Somalia’s Defining moment

Somalia’s Defining moment 

Atunga Atuti O.J.

For the past forty three years Somalis have never had a chance to elect a president in their own soil. And over the past 21years, the Country has not had a central government. September 10^th is therefore a defining moment for the Country. It is the first time that Somalis participate in the election of their president. The past two presidents under the transition arrangement have been undertaken in Kenya and Djibouti. These elections are therefore an important confidence boost, it will also help close an era of conflict and open doors of hope, peace and development.

The elections have come at a time when Somalia has missed several deadlines in the move from the transition arrangement to a more stable government which for the very first time in her twenty one tumultuous past will be constituted in Mogadishu. It is not only the Somalis who are euphoric about this development, Kenya which is host to large Somalia populations and has borne the burden of un-ending refugee crisis and has also been a victim of Somalia instability and radical elements and which has contributed a large force for the pacification and stabilization of the country is keen to see the process concluded peacefully. Other regional actors interested in the establishment of order and central control in Somalia include Ethiopia, Djibouti Burundi and Uganda both of whom have contributed to the African Union Mission in Somalia. The scenes witnessed in Mogadishu in the build up to the presidential elections are a clear testimony of the yearnings among the Somali populace themselves to have a transition from war to peaceful streets and beaches where all Somali people will be able to call home.

The level of interest that both the parliamentary and presidential polls have elicited is manifested in the number and quality of persons who have offered themselves for various positions. Somalia Diaspora has shown keen interest in the affairs of their motherland. This is testimony of the wish to be involved in the reconstruction process and  end  to the anarchy  and displacement that has reigned supreme for the past two decades. Apart from the quality of candidates for the presidency, it is also worth noting that a relatively fresher and younger generation of Somalis are keen to take over leadership. The presidential contenders are between 45 and 55years.

As Somalis prepare to usher in the new post-transition government, Somalia will continue to require the support of the neighbours Kenya, Ethiopia, Djibouti to overcome the challenges of post-war reconstruction. And Somali war was no ordinary war. It is a conflict that has spawned over twenty years which has essentially annihilated all forms of development-social services, infrastructure, physical facilities like airports and harbours, roads, schools and universities. In a word Somali was reduced to a wasteland by her own leaders’ insatiable desire to acquire political power by all means. Somali will therefore require the support of her neighbours and the international community to re-build her human capital curtailed by twenty years of no central authority. The country will also need to establish instruments of government: a police force, an army train and deploy doctors and nurses, teachers and other cadres of personnel to run various departments and agencies of state and society. This is no easy task but more critical is the necessity for sustained support so that the allure of bandit economy and warlord-ism, piracy and wanton exploitation of Somali natural resources by local and international criminal networks does not return to destabilize the new administration. The new government also needs continued and sustained efforts to win the war against the extremist ideology that found expression in al-shabab even long after the militants are vanquished.

Somali has a large youth population-over 65 percent- many of whom have no formal education and who have grown in the lawless streets of Mogadishu and other towns and hamlets. This will present an immediate challenge of meaningfully engaging them so that they do not become disenchanted with the new government and end up as fodder for remnants or new militias and other elements who currently benefit from the status quo. These youths will need to be engaged in the reconstruction of their infrastructure, law and order, peace and stability. But more importantly the new government has to find ways of investing in enhanced skills of the Somali youth as a worthy investment in the future stability of the Somali Nation and Society.

The Somali economy is in tatters but the resilient of the Somali nation in Diaspora and even in Somali itself is one of the biggest strengths and assets that the new government and the international community can build on. Somali Diaspora can bring needed skills and international exposure and contacts necessary for the new government to take off. The Somali Diaspora in Kenya and their level of business acumen is an example of what a stable Somali state and society can deliver. Twenty years of no centralized authority, war and plunder would have routed even the strongest of Nation-States but the Somalis have continued to thrive even in foreign lands against all sorts of profiling and adversities. It is time the International Community  provided  the New Somali government with some sort of “Marshal Plan” for accelerated reconstruction and development in order to forestall another false start.

Africa is rising and is perhaps the only continent which through a combination  of resilient  peoples has escaped the vagaries of worldwide collapse of economies. It is time that African countries take the lead in the reconstruction of Somali. It is perhaps the only return on of investment in twenty years of Somali wilderness. It will be unforgivable of the African countries that entirely constitute the AMISOM Stabilization force to leave the reconstruction work to other countries whose soldiers have not shed tears and blood in Somali hills and valleys. It should always be remembered that when other countries interests were threatened by piracy and sea-robbery, they constituted a force to protect their interests. Kenya, Uganda, Djibouti and Burundi have taken the lead in dealing with internal threats in Somali. It will be important that nationals of these countries be accorded priority in the reconstruction process.

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Atunga Atuti O.J. is the Chief Executive Officer of the East African School of Human Rights and Convener of the Nairobi Policy Dialogues on East Africa and the Horn of Africa Email: eajournal@email.com

NIS Bill 2012 seeks to create a Police State

East African School of Human Rights

Memorandum to Parliament and other Stakeholders regarding

GLARING FLAWS AND CONTRAVENTION OF THE CONSTITUTION CONTAINED IN THE NATIONAL INTELLIGENCE SERVICE BILL, 2012

AUGUST 16^TH, 2012

The National Intelligence Service Bill, 2012 currently with Parliament for debate and possible enactment into an Act of Parliament for the purposes of fulfilling the Constitution of Kenya 2010 regarding the establishment of the Service and specifically to implement Art. 238 and 242 of the Constitution of Kenya 2010. In its present form there are a number of glaring gaps and provisions that are likely to contradict the letter and spirit of the Constitution and may legalise and legitimise a return to the mode of operation of the dreaded Special Branch. If passed in its present form, the Bill will reverse the gains of the new era of the political and constitutional reforms. The Bill entrenches impunity and manifests a clear threat to National Security that the Service is intended to promote, preserve and protect.

The following are some of the contentious issues arising from the NIS Bill, 2012:

A.     LIMITATIONS OF THE RIGHTS AND FUNDAMENTAL FREEDOMS

1.      In glaring contradiction of the Constitution, Clauses 31 to 42 of the Bill propose extensive limitations of the rights and fundamental freedoms. These include:

                                i.            Clause 37 of the NIS Bill, 2012 contradict Article 31 of the Constitution, by providing limitations to the right to privacy by giving the NIS personnel express powers to:

·         Search a person’s home or property.

·         Seize a person’s possession.

·         Monitor or interfere with a person’s communications. 

                              ii.            Clause 50 (1) gives the Director General sweeping extra-judicial powers to ensure the effects of a warrant which in normal circumstance is issued by a judge. The effect of such warrant (Captured under Clause 46) and the extra-judicial action of the Director General include authorising NIS staff to: 

·         Enter any place, or obtain access to anything;

·         Search for or remove or return, examine, take extracts from, make copies or record in any other manner the information, material, record, document or thing;

·         Monitor communication; or

·         Install maintain or remove anything.

- (We are of the view that for limitations of rights to be effective, there has to be clear justification and clarity on the conditions under which the said limitations are to be effected)

- The Bill should also guard against seeking to curtail freedom of information and especially for media practitioners in undertaking their duties and democratic functions

- Finally, the Bill must guard against attempting to limit rights saved under Art. 25 of the Constitution of Kenya 2010. 

B.      USE OF FORCE, FIREARMS AND PREVENTING ESCAPE (DETENTION)

 The NIS Bill 2012 introduces the use of force, use of firearms, and detention as elaborated under the First Schedule of NIS Bill 2012. This is bound to create competing jurisdiction between the NIS and the police. The arrest and detention powers of NIS will create competing jurisdiction with the police. For instance the clause on arrest; the Service should not arrest any person that is a preserve of the police and they should cooperate. Moreover, Schedule 1 D-Preventing Escape presupposes once again that the Service is an arresting authority. The danger of giving an institution whose accountability to the public is little such vast power is endangering the same public they seek to protect. The Board of complaints established under the Act is not independent enough to give that assurance that is shall perform the oversight similar to that envisaged by for example IPOA.

Such powers vested in the intelligence organisation will undoubtedly be misused by even creating assassination squad. Consequently, Kenya will effectively become a police state.

 -There is need for clarity regarding the members of the Service carrying arms and such other law enforcement functions that lie within the province of disciplined forces for which adequate procedures and safe guards are provided in the relevant laws regulating the same. What law will regulate the carrying of arms by the service?

C.      IMMUNITY BORDERING ON IMPUNITY

Clause 78 of the NIS Bill, 2012 provide protection of Director General and members of the Service for acts done in good faith. Clause 78 also shield the Director General or any member of the Service from producing any document or divulge or communicate any matter or thing relating to the any proceedings in a court, tribunal or commission of inquiry. This means the Service can arrest, detain and even conduct extra-judicial killings without being questioned by any authority. The NIS Bill clearly creates an opaque institution that operates above the law.

Art. 78 (2) insulates the DG and the Service from normal accountability demanded of the Service to other Constitutional bodies. It purports to legislate that not even Parliament or a duly established Commission of Inquiry can summon the Service. Parliament has unlimited powers even to impeach the President-how can the Service be so insulated that it is not answerable to anyone- Court, Tribunal, Commission of Inquiry”?

D.     TRANSITIONAL CLAUSE

Art. 86 (1) and (2) of the NIS Bill, 2012, provide blanket transition for the Director General and Directors without requisite vetting process that is usually conducted for all the state institutions to provide a fresh beginning under the new constitutional dispensation.

It is proposed that the DG like other State Officers of the same calibre be subject to the provisions of the Constitution of Kenya 2010 in respect to the terms of employment and  the position be filled under the NIS Act on a competitive basis and  within the established parameters and procedures and that Parliamentary Approval be a prerequisite for filling of such a vacancy.

E.      CENSORSHIP

Art. 60 of the Bill prohibits unauthorised access and retention of information by any person who is not a member of the service, and provides for a penalty of conviction to imprisonment for a term of seven years. Given the vital role played by media in Kenya, this amount to gagging the media and seeks to prevent whistle blowers in respect of divulging of important information that is of National Interest. It further purports to contravene Provisions of the Constitution in respect to Access to Information and freedom of expression which are fundamental rights. (There is an established tradition in this Country regarding the Media and publication of information in its possession that is of national Interest). This tradition which has found expression in the Constitution of Kenya 2010 is undermined by this provision.

F.       OVERSIGHT

Without due regards for the separation of power between the three arms of the government, Clause 66 and 67 of the NIS Bill ironically provided guidelines on how parliament conducts its intelligence oversight responsibility. What if the Joint  Committee of Parliament does not agree on a particular subject? What happens to the Oversight roles of each of the Chambers? 

G.     REPORTING

Art. 82 Annual Report- All Statutory Bodies report to Parliament why should the service in its report exclude Parliament?

H.     INTEPRETATION

Some terminologies are not defined under the interpretation section most glaring is the term extreme emergencies which has been left to the discretion of the Service- what will stop the service from treating each of the situations as an extreme emergency?

I.        FREEDOM OF INFORMATION

The NIS Bill, 2012, limits right of access to information contrary to Article 35 of the Constitution. 

J.        DEPUTY DIRECTOR GENERAL

The NIS Bill, 2012 do not provide for the substantive Deputy Director General position. There is need to provide for Deputy Director General who can act in the absence of the Director General.

-       Under establishment of the Director General, there is need to also create Deputy Director General. This will obviate unnecessary overload on the DG and also a potential difficulty where no other person may execute the office of DG in the absence or incapacity

-        The Proposed establishment of the position of Deputy Director General is in line with  the practice in other Agencies

K.      QUALIFICATION OF DIRECTORS

For purpose of establishing competitive human resources and cutting edge intelligence institution, there is need for the qualification of a service director to be pegged to a recognised degree, which is implemented from the effective date of the NIS Act.

L.       WARRANTS

 Art. 44 on issuance of warrants the section starting ...reasonably....up to  the end of Article 44”.... should be removed. It is not for the judge to “believe”. It’s the Service to convince the Judge that there is reasonable believe. But in any event, it ought to be upon satisfying the Judge that all other means have been tried and failed.

Art. 50 removes the principle of Judicial supervision of the service by conferring powers provided in Art. 46 without defining what the “extreme emergency” entails. There is therefore need for clarity that warrants are specific and are targeted at particular individuals and premises rather than as sweeping instruments at the disposal of the service. There is therefore need to define “circumstances” that constitute extreme emergency because this provision might be used to circumvent due process if the service construes or deems all situations to be extreme emergencies

What happens to warrants after they have been issued and executed? It is proposed that Art. 51 be expanded to require the Service to establish a mechanism for accountability for warrants issued be established in the Bill so that a return of warrants to the court that issued them is provided for.

It is also proposed that for clarity Under Art 47 (1) that the period of validity of a warrant be stated in days e.g. 30 days rather than ‘month’ because some months are longer while others are less.

M.   OFFENCES

Art. 52 dealing with offences of torture, cruel, inhuman or degrading treatment and prescribes a penalty. It is proposed that the section be amended to be in line with relevant statutes that deal with torture and related crimes as well as the case may be in the proposed “Prevention of Torture Bill”.  

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AA/STAKEHOLDERS

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East African School of Human Rights: Public Engagement with Security Sector Reforms in ...

East African School of Human Rights: Public Engagement with Security Sector Reforms in ...: East African School of Human Rights ...

Public Engagement with Security Sector Reforms in Kenya: Review of the national Intelligence Service Bill 2011

East African School of Human Rights

                                                         

A Public Forum on National Intelligence Service Bill

March, 2012

Introduction

The publication of the National Intelligence Bill in the last Quarter of 2011 has brought to the fore the often contentious debate on  the nexus between National  Security and Human Rights. The debate has often been carried out on two extremes-one end being that contending that Human rights supersede any provisions on National Security while the other taking the view that National security  may and can at times override the  enjoyment of human rights. This need not be  the case.  What has been lost in the process is the view that national Security and human rights can be,  are and have  to be  mutually complementing. The search for national security is and should essentially be about the protection of vital assets and safety of persons and livelihood systems. The framers of the Kenya Constitution 2010 recognized that by providing thus that...

Article. 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.

In working to operationalize this and other provisions on National Security, a Bill to establish the National Intelligence Service has been released for public debate and input with the view of finalizing its preparation and subsequent enactment by Parliament. It is anticipated that the Bill will be tabled in Parliament in March 2012 in essence to implement the provisions of Article 242 of the Kenya Constitution.

In view of the significant role assigned by the Constitution to the National Security Agencies, the anticipated reforms in the Security sector and in order to foster robust public participation in the enactment of these crucial Laws, the East African School of Human Rights is proposing to host a public forum to interrogate the provisions  and proposals in the Bill ahead of its tabling in parliament in order to ascertain among others the following: 

1.whether the Bill conforms to the provisions of the Kenya Constitution in respect to the establishment of NIS;

2. whether the Bill conforms to the spirit of the New Constitution and especially in respect to the anticipated reforms in the security sector

3. how the Bill balances the protection of human rights and national security; 

4. and if the Bill borrows from international best practices on the democratic control of security agencies ( establishment, operations and oversight mechanisms)

 Plan
The School plans to convene the  one day public forum bringing together various interests among others civil societies, academicians, security sector experts and commentators, representatives of the various agencies involved in Constitution Implementation process KLRC, CIC, AG’s office and Government Security Agencies and others to reflect on the proposed legislation regarding  National Security Intelligence Service with the view of inputting to the Bill before its presentation, debate and enactment by Parliament. The Forum will also present a platform to receive public views, proposals and participate on the creation and/ or reform of the National Intelligence Service to respond to Kenya’s security needs for the 21^st Century.

The Forum will be implemented in four panels an opening key note address and four  panel discussion around a series of topics as outlined below. It is planned that this format will enable as many persons to engage with the issues  and will not require panelists to prepare length papers for reading at the forum.

Goal and Objectives

The Goal of this Forum is to avail an opportunity for across-section of the Kenyan Society, professionals, civil societies, security sector experts and government agencies to participate in the formulation of enabling  legislation to implement  and operationalise relevant section s of the Constitution and especially Article 238.it will also  help to support the Constitution Implementation process by providing a site for interaction with this crucial Bill.

The main objective of the Forum is  to gather public input and reactions to the proposed Bill with the view of strengthening its provisions and especially in the areas set out below.

The School has identified the following areas as some of the critical topics for deliberations;

National Security- Nature and challenges  to Kenya's Security in the 21^st Century

National Intelligence Service  Bill and the New Constitution

National Intelligence Service Bill and the Bill of Rights in the Constitution

National Intelligence Service- Review of Functions

National Intelligence Service Proposed Oversight Mechanisms

National Intelligence Service Bill and  Institutional Operations

National Intelligence Bill- Appointment of key Officers

Panel Speakers will be assigned the above and other topics and will be required to prepare a short but comprehensive reflection on the topic which  they will present for ten to fifteen minutes followed discussant comments  then  by an open   plenary responses and input. Since the idea is to get the reactions from the invited participants, the School will circulate a copy of the Bill with the invitations so that  we are able to engage in informed deliberations. It is also intended to   support public ownership, confidence and input into institutions created by the Constitution.

The forum will be held on March 6th 2012.But  Submissions can be sent even after this date to eajournal@email.com. The Bill dated November 11, 2011is available as a pdf from the same address.