing with a situation or steps that would go beyond what the law normally allows.
When a Country can Declare a State of Emergency
The President of Kenya has the authority to declare a state of emergency under specific circumstances as stipulated in Article 58 of the Constitution of Kenya, 2010.
However, according to the Constitution, a state of emergency may be declared only under Article 132 (4) (d) when the State is threatened by war, invasion, general insurrection, disorder, natural disaster or another public emergency.
It can also be imposed only if the declaration is necessary to meet the circumstances for which the emergency is declared.
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A declaration of a state of emergency, and any legislation enacted, or other action taken in consequence of the declaration, shall be effective only prospectively (considering future events or activities).
Duration of the Declaration
Furthermore, the State of Emergency cannot be longer than fourteen days from the date of the declaration.
However, the National Assembly may extend a declaration of a state of emergency- following a resolution adopted in a debate in the National Assembly by at least two-thirds of its members for not longer than two months at a time.
Any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.
Supreme Courts Powers and Laws
Additionally, the Constitution grants the Supreme Court the power to decide on the validity of a declaration of a state of emergency, any extension of such a declaration, and any law enacted, or other action taken, in consequence of a declaration of a state of emergency.
It can also be enacted if the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency.
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The laws shall also not take effect until they are published in the Gazette.
A declaration of a state of emergency, or legislation enacted, or other action taken in consequence of any declaration, may not permit or authorize the protection of the State, or of any person, from responsibility for any unlawful act or omission.
Kenya’s Past Declaration
Kenya has experienced states of emergency in the past, such as during the Mau Mau uprising in 1952 under British colonial rule and during post-independence periods marked by political unrest.
The government of newly independent Kenya declared a state of emergency in the Northeastern region in response to the “Shifta Rebellion.”
Both instances led to grave abuses of power, including the Hola Camp Massacre of 1959 and the Wagalla Massacre of 1984.
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