Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

• Citation: (2020) African Yearbook on International Humanitarian Law 121
• Author: Mutuma, K.W.
• Pages: 121-158
• Published date: 20 September 2021
• DOI: https://doi.org/10.47348/AYIH/2020/a5
• Date: 20 September 2021

121

Customary international

humanitarian law: An overview of

Kenya’s state practice in the post-

2010 Constitution era

Kenneth Wyne Mutuma*

Abstract

With the exception of the shif ta wars in the northern par t of the country,

Kenya has, for the greater part of its p ost-colonial histor y, enjoyed relative

conditions of peace. This, in t urn, has affected the volume of and qualit y

of knowledge on Kenya’s state practice on international human itarian

law (IHL). The Customary IH L study of the International Committee of

the Red Cross (ICRC) in 20 05 reviewed state practice in the countr y at

the time, based on materia ls such as military manua ls, national laws and

case law. However, since 2005, two signic ant events have had a direct

bearing on the cou ntry’s IHL state practice. The rst is t he ushering in of

a new constitutional order th rough the Constitution of Kenya, 2010, and

the second is the Kenyan mil itary troops’ incursion into Somal ia against

the Somali terror ist group, Al-Shabaab. This paper looks at the sig nicant

ways in which these two events have led to key addit ions to Kenya’s state

practice, under four mai n headings: military manua ls, national laws, court

cases and other source s.

Keywor ds: Constitution of Kenya, 2010, customary international

humanitarian law (IH L), Kenya, Somali incursion, state practice

1 INTRODUCTION

This paper aims to assess Kenya’s practice for the overall pur pose

of determining the scope and content of customary international

humanitarian law (IH L). Identifying c ustomary practice under

international law has always posed challenges because it entails

the arduous task of determining what constitutes a general practice

* Dr Kenneth Wyne Mutu ma is a Senior Lectur er at the School of Law, University

of Nairobi, and an IH L practitioner. This article is bas ed on Dr Mutuma’s work

commissioned by the ICRC for the upd ating of the ICRC’s Customary IHL

Practice Colle ction for Kenya for the period between 20 06 and 2018.

https://doi.org/10.47348/AYIH/2020/a5

(2020) African Yearbook on International Humanitarian Law 121

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122 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a5

among states.1 There is also the additional difculty of ascertaining

what actions of a state conclusively fall within the two elements that

make up customary international law – lato sensu (or state practice)

and opinio juris.2 These challenges are pa rticularly compounded in

the context of IHL where one seeks to determine a uniform practice

in situations where participation in armed conict may be limited to

a few states.3 Furthermore, during war it is not unusual for states to

engage in propaganda, the effect of which serves to obscure whether

a state’s ofcial statements are indicative of general practice or opinio

juris.4 However, as illustrated by the ICRC’s Customary IHL study, it

is possible, even in these unique circumstances, to gain insight into

a state’s practice for the purposes of ascertaining customary IHL.5

Based on this premise, this paper analyses information indicative

of the general practice of Kenya pertaining to customary IHL

based on national laws, national court decisions and, to some extent,

military manuals.

For most of its post-colonial existence, Kenya has not been a

party to armed conict, either at an international level or a domestic

level, with the exception of the shifta wars in the early part of its

post-independence years.6 For the most part, Kenya has witnessed

only intermittent conicts between ethnic groups for such reasons

as competition for resources or land,7 and scufes emanati ng from

the state’s use of force against groups of protesting citizens.8 None

of these has met the threshold of armed conict and most incidents

appear to qualify as internal disturbances or internal tensions.9

1 Sean Murphy ‘The Identi cation of Customary International L aw and Other

Topics’ Sixty-Seventh Ses sion of the International Law Commission (2015).

2 Ibid.

3 HG Cohen ‘Finding Internationa l Law: Part II: Our Fragme nting Legal

Community’ (2015) 44 International Law and Politics 1049 at 1066.

4 S Sahl ‘Researchi ng Customary International L aw, State Practice and the

Pronouncements of States regar ding International Law’ Hause r Global

Law School Progra m (July 2007) available at htt p://www.nyulawglobal.org

(accessed on 28 March 2021).

5 Ibid.

6 H Whittaker ‘The So cioeconomic Dynamics of t he Shifta Conict in Kenya,

c. 1963-8’ (2012) 53:3 The Journal of Af rican History 391 at 391. Also see

Muturi Njeri ‘Kenya t hat was never Kenyan: The Shifta wa r and the North

Eastern Kenya’ Medium (13 April 2015) available at htt p://www.medium.com

(accessed on 28 March 2021).

7 B Rohwerder ‘Conict Analysi s of Kenya’ GSDRC, University of Birming ham

(2015).

8 M Mavenjini ‘Protest in Kenya – Repressive and Br utal Policing has become

Normalized ’ Transconict (21 December 2017) available at http://ww w.

transcon ict.com (accessed on 28 March 2021).

9 With the exception of Mt Elgon.

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CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 123

https://doi.org/10.47348/AYIH/2020/a5

However, more recently Kenya has been drawn into a conict with

the Somali terrorist group, Al-Shabaab, which in 2011 led to the

incursion of the Kenya Defence Forces (KDF) into Somalia under a

military operation code-na med Operation Linda Nchi.10 Although this

military operation presents an opportunity for gauging state practice,

there is little evidence available about the conduct of KDF operations,

with government ofcials preferring to remain silent on critical issues

where clarication has been sought.11 Fur thermore, even though there

have been allegations of IHL violations by troops, none of these has

elicited responses from the executive or been taken to court, which

would have resulted in jurisprudence that informs our u nderstanding

of Kenya’s state practice.

Given the limitations imposed by Kenya’s limited involvement in

armed conict and the absence of in formation where it is so involved,

an analysis of Kenya’s state practice may best be guided by information

on the ICRC’s Customary IHL database. The ICRC points to four

primary sources of materia l for determining state practice: military

manuals, national legislation, national case law and other national

practice (such as press briengs by government ofcials, countr ies’ UN

reports etc).12 In 2005, the ICRC conducted a study to ascertain state

practice on IHL in various countries on the basis of relevant materials

available at that date. This paper seeks to look at developments in

Kenya since then that pertain to Kenya’s ofcial position on matters

regulated by IHL.

2 SOURCES OF STATE PRACTICE IN KENYA

As mentioned above, this paper considers post-2005 developments

in the context of the four primary source materials that can be used

to understand the state practice of Kenya: military t raining manuals,

national laws, court decisions and other national practices.13 The

unique context of the country has an impact on the access to the

quantity and quality of information related to each of these sources.

Two particular observations can be made:  rst, the effect of the current

security envi ronment; and second, the ushering in of a new legal

dispensation following the promulgation of the 2010 Constitution.

10 OM Oluoch and PT Mig ue ‘Operation Linda Nchi: Kenya’s Milita ry Experience

in Somalia’ Kenya Literat ure Bureau (2014).

11 British Broadcast ing Corporation (BBC) News ‘S omalia’s Al-Shabaab killed

“180 Kenyan troops” in el-Ade’ (25 Februa ry 2016) available at http://www.

bbc.com/news/world-afric a/ (accessed on 30 March 2 021).

12 ICRC ‘IHL Database: Cus tomary IHL’ (n.d.) available at https://ihl-databases.

icrc.org/customary-i hl/eng/docs/src (accessed on 1 March 2021).

13 Ibid.

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