When it comes to the military, discipline and loyalty have always been top on the list of things that are demanded of soldiers the world over. But the demand for blind loyalty has now come back to bite the Kenya Defence Forces (KDF), which will now have to pay Sh24 million to an officer it dismissed for giving information that helped another ex-soldier’s case against the military. And, because President Uhuru Kenyatta had not personally fired Lieutenant-Colonel Moses Lukalu Sande as required by law, the High Court ruled that the military erred by relieving him of his duties.
The case is important because it involves soldiers’ rights to fair labour practices, fair administrative action, fair hearing, and rights to protection from dismissal, removal from office, demotion or otherwise subjected to disciplinary action without due processes guaranteed by the Constitution, KDF Act and rules of natural justice. Lt-Col Sande, a KDF specialist, was fired on May 6, 2014 for giving information about employment of specialists in the military’s legal office to a lawyer who was representing a sacked soldier.
To the KDF, this betrayed the loyalty expected of all soldiers hence Mr Sande had to go. He was at the time a senior officer in the legal department. Lt-Col Sande joined the army on November 15, 2001 as a cadet and rose through the ranks, eventually joining the KDF’s legal department. Things suddenly changed in May 2014 when a brown envelope was delivered to Mr Sande’s desk. In it was a letter, but not addressed to him. The document was, to Mr Sande, curious because aside from not being copied to him, it spoke of both termination of services and retirement. In giving the award, Justice Onesmus Makau ruled that, as per the law, officers above the lieutenant-colonel rank such as Moses Lukalu Sande can only be fired through a letter directly from the President which must state reasons for termination.
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KDF had refrained from attaching most documentation in the suit, arguing that this information is classified. The case put in focus the immunity that disciplined forces enjoy from provisions of the Employment Act, as Justice Makau held that the protection does not give KDF carte blanche to violate rights of soldiers guaranteed under the Constitution. Section 3(2) of the Employment Act states that its provisions shall not apply to armed forces, Kenya Police, National Youth Service and businesses owned and operated strictly by family members.
The KDF, in particular, has been put on the spot severally as its disciplinary and court martial processes are often perceived to be biased. At the heart of Justice Makau’s decision was the fact that KDF failed to table any evidence that President Uhuru Kenyatta indeed authored a termination letter to Mr Sande in line with military procedures for dismissal of any officer above the lieutenant-colonel rank. In court, the KDF painted Mr Sande as troublesome.
For instance, the court heard, in 2013, the KDF was preparing to initiate court martial proceedings against several servicemen who were accused of breaching various laws. Mr Sande advised that revised regulations for the army at the time had not been effected hence several cases would fall flat on their faces.
His boss and chief of legal services at KDF Kenneth Okoki Dindi viewed this as insubordination, arguing that Mr Sande “resisted instructions from him and continually undermined command maintaining the antagonistic position despite the Act having transitional provisions”.
“During the review of the Armed Forces Act (now repealed) Mr Sande was pushing for amendments that went against the grain of a disciplined force,” Mr Dindi added. In the same year, ex-soldier Phinhas Mugo was facing seven charges at the court martial court related to losing his duty-assigned weapon, leaving his post before being relieved and absconding work. KDF prosecutors were caught flat-footed when Mr Mugo’s lawyer, Odera Were, used KDF’s hiring policy at the legal department to challenge the case.
Angered by Mr Were’s knowledge of the policies which appeared to strengthen Mr Mugo’s case, KDF opened investigations into how the information had been acquired. Court records do not indicate the findings of the probe, but show that Mr Sande had communicated the information to Mr Were. KDF immediately opted to dismiss Mr Sande, arguing that he shared classified information with an unauthorised individual. At the time, Mr Sande was 41 years old and was on the verge of becoming a full colonel. Despite being ranked as a lieutenant-colonel, he was receiving the monthly Sh313,000 salary of a full colonel.
On average, one will be promoted to lieutenant-colonel anywhere between 31 and 40 years of age. After 40, one is likely to be promoted to colonel. Mr Sande argued that his path was predictable in the military hence he was entitled to compensation for salary until the retirement age of 56 years. He demanded Sh56 million if KDF was not willing to restore his employment.