The National Security Council Under the New Constitution
Open. Accountable. Responsible
The NSC is right at the top of the chain in matters of national security in Kenya including being vested with the sole authority to deploy our defence forces.
The NSC is a (largely) civilian outfit expected to perform supervisory control over the functions of the top security organs in the country.
It is led by the President and has in its ranks several Cabinet Secretaries, and the heads of the 3 national security organs.
The National Security Council, NSC, is really the supreme organ mandated by the New Constitution to be responsible for the security of Kenya and her people. Naturally, it will be led by the Head of State:
131. (1) The President—(d) is the chairperson of the National Security Council; ......
240. (4) The President shall preside at meetings of the Council.
As the final authority on all security matters in the country, the NSC is designed to ensure that there exists an accountable top-level civilian authority to oversee the specialised services of the three national security organs. This is consistent with the spirit and letter of the New Constitution's declaration that executive authority and power belongs to the people of Kenya:
239. (5) The national security organs are subordinate to civilian authority.
To ensure there are checks on the operations of the NSC, Parliament will receive from the Council, a report at least once each year, on the security situation in the country. This document to be debated by both Houses of Parliament will be key, for it will contain reports from all three national security organs:
(7) The Council shall report annually to Parliament on the state of the security of Kenya.
Only the NSC is empowered to allow our Defense Forces to engage an enemy or to deploy outside our borders as well as invite a foreign force into the country. Before that happens, the NSC must seek approval from the people's representatives in both the National Assembly and the Senate, to provide for checks and balances:
(8) The Council may, with the approval of Parliament— (a) deploy national forces outside Kenya for— (i) regional or international peace support operations; or (ii) other support operations; and (b) approve the deployment of foreign forces in Kenya.
Roles and Functions
The National Security Council will supervise the national security organs:
240. (3) The Council shall exercise supervisory control over national security organs and perform any other functions prescribed by national legislation.
Even after the National Security Council Act 2012 was enacted, it did not come to effect until months later after the final announcement of the results of the first elections in March 2013 under the Constitution of Kenya 2010. The Act is mainly woven around Article 240.
The NSC is expected to be a hands-on body in touch with all facets of the security of the country, aware of real and potential threats, and ably strategise and effect improvements on the capability of the three national security organs to assure the safety of the country and its people:
(6) The Council shall— (a) integrate the domestic, foreign and military policies relating to national security in order to enable the national security organs to co-operate and function effectively; and (b) assess and appraise the objectives, commitments and risks to the Republic in respect of actual and potential national security capabilities.
As the body in charge of the national security organs, the NSC is expected to ensure that these organs are not only in compliance with the Constitution especially on key appointments within their ranks but that they conform to gender, regional and cultural considerations in their operations; and are non-partisan in their service to the people of Kenya:
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; (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; and (d) recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.
239. (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.
Structure and Membership
The membership of the NSC is drawn from top civilian and professional security branches of the executive, respectively from the Cabinet and from Commanders of the three arms of the national security organs. Indeed the importance of this Council can be noted from the fact that its membership is composed entirely of holders of constitutional offices. Article 240 of Chapter Fourteen - National Security, Part 1 - National Security Organs:
240. (2) The Council consists of— (a) the President; (b) the Deputy President; (c) the Cabinet Secretary responsible for defence; (d) the Cabinet Secretary responsible for foreign affairs; (e) the Cabinet Secretary responsible for internal security; (f) the Attorney-General; (g) the Chief of Kenya Defence Forces; (h) the Director-General of the National Intelligence Service; and (i) the Inspector-General of the National Police Service.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. The National Security Council Act 2012. National Council for Law Reporting. The Attorney General.