Flood Cordons, a Detained Looter and a Journalist

Starting point. Soldiers are not police officers. The Kenya Defence Forces' statutory function includes assisting and cooperating with other authorities in situations of emergency or disaster (Article 244 of the Constitution), but that is a support role; it does not create general powers of arrest, search, detention or criminal investigation. Those belong to the National Police Service.

What is defensible. Physically stopping a person in the act of carrying goods out of a premises that has just been broken into is a momentary restraint to prevent the continuation of an offence and to preserve evidence. Proportionate, brief, and lawful in substance.

What is not. Tying him up and holding him at a military cordon for up to six hours converts a momentary restraint into detention by persons with no power to detain. Article 29 protects freedom and security of the person, and a person arrested must be taken before a court as soon as reasonably possible. A six-hour hold at a flood cordon is indefensible however good the intention.

Action. Untie him immediately, unless there is a specific, articulable risk of violence. Record the time of restraint, the reason, the force used, any injury, and his account. Photograph the jerrycan and the broken door if possible. Then either escort him to the nearest police station or hand him to the first police officer who arrives, with a written note. If he was salvaging his own property from his own shop, there is no offence at all - check that first.

Command point. The commander should also ask whether two riflemen were the right response to a suspected theft during a flood evacuation, and correct the section commander openly but without humiliating him.

Compulsion. Rights may be limited only by law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society (Article 24). Rising floodwater that endangers life is about as strong a justification as exists, and the commander is acting on a request from the civil authority. So yes, the area can be cleared, and a person who refuses may be removed.

But the manner is where judgement lies:

• Give him a stated deadline and a real opportunity to move the maize, if he has transport and the water is not yet dangerous.
• Allow him to take documents, medicines, and family members.
• Use the minimum force needed to move a body, not force that injures or humiliates.
• Do not destroy or dump the stock; move it upstairs or to higher ground if there is time.
• Record what was done, by whom, and when, because the decision may later be examined.

The sentry request. Refuse it. A soldier standing at a private door is performing a police protection function the KDF does not have, is not insured for, and cannot guarantee; more importantly it strips the evacuation of a rifle at the moment the evacuation is the mission. The honest answer to the shopkeeper is: 'We cannot guard property. We can help you move it for the next twenty minutes, and then you must come with us.' Saying this plainly is better than a vague promise.

Tone. The shopkeeper is not an adversary. He is a frightened man calculating whether his family eats next month. Treating him as a security problem will create one.

(a) Journalist. The interests in play are media freedom and access to information (Articles 34 and 35) on one side, and safety and operational security on the other. The lawful response is a safety restriction, never a content restriction. So: do not seize equipment, do not delete images, do not ban reporting. Do say: 'You cannot walk to the bridge; the water is still rising and the bank is undercut. I will give you an escort to the school roof, which overlooks the bridge, and I will tell you what I can when I can.' Restrict the place and manner, not the message. If a genuine operational matter must be withheld - say, a route being used to move patients - say only that it is withheld and for how long, not a blanket 'no comment'.

(b) House searches. Entering a home engages privacy (Article 31), and soldiers have no general power of search. But the purpose here is rescue, not evidence or property. Entry to save life in an unfolding disaster is justified by necessity, and refusing to check houses because of a warrant technicality would be indefensible if someone drowned in an attic.

Conditions that keep it lawful and disciplined:

• Go with the elder or a resident; announce entry loudly; do not force a door unless there is reason to believe someone is inside.
• Check occupancy only. Do not open cupboards, bags, or safes, and do not remove anything.
• Record each address entered, time, and result.
• If something suspicious is found, note it and hand the information to the police; do not seize it.

Common thread. In both cases the commander limits the method while serving the purpose - protection of life - and writes down what he decided and why.