Introduction

The first duty of a State is the protection of society from violence and invasion by other independent societies. That duty can be performed only by means of military force. Accordingly, the military is that professional group organised by the State for the control of violence. Military forces prepare for the ever changing threat of war and adopt measures in preparation. These measures are influenced by inherited traditions about war and political determinations by the government of the State. The soldier is trained to fight and win at any cost, if at all possible. He will therefore cry out against inhibition of effort or any withholding of resources that may diminish this possibility. The civil power, on the other hand, has the right and duty to make the choice for or against war and requires the full compliance of the military to its directives. How is this relationship between the civil and the military maintained without friction?

Although violence in general has always existed and will no doubt continue to exist, is the institutional form of war going to remain and thus justify the maintenance of military forces? Will the present legal structures continue to ensure the proper control and efficient use of military forces by civilian governments? How are the changing attitudes to war, which are influenced by economic, social and cultural factors in the modern uni-centric world, affecting the civil-military relationship in third world countries and particularly Kenya?

Constitutional/statutory basis

The Kenyan Armed Forces are a creation of Statute. Chapter 199 of the Laws of Kenya establishes the Kenyan Army, Kenyan Air Force and Kenyan Navy. This law states that the three forces are employed in the defence of the Republic and support of the civil power in the maintenance of order and other approved duties. Clearly, Kenya's military forces involved in international armed conflict in the defence of the Republic operate under the Law of Armed Conflict and in that situation questions of military strategy or policy belong to military leaders. Most questions about civil-military relations arise in situations which fall short of international armed conflict and involve the employment of the armed forces to support the civil power in the maintenance of order.

Generally, standard military employment in support of the civil power includes assisting civil police forces in dealing with riots and other civil disturbances, and armed terrorists; guarding key points; helping to maintain essential supplies and services; and bringing relief during natural disasters. The military in this role operates under the domestic law of Kenya, together with accepted international law provisions relating to the protection of basic human rights. The military is expected to observe existing law on use of force, powers of arrest and search as well as liability for wrongful acts. No employment of the Kenyan armed forces, either in international or non-international armed conflict, may be executed without due regulation of the law.

In Section 4 the Constitution of Kenya designates the President as the Commander-in-Chief of the armed forces but does not delineate his authority. At a minimum, and this is at the constitutional level, the designation means that he is superior in command functions to any military officer. The Commander-in-Chief's powers are, it seems, generally what he says they are except where Parliament restricts them with its own constitutional powers. The most obvious example of this restriction is the control of the budget. Historically, it has been accepted that the President's ability to make instant decisions in matters of military defence has underscored the need for powers of command. Any hindrance of the President in times of crisis can result in serious harm to the country's national defence. In practice Parliament treats with deference the President's powers of command in an emergency requiring instant decisions. However, Parliament retains the constitutional right to share authority with the President to declare emergencies within the provisions of Section 85(2) and (4) of the Constitution which seem intended to share responsibility for extended military action.

Subordination to civil power

It was the clear intention of Parliament when establishing the Kenyan Armed Forces to make them subordinate to the civil power. The President, with the constitutional designation of Commander-in-Chief, is empowered in Section 3(3) of the Armed Forces Act to retain responsibility for organisation and command of the armed forces. He is entitled to assign and vary names to units of the armed forces and in Section 5(6) appoint the Chief of General Staff and Commanders of each service. The overall control and direction of the armed forces are entrusted to the Defence Council, the highest policy organ of the armed forces, whose Chairman and Vice-chairman are, respectively, Minister and Assistant Minister, appointed by the President. A third member of the seven-member Defence Council is a Permanent Secretary – a civilian – thus underscoring the authority and influence of the civil power over the armed forces. All attachments, employment of the armed forces or co-operation with other forces locally and abroad are controlled by the President and Defence Council. Significantly, the power to make regulations on such matters as recruitment, discipline, pay, pensions and general aspects of the "good government" of the armed forces is vested in the Defence Council in Section 227 of the Armed Forces Act.

In addition, Parliament has retained supervisory power over the armed forces in funding. All military expenditure requires parliamentary authority through the annual financial approvals. Scrutiny of this expenditure is ensured through the annual report of the Controller and Auditor-General. The Department of Defence, which is administered by the civil service, oversees the management of the Armed Forces, thus completing the formal constitutional, legislative and administrative relationship between the military and government in Kenya. The lines, limits and controls over the Kenyan Armed Forces by the civil power are clear and represent the constitutional intention to control military intervention through the democratic processes of the country.

Political/military appraisals

The military sub-culture values fortitude, stubbornness and tenacity in the face of any military adversary, known as "the enemy." It is therefore common to find military personnel unable to separate institutional or national prestige from personal prestige. The military leader with this frame of mind may see a particular crisis as purely military and not political. For example, this mistake was made by US General Westmoreland during the Vietnam War when he believed that the only way to win was to kill a sufficient number of enemy soldiers. He overlooked the political consideration of winning the hearts of the Vietnamese people which should have permitted a political resolution of the conflict. Clearly, both the military and civil power should be able to recognise and respect the boundaries of their respective responsibilities. They should acknowledge that neither approach to conflict appraisal is wholly wrong or wholly right. Each must be considered in any responsible decision.

Military decisions are made by senior military persons because they possess indispensable skills in commanding and leading into battle huge contingents of soldiers. These soldiers are obliged to obey orders, fighting for a cause they usually little understand, participating in a campaign of which they have no notion, and following tactics whose use they may not see. Sometimes described as "the divine folly of honour," such obedience leads a soldier to sacrifice his life willingly. To lead soldiers, the military commander must show boldness and professional competence. In return, the civil power making political decisions affecting the military should avoid indecision and stalemate or, worse still, failure to accept consequences such as high casualty rates. In those rare cases where a commander is out of sympathy with the orders he is required to execute, the civil power would be entitled to remove him. Otherwise the civil power risks the collapse of the principle of subordination of the military to the civil power. A well known example of such a scenario concerned US General Macarthur who was in command of US forces in Asia during the Korean War. The officer, a celebrated WW II hero, routinely disobeyed instructions on policy issues and even publicly attacked the US President's policies on the containment of Communism in Asia. He was eventually relieved of command after wrongly assessing Chinese intervention in the Korean War, an eventuality attributed to his recklessness and disregard for proper civil-military harmony.

National security

The desirable military-civil relationship is based as much on responsible political and administrative decisions on which the professional military can base its military action as on a proper analysis of the threat to the country's national security. Analysis of military threat is rooted in military realism. A country normally has a fairly well defined set of interests and it is assumed that it will act rationally in pursuing these interests by calculating and choosing policies which best serve those interests. When the country encounters resistance to its plans from other actors such resistance is defined as a threat to its national security and an obstacle to overcome. Historically, the country relies on its military power to overcome the obstacle. Both the military and civil power, therefore, need to work together closely in determining the country's military threat and the proper response to it based on political decisions that are likely to serve the country best.

Changing attitudes

Throughout history, man has fought wars to settle conflicts. Changes have of course occurred in man's attitude towards war, particularly in the last century. From the days when war was accepted as an inevitable part of the human condition – regrettable but offering opportunities for valour and human greatness – now war is being rejected as a means of resolving international or other disputes.

Indeed, justification for war is being restricted to self-defence which includes, for the world superpower, defence of client states and correction of what it calls the most blatant injustice. This changing attitude has received impetus from technological innovations which have changed calculations for national security. The deregulation of markets and privatisation of industry have revolutionised economic and social relations. In a globalising economy, state borders are increasingly less important. More and more economic actors are no longer bound by claims to national sovereignty and it is more difficult to use the military to pursue national ends that may be pursued economically. Global interdependence has made states more inclined to rely on diplomacy rather than military force to resolve disputes. As well, since the end of the Cold War, people are less willing to accept and follow uncritically the direction of institutional authorities. The public is demanding stricter oversight and control over military resources and is seeking a more active and equal role in deciding what professional services, including military services, are necessary and how they should be delivered. Military professionals must now move away from justifying their participation in a traditional military and instead identify with non-military forms of civic obligation.

Kenya's position

What effect are these changes having on the Kenyan military and its relations with the civil power? Already, it has become clear that we are in a democratic community that is growing nationally and regionally. Collective and permanent defence alliances to keep or restore peace are replacing participation in conflict. Now conflict management in the form of peacekeeping activities is the preferred approach.

In light of such constraints on military force as dense populations, faltering economies, a war weary public, divided societies, transnationalised borders and weakened public institutions, the military has to change. Society now appreciates the limits of military effectiveness and no longer accepts without question the military as the only institution that can establish societal stability. Such emerging effective social movements as human rights, the peace movement, the women's movement, and the environmental movement narrow the historical military freedom of action. A certain hesitation by the military to take decisive action is likely in these circumstances, thus diluting military competence to deal with internal turbulence. Some hesitation would be caused by a wariness of becoming closely identified with the failure to deal with a potentially intractable problem affecting national security.

Among the rank and file these changes in attitudes have the potential to make personnel more and more preoccupied with their own welfare. In their anxiety over their future in a reduced military, military personnel will seek to gain analytical competence and marketable skills, both within the military and in the outside market.

With the disappearance of such traditional threats as foreign invasion, military spending is bound to be reduced in favour of increased expenditure on services such as health and education. The military will increasingly see a merger with the police in dealing with security at borders and elsewhere. In Kenya efforts to address the structural obstacles standing in the way of development will receive a boost.

Conclusion

The military remains an important institution in Kenya. Its capacity to be above secular issues that divide society enhances its ability to remain professionally competent and constitutionally obedient to the civil authority, as was intended by Parliament. In general, society has now become too complex to be managed through the exercise of coercive force. The military will still likely be equipped, trained and motivated to intervene, especially to maintain internal security, given the strains in society caused by social-political forces and the hardships of development. However, with the drive towards such alternative means of resolving differences in society as globalisation, tolerance and democratisation, military forces in Kenya may see their freedom of action restricted and their effectiveness challenged by considerations of legitimacy and even constitutionalism. Fortunately they will remain the professional symbol of stability and national security. The armed forces, constitutionally under the command of the civil power, will remain secure and necessary. Dispensing with military forces by, for example, promoting complete disarmament is not realistic or desirable because "[b]andit gangs or nations cannot be permitted to operate in the confidence that declining order cannot find ways of defending and protecting itself.... The struggle against extinction cannot be given up. No evidence exists of any state being prepared to take the risk" (1).

References

1. Gavin Kennedy, The military in the Third World, 1974.