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