Constitution of Kenya explained
- Written by Steve Nguru
The National Intelligence Service under the New Constitution
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The National Intelligence Service is one of the three top organs of national security subordinate to civilian authority under the National Security Council.
To gather intelligence and counter-intelligence.
Headed by a Director-General assisted by Directors as head of Divisions.
The National Intelligence Service, NIS, was previously known as the National Security Intelligence Service, NSIS under the former constitution. The NIS is just one arm of the three top national security organs, the other two being the Kenya Defence Forces and the National Police Service.
As its name implies, this constitutional body, concerns itself with gathering and using intelligence and counter-intelligence reports for the security and safety of the country and its people. This writer believes that the NIS first shares this information with the top security arm of the nation, namely the National Security Council, which in-turn, shares the same with the other two organs of security under it mentioned above, i.e., the National Police Service, and the Kenya Defence Forces.
The NIS derives its authority directly from the Constitution of Kenya 2010. Chapter Fourteen - NATIONAL SECURITY, Part 1 — National Security Organs, Excerpts:
239. (1) The national security organs are— (b) the National Intelligence Service; ...... .
242. (1) There is established the National Intelligence Service.
This is probably the most secretive and covert of the three organs. Nevertheless, as one arm of the three national security organs, the Constitution of Kenya places the National Intelligence Service subject to the direct supervision by the National Security Council, NSC:
(3) The Council shall exercise supervisory control over national security organs .......
By establishing such a hierarchical order, the Constitution ensures that the NIS remains subject to civilian authority:
239. (5) The national security organs are subordinate to civilian authority.
That is not all. The Service is also under the authority of the constitution and legislation:
238. (2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles–– (a) national security is subject to the authority of this Constitution and Parliament;
That is to say, the NIS is answerable to Parliament's oversight authority in so far as its operations and policies are concerned. This was significant step for freedom and personal liberties, given that its infamous predecessors - the NSIS, the Directorate of Security Intelligence, and the Special Branch before them - were seen as a law unto themselves, dreaded by every Kenyan:
(2) (b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms; (c) in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya; .......
Not only that. Because the security agencies answered only to the President, he could use the Services for personal gain or to intimidate political opponents. That changed with the passing of the New Constitution:
(3) In performing their functions and exercising their powers, the national security organs and every member of the national security organs shall not— (a) act in a partisan manner; (b) further any interest of a political party or cause; or (c) prejudice a political interest or political cause that is legitimate under this Constitution.
Indeed, for decades, it was widely believed that the very top of the political and executive levels in government maintained well-equipped and well-trained elite units within the Service for the express purpose of crushing and intimidating political opposition. This forced the drafters of the New Constitution to leave nothing to chance:
(4) A person shall not establish a military, paramilitary, or similar organisation that purports to promote and guarantee national security, except as provided for by this Constitution or an Act of Parliament.
It has not been all rosy however, on matters of national security since the Constitution was enacted in 2010. As it turns out, public opinion on the effectiveness of the NIS has been divided especially in the last two years, due to increased cases of terrorism carried out within the country with the security organs seemingly unable to stop the attacks. Sections of the public and some experts have been calling for its field agents to be allowed to bear arms while on the hunt for internal and external terror suspects. Yet others have proposed that the Service be allowed to listen in on phone and email conversations of the citizenry in order to track suspects and prevent attacks.
Despite spirited public protestations, these proposals carried the day when on the 19th of December 2014 amendments were made to the Prevention of Terrorism Act 2012 giving the Cabinet Secretary for Internal Security and the National Assembly the authority to permit the NIS and its sister security organs a freer hand to intercept personal communication in the course of their counter-terrorism work:
36A. (1) The National Security Organs may intercept communication for the purposes of detecting, deterring and disrupting terrorism in accordance with procedures to be prescribed by the Cabinet Secretary.
(2) The Cabinet Secretary shall make regulations to give effect to subsection (1), and such regulations shall only take effect upon approval by the National Assembly.
(3) The right to privacy under Article 31 of the Constitution shall be limited under this section for the purpose of intercepting communication directly relevant in the detecting, deterring and disrupting terrorism.
On the same date in December 2014, officers of the Service were given authority to make arrests following amendments to Section 6 of the National Intelligence Service Act of 2012:
6A. (1) An officer of the Service may stop, arrest and handover any person to the nearest police station whom the officer— (a) witnesses engaging in a serious offence; or (b) finds in possession of any object or material that could be used for the commission of a serious offense.
This essentially meant in the view of this writer that, henceforth, officers of the Service will not only bear arms at all times as was previously the case under the old constitution, but will also be able to plan and to carry out strikes targeted at terror suspects and their sympathisers, and to make direct hits at their hideouts.
Meanwhile, human rights defenders have continued to raise the alarm, warning from history, that arming the officers (and essentially giving them powers to interrogate suspects) or allowing them to listen to personal conversations could lead to abuse of rights. Before the amendments, its agents were required to only provide the Police and the Defence Forces with intelligence reports and could not compel them to act on the same; leading the NIS to point fingers of culpability especially at the Police Service, by accusing it of failing to act on its reports following the many acts of terror that occurred in different parts of the country especially between 2012 and 2014 (Business Daily, et al.).
Indeed, the practice of finger pointing between the NIS, the Police, and other agencies was also addressed in the passing of the December 2014 Security Laws Amendment Bill by the establishment of a new body known as the National Counter-Terrorism Center via amendments to the Prevention of Terrorism Act:
40A. (1) There is established a National Counter-Terrorism Centre, hereinafter referred to as the ―Centre which shall be an inter-agency body.
(2) The Centre shall consist of offices from the following organisations— (a) the Director appointed by the National Security Council; (b) the National Intelligence Service; (c) the Kenya Defence Forces; (d) the Attorney General; (e) Directorate of Immigration and Registration; (f) the National Police Service; and (g) such other national agencies as may be determined by the National Security Council.
(3) The members of the Centre specified under subsection (2) shall be seconded to the Centre for a period not exceeding three years.
(4) The Director shall be responsible for the management and implementation of the functions of the Centre.
This Center will be the top organ in direct charge of wide ranging soft counter-terrorism efforts:
40B. (1) The Centre shall be responsible for the co-ordination of national counter-terrorism efforts in order to detect, deter and disrupt terrorism acts.
(2)Without prejudice to the provisions of subsection (1) the Centre shall— (a) establish a database to assist law enforcement agencies; (b) conduct public awareness on prevention of terrorism; (c) develop strategies such as counter and de-radicalization; (d) facilitate capacity building for counter-terrorism stakeholders; (e) co-ordinate with other government agencies to provide security certification for aviation schools or companies.
The center is expected to liaise, rely on and to co-opt private citizens as well as all government bodies in its efforts at fighting terrorism:
40C. (1) The Centre may request any person or government body for any information relating to terrorism.
(2) Members of the public have a responsibility to furnish the Centre with any information relating to terrorism which is within their knowledge.
Article 242 of the Constitution is brief on the specific role and functions of the NIS:
242. (2) The National Intelligence Service–– (a) is responsible for security intelligence and counter intelligence ....... .
Intelligence is just but one facet of a wide mandate entrusted jointly to the NIS and its sister national security organs mentioned above. All three share the following mandates:
238. (1) National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests.
Though covert in its nature and operations, the National Intelligence Service must respect the Constitution and parliamentary (national) law, in its modus operandi:
242. (2) The National Intelligence Service–– (a) ....... to enhance national security in accordance with this Constitution; ....... (b) performs any other functions prescribed by national legislation.
238. (2) (b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
The functions of the NIS are prescribed by legislation in the National Intelligence Service Act 2012 enacted by the people's watchdog - the National Assembly, as the spirit and intent of the Constitution desires.
Director-General of the NIS Major-General Philip Kameru
The current Director-General was appointed on the 11th of September 2014 after vetting by the National Assembly's Departmental Committee on Defence and Foreign Relations. The immediate former NIS boss Major-General Gichangi, resigned on the 14th August 2014, 2 years before the expiry of his term.
He and his predecessors have been drawn from senior ranks of the Army, specifically serving as heads of military intelligence. On his nomination by the President on 21st of August there were a few scattered murmurs on the suitability of career soldiers to head the NIS.
The NIS Act 2012 has the Director-General hold office for a term of five years but be eligible for re-appointment for one further term. Thus his term ends in September 2019. There are 7 Divisions within the Service each headed by Directors appointed by the Director-General.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. National Security Intelligence Service website. Retrieved August 2012.
3. National Intelligence Service Act 2012. National Council for Law Reporting. The Attorney General.
4. Website of the Parliament of Kenya. The National Assembly. Retrieved September 2014.
5. "Gichangi set to get new powers over spy agency". Business Daily. Retrieved June 2014.
6. Prevention of Terrorism Act 2012. National Council for Law Reporting. The Attorney General.