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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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.

National Intelligence Bill 2011-Why Kenyans Must reject this Draconian Law

National Intelligence Service Bill: Resist this Draconian Piece of Law

by

Atunga Atuti O. J.

It is not lost on Kenyans that once upon a time when we were working on a final draft of the constitution ahead of the referendum some clever fellow who we never got to know inserted the words...subject to National Security...which would have altered the spirit and effect of the Bill of Rights in the New Constitution. What the clever fellow failed to do is now being effect through the back door. This attempt is the NI SBill. The National Security Intelligence Service Bill is a dangerous piece of Law! The provisions of this piece of proposed legislation has been drafted like we never promulgated a new constitution that we never transited from the days of the “nyayo errors” that we never learnt from the lessons of history. We also never learnt from others including the lessons of fumbled American intelligence cook-up that landed entire world in meaningless and endless wars that the world is trying to extricate itself from essentially we never learnt anything!

The National Intelligence service Bill if enacted in its present form will create an Institution operating in its own realm, created on its own former images, opaque in its operations and answerable to none other than itself! All these on our TAXES and in an era when the rest of the world is moving towards democratic control over security agencies.

The Bill seeks to create an institution that that derogates from and claws back the principles of national security as provided in the Constitution. According to the Constitution,  National security shall be premised on  the protection from external and internal threats  to Kenya, her sovereignty, people, their rights, freedoms, property, peace and stability, prosperity and other national interests.  The Constitution further provides that the pursuit of national security must comply with the law, utmost respect for the rule of law, democracy, human rights and freedoms. In a nutshell, national security is subject to the authority of the constitution and parliament. The envisaged institution is a threat to these fundamental provisions rather than a guarantor of the same.

Whereas the functions as provided in the proposed law in many respects tally with the provision of the constitution in respect to the NSI Service, there are a number of clauses especially those relating to the limitation of rights, oversight, operational transparency and accountability that are wanting. While we appreciate the need to strike a balance between the rights of people working   for the Agency as provided in the Constitution and the need to safeguard the sensitivity and confidentiality of information they will come across in the course of their work. The provisions on limitations of rights do not meet the Constitutional threshold in accordance to Art 24 in terms of their specificity.

There also are a number of reasons why this is a dangerous piece of legislation and seeks to negate the provisions of the Constitution and thus must be rejected: first it has been drafted with the singular aim of perpetuating the institution as it exists today. It does not present much progression in tandem with the New Constitution. There are limited oversight provisions regarding the recruitment of the Director General. This in a way explains why the president re-appointed the current Director General without following the spirit and letter of the constitution pertaining to such appointments. In many respects the procedures for the appointment of the Director General in the Bill do not meet the constitutional threshold for such recruitment.

As pertains to oversight, even though the constitution is clear that the National Intelligence Service (NIS) is subject to the constitution and parliament as per Art. 238 (2a), the Bill seeks to institute  a procedure where it will "vet" MPs who will sit on  a proposed oversight committee to be known as Parliamentary Intelligence Oversight Committee (PIOC). Even though Article 38 recognizes that this committee shall be constituted in accordance with parliamentary standing orders, this provision is oblivious to the fact that Parliament operates on its own rules and standing orders and is not subject to the direction of any body. But even then the same article states that members of that parliamentary committee shall be subject to vetting (Art. 38 (3) by same institution over which the committee is supposed to exercise oversight! The Bill further seeks to legislate that the NIS and its Director General are not subject to any court, tribunal or commission of inquiry (Article 40 (2). How can an Institution that subsists on tax payers funding be insulated from public accountability and scrutiny? If this were the case, would we have known what information was available long before the madness of December 2007 and January 2008? Would we have known the various acts of omission and commission the NSIS and other Agencies engaged in and how useful the intelligence in their possession and further actions would have been in avoiding the Post Election Violence?

In regard to information held by the Service, Article 39 provides that the Director General will make decisions on what information and classified documents are to be kept and what is to be destroyed and the procedures thereof shall be made by the Director General. What will stop the Director General from being at the peck and call of certain interests if s/he has unfettered authority and final word on the destruction of documentation? It should be noted that there are established best practices from around the world on the preservation of documentation and their eventual de-classification. There is no mechanism to insulate the Service from the whims of a rogue Director in respect to preservation of the integrity of the institution and it's accumulated institutional resources, memory and documentation. Whatever information the Service will gather constitutes part of our national treasure, heritage and history and should be preserved. What will stop an outgoing Director General from prescribing the destruction of all information gathered in his or her tenure of service?  There are a lot of advances in ICT that can enable the Service to archive most if not all the information and documentation than the s  discretionary  destruction of  information gathered at tax payers expense.

The Bill does not mention at all that officers in this Service will have police powers neither does it provide for the procedures for interaction with the public.  But, there is a curious provision, in Part III Article 20, which prohibits the service from “torture or any other cruel, inhuman or degrading treatment”. Though in the face of it this is a mundane provision, nowhere in the Bill is the service allowed detention or custodial powers. How then can the proposed law purport to prohibit the Service from torture? The mischief in this is the possibility that the service runs what has now come to be referred to "safe houses"-illegal detention centers that are not covered by any law. There is evidence in the public domain regarding the cooperation between Kenya and Foreign Intelligence services. It is also instructive to note that there is evidence that  Americans have been running such facilities around the World that are now a cause of international furore where torture and other inhumane acts took place. Such facilities would not be allowed to operate in US soil hence they had to be established elsewhere. Has the service been complacent in these acts in association with foreign powers? Is there more than we know in the fight against terrorism? If the entire Bill does not mention any custodial facilities-at what point will citizens and others come into contact with the service to the extent of being tortured? Will the agency have police powers? Will it be dealing directly with public on a day today basis and if so what will be the nature of such interactions and under what Law?

But more worrying is the tone and choice of words that the drafters of the Bill have used. Take for example the following two instances: Art 38(4) the committee shall conduct its functions within a ring of secrecy… and Art. 40 (2) gives absolute immunity  to the Director General and his officers from disclosing information in any proceedings in a court, tribunal, commission of inquiry or any other body....All these on your TAXES. So the bigger question is what Agency does this proposed piece of law intend to create?

It is for these reasons and in the interests of living to the spirit and letter of the Constitution, participation, transparency and accountability and of disabusing this institution of its past hangovers of secrecy, torture and acting like a law unto itself that WE must reject this law.

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Atunga Atuti O.J. is the Chief Executive Officer of The East African School of Human Rights (email: eajournal@email.com)

Why Courts Matter: Challenges for Courts in Kenya

Why  Courts Matter: Challenges for Courts in Kenya 

(Part II)

 

Atunga Atuti O.J

In the First part of this two part commentary we delved into why courts matter in our efforts at entrenching democracy and constitutionalism. In this part, we examine the impediments to the proper functioning of Judiciaries and especially the Kenyan Courts.

In the last quarter of 2003, the Chr. Michelsen Institute, in Norway issued a Policy Brief  “Judicial Reform in New Democracies”-other than indication that this was focusing on general experiences  from  many developing countries, one would think the brief was basically on  Kenya. This because the gist of the paper was that  courts in many jurisdictions lack legitimacy because they are either populated by incompetent  officers, lack resources to discharge their functions, lack the independence to perform their functions or are inaccessible. In undertaking the enormous task of reforming the Kenyan  Judiciary, I wish to draw from the  the conclusions of that policy paper because they are critical  timely and relevant  to our situation as we try to institute corrective measures to reform our judiciary.

Why have our courts failed to meet almost all of our expectations? That we had rather resort to violence rather than settle electoral disputes in courts of law, that some constituencies are represented in parliament by people who didn't garner the mandate of the people for more than 48 out of 60 months in an electoral cycle, that disposing of property in order to raise capital for more meaningful economic activities is hamstrung by injunctions after the other, that resolving a dispute regarding a contract is subject to unpredictability that the obligations set out are either overtaken or become worthless. That poor people have no possibility of accessing justice and redress even when their fundamental rights have been  violated. That none of the persons now 36 months in the IDP camps cannot compel government to redress that situation.

A number of reasons have been given as to why our Judiciary is unable to meet the expectations of adjudicating over disputes, upholding the rule of law, supporting good governance, protecting and promoting the enjoyment of constitutional and fundamental human rights. The first challenge is lack of independence and autonomy: the lack of structured appointment procedures, appointments to the Judiciary has been at the pleasure of the President- hence courts often lack the face of Kenya in  their composition, social background. For a long time under the previous authoritarian regimes, the Judiciary was considered an extension of the executive arms of government. Secondly, perceived complicity in past repression often work to distance the work of the courts from the people  the system is supposed to serve. Further, clearcut disciplinary mechanisms for errant judicial officers has been lacking. This also applies to other mechanisms for transfer which has at times been used as a means of punishing certain officers for their perceived independence. But more important has been the lack of budgetary autonomy meaning that the Judiciary has been treated as a department in a particular “parent” ministry through which it can draw its finances.

The second set of challenges relate to the competence of Judicial officers. Judges are appointed from various practice backgrounds but are expected to preside over a variety of causes.  There is no structured training for instance to update judicial officers whose previous practice was in property law to say human rights, many of the duty stations lack libraries, computers, law reports and judgments research assistance and  recording facilities. This is particularly evident in respect to lack of “knowledge and skills on norms that underpin democratic society”.

Thirdly, the Court system have poor accessibility and resources capacity. Poor people can not access (except of course as provided in the New Constitution) legal aid, court structures, procedures and administration, poor legal literacy and sensitivity to societal demands have worked to hinder the ability of the Court system and the Judiciary in general to serve the interests of  the wider  population.

In undertaking judicial reforms in  Kenya, it is imperative that these challenges should inform the process of transforming our Judiciary into a modern, accessible and democratic institution able to meet the challenges of the 21^st century. It is not useful to change faces, vet existing and new appointments, all very important,  unless the reform of the judiciary is undertaken in a holistic manner. Budgetary autonomy, continuous professional training, legal aid, provision and improvement of physical infrastructure and uptake of advances in Information Communication Technology will go a long way in bringing the desired desired results  from the on-going  reforms.

Essentially then the “aim of  these reform measures is to insulate the judiciary from political  and other illegitimate influences, and to strengthen its influence”. This  must be coupled with the “change in mentality of the judicial officer to instill a new commitment to constitutionalism” as well as enabling the Judges “understand their role and the norms that guide and motivate their work”.

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Atunga Atuti O.J is the Chief Executive Officer, The East African School of Human Rights.