Batuk Transgressions Force Kenya to Revisit UK Defence Cooperation Agreement

Parliament has demanded the urgent legal clarification of the Defence Cooperation Agreement between Kenya and the United Kingdom, warning against a foreign force conducting operations in the country sans proper legal backing.

The National Assembly has adopted a report by the Defence, Intelligence and Foreign Relations Committee on the inquiry into the conduct of the British Army Training Unit in Kenya, popularly known as Batuk. The committee recommended the immediate ratification of the DCA between Kenya and the UK.

The committee, chaired by Belgut MP Nelson Koech, noted that the DCA’s current legal status remains in limbo. The agreement guides Batuk’s operations and training in Kenya. The 2015 DCA expired in 2021, and the 2021 DCA has yet to be ratified, raising concerns about the framework under which Batuk operates.

The first DCA, signed in 2015, aimed to strengthen defence ties and address shared security challenges. It entered into force on October 11, 2016, and was set to last five years. On July 27, 2021, Kenya and the UK signed a new DCA to replace the expired 2015 agreement.

The committee stated that the 2021 agreement was forwarded to the National Assembly on September 6, 2021, for ratification by the authorities. However, the agreement was not concluded before the end of the 12th Parliament. It was resubmitted on November 22, 2022, and after review, the Departmental Committee on Defence, Intelligence and Foreign Relations recommended approval with two reservations.

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It was recommended that the committee amend Article 6(5) by adding murder as one of the offenses falling within the local jurisdiction, stating that the current DCA excludes murder from local jurisdiction.. They also recommended that Article 23 be updated to include Corporate Social Responsibility obligations.

“This report was tabled in the House on March 21, 2023, and was thereafter debated and adopted by the House on April 13, 2023, thereby approving the ratification of the DCA with the aforementioned reservations,” said Abdullahi Bashir Sheikh, vice chairperson of the committee.

He added that Kenya has not yet ratified the agreement due to unresolved issues with the UK following parliamentary approval with the suggested reservations.

An analysis of the 2015 DCA revealed that Article 26(5) provided provisions on jurisdiction, civil claims, liabilities, information protection, and financial arrangements. However, ambiguity remains over whether these provisions extend to the expired sections of the agreement.

“Therefore, it is crucial that the legal status of the Defence Cooperation Agreement (DCA) between the United Kingdom and Kenya is swiftly resolved,” Bashir said.

“I know that we have a DCA that is in limbo. Its legal status needs to be looked into so that we know where both countries stand at this point in time. It is important that the Executive also resolves the matter of the DCA so that we do not have a situation where a foreign force is here in the country without any legal backing.”

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Bashir also highlighted challenges the committee faced during the inquiry, noting Batuk’s lack of cooperation.

“Despite multiple correspondences, Batuk exhibited a pattern of unresponsiveness and evasion, frustrating the committee’s constitutional mandate to establish the facts surrounding serious allegations made by citizens,” he said.

He added, “The Batuk consistently invoked immunity, citing provisions of the DCA, and evaded direct engagement with the committee. Instead, they channelled their communication through the Ministry of Foreign and Diaspora Affairs and the Ministry of Defence, thereby undermining the inquiry.”

Even after repeated summons issued under Article 125 of the Constitution, Batuk officials declined to appear before the committee, routing all communications through the ministries instead.

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