By Atunga Atuti O.J.
It is not lost on Kenyans that once upon a time when we were working on the 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 achieve is now being effected through the back door. This attempt is the National Security Intelligence Service (NSIS) bill. It is a dangerous piece of law, 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 the American intelligence cock-up that threw the entire world into meaningless and endless wars which the world is trying to extricate itself from. Essentially, the bill suggests that we never learnt anything.
The NSIS bill, if enacted in its present form, will create an institution operating in its own realm, on its own former images, opaque and answerable to none other than itself! All this 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 derogates from and claws back the principles of national security as provided for 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 and uphold 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 for in the proposed law in many respects tally with the provisions of the constitution in respect to the NSIS, 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 for 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 Article 24 in terms of their specificity.
There also are a number of other reasons why this is a dangerous piece of legislation that seeks to negate the provisions of the constitution: 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 Michael Gichangi 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 NSIS is subject to the constitution and parliament as per Article 238 (2a), the bill seeks to institute a procedure where it will ‘vet’ members of parliament (MPs) who will sit on a proposed oversight committee to be known as the 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 of 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 (Article 38 (3) by the same institution over which the committee is supposed to exercise oversight.
The bill further seeks to legislate that the NSIS 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 taxpayers’ 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?
With regard to information held by the service, Article 39 provides that the director general shall make decisions on what information and classified documents are to be kept and what is to be destroyed and the procedures thereof. What will stop the director general from being at the peck and call of certain interests if they have unfettered authority and the final word on the destruction of documents? It should be noted that there are established best practices from around the world on the preservation of documents 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 its accumulated 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 information and communications technology that can enable the service to archive most if not all the information instead of discretionary destruction of material gathered at taxpayers’ expense.
The bill does not mention at all that officers in the service will have police powers, nor does it provide for the procedures for their interaction with the public. But, there is a curious provision, in Article 20 Part III, 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 could run what has now come to be referred to ‘safe houses’-illegal detention centres 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 the 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 complicit 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 the public on a day to day 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: Article 38(4) ‘the committee shall conduct its functions within a ring of secrecy’… and Article 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 our taxes. So the bigger question is, what kind of national intelligence agency does this proposed piece of law intend to create?
It is for these reasons and in the interests of living 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 Kenyans must reject this law.
Atunga Atuti O.J. is the Chief Executive Officer of The East African School of Human Rights (email: [email protected])