Attorney General Justin Muturi has moved to the Court of Appeal seeking to overturn the High Court decision that blocked the deployment of Kenyan police officers to help in the fight against criminal gangs in Haiti.
Muturi's move comes days after President William Ruto and Haitian Prime Minister Ariel Henry signed an agreement on Friday to fast-track the deployment exercise.
In a memorandum of appeal, the AG wants the Appellate court to quash the decision by High Court Judge Chacha Mwita that declared the National Security Council led by President William Ruto and Interior Cabinet Secretary Kithure Kindiki move to deploy police officers to Haiti as unconstitutional.
Muturi now wants the Court of Appeal to set aside the decision by Mwita that the National Security Council has no constitutional mandate or legal mandate to deploy national police service outside Kenya under Article 240 (8) or any other law.
The State legal advisor also seeks to lift the order by Judge Mwita that prohibited the deployment of police officers to Haiti or any other country, other than in compliance with sections 107 and 108 of the National Police Service (NPS) Act.
While seeking to overturn the High Court decision, the Attorney General through state counsel Emmanuel Bitta says that Justice Mwiita misdirected himself in law by giving a pedantic interpretation to provisions of Articles 239 and 240 of the constitution of Kenya thereby arriving at a wrong decision.
"The Honourable Judge misdirected himself in law by failing to interpret the provision of Articles 239 and 240 in a manner that promotes their purpose, values and principles thereby arriving at a wrong decision," Bitta states.
Further, the Attorney General says that the High Court Judge erred in law by failing to take into account the structures and functions of the national security organs, the country's history in regional and international peace and other support operations and of Kenya's need to operate in a community of nations thereby arriving at a wrong decision.
"The appellant (the Attorney General) prays that this court do order that the appeal be allowed in such part of the decision of the High court dated January 26, 2024," Bitta seeks.
The move by the AG to move to the Appellate court comes after Justice Mwita ruled that the decision to deploy the officers to Haiti did not meet the constitutional and statutory standards.
He said the National Security Council had no legal mandate to deploy police officers under the law, adding that it can only do so with the defence forces.
"It is my finding that the National Security Council does not have powers at all to deploy police outside Kenya. I therefore find the deployment of 1,000 police officers to Haiti in a U.N approved mission unconstitutional null and void, "Justice Mwita ruled.
In his ruling, the judge said that the manner used by President Ruto, Interior Cabinet Secretary Kindiki, National Assembly and Attorney General Justin Muturi and Inspector General of Police Japheth Koome in deployment was against the country's law and the constitution.
While declaring the deployment illegal, Justice Mwita further concurred with the petitioners - Third Way Alliance leader Ekuru Aukot and its chairperson Miruru Waweru - that the government did not conduct proper public participation.
He added that any other action taken by any other state organ in furtherance of the deployment decision would also be invalid, null and void.
Aukot and Waweru had argued that the deployment of police officers is not envisaged in the Constitution.
Through Advocate Charles Midenga, the applicants argue that the law provides for the deployment of only military personnel, and even in such a case the public must be consulted.
Last year Haiti's government pleaded for international help to confront violence that has cost thousands of lives, as armed gangs take over entire swathes of the country, leaving the economy and public health system in tatters.
Kenya had previously said that it was ready to provide up to 1,000 personnel, an offer welcomed by the United States and other nations that had ruled out putting their own forces on the ground.
