French soldiers who commit crimes in Kenya would neither face the death penalty nor be sentenced locally under a proposed defence deal between Kenya and France that is awaiting approval by the National Assembly.
The Defence Co-operation Agreement (DCA), tabled in Parliament by Defence Cabinet Secretary Roselinda Soipan Tuya, seeks to grant visiting French forces diplomatic-style privileges under a new cooperation framework. The National Assembly has invited public’s input before the agreement can be ratified.
However, the immunity being sought-including protection from capital punishment for serious crimes and exemption from local sentencing by the visiting soldiers-is likely to raise fears of abuse and impunity.
The proposal recalls past cases involving foreign troops, including the killing of a Kenyan woman in Nanyuki by a visiting British soldier.
Ms Tuya tabled the agreement on November 19 last year.
‘Should the offence committed by a member of the Visiting Forces or a dependant be punishable by death by the courts of the Host Nation, or by a sentence which runs contrary to the international commitments of the Sending Nation, surrender by the Sending Nation shall be subject to assurances that such sentence will neither be sought nor imposed, or, if imposed, shall not be enforced,’ reads the agreement.
Under Kenya’s Penal Code, offences such as murder, treason, and robbery with violence are punishable by death upon conviction. Kenya, however, has not executed in decades.
Human rights records show that the last executions were conducted in 1987, when leaders of the failed 1982 coup attempt were hanged. Since then, despite courts continuing to impose death sentences for capital offences, no execution has been carried out under Kenyan law.
The proposed agreement further provides that visiting soldiers convicted by Kenyan courts may serve their sentences in their home country.
‘In the event of the conviction of a member of the Visiting Forces or a dependant by the courts of the Host Nation, the competent authorities of the Host Nation shall give sympathetic consideration to a request for the sentence to be carried out in the Sending Nation,’ the agreement states.
In December last year, the National Assembly approved a report by the Defence, Intelligence and Foreign Relations Committee on the inquiry into the conduct of the British Army Training Unit Kenya (Batuk).
The committee recommended the immediate ratification of a defence cooperation agreement between Kenya and the United Kingdom following the expiry of the 2015 DCA in 2021, which left legal gaps in the framework governing Batuk’s operations.
France does not maintain a permanent military base or training unit in Kenya, unlike the British Army Training Unit Kenya. Traditionally, Kenya-France defence ties have concentrated on joint naval exercises, maritime security cooperation, and training of Kenyan naval officers.
Kenya and France have previously engaged in defence cooperation, including joint naval training exercises dating back to 2004.
During one such exercise, the French naval vessel La Boudeuse docked at the Port of Mombasa with equipment, while Kenyan naval officers were sponsored for further training in France.
The vessel is among French Navy patrol boats involved in maritime security operations, including protection of exclusive economic zones and embargo enforcement.
One of the key provisions of the proposed Kenya-France DCA obligates Kenya to accord visiting foreign forces specified privileges, immunities, and logistical support while operating in the country under agreed defence activities.
In a memorandum to Parliament, Ms Tuya noted that although Kenyan civil courts ordinarily have primary jurisdiction to try visiting forces for offences committed under Kenyan law, this position could be altered by treaty.
‘This jurisdiction may be modified by an agreement that grants the visiting force’s own authorities the primary or exclusive right to try their members,’ she said.
She added that if a member of a visiting force has already been tried by their home country’s service court for the same offence, they cannot be retried in Kenya, and any Kenyan court must take into account any sentence already imposed.