New spy agency law negates Constitution gains

March 6, 2012 2:06 pm


NAIROBI, Kenya, Mar 6 – The National Intelligence Service (NIS) Bill has been termed as retrogressive and an affront to gains made in the new Constitution by a section of civil society activists and scholars.

Panellists attending a public forum organised by the East African School of Human Rights in Nairobi on Tuesday acknowledged that the Bill contains some substantial gains for the people, but at the same time is likely to infringe on citizens’ rights.

“We must check this Bill before it passes because once it passes, we will be told it is law and it cannot be questioned. It must be sieved through to ensure it does not erode the gains made in the Constitution,” University of Nairobi Lecturer Adams Oloo said.

Oloo cites a provision in the Bill which bars anyone from accessing classified information.

“Among the limitation of rights is that you will not be able to get classified information. Now, imagine you are in the complaints commission and you can’t get classified information… where do we get the balance?” he posed and called for a sober debate on the Bill.

Oloo has also advised Kenyans to discuss the Bill keenly, raising concern on provisions that give intelligence agents powers to search people’s premises without warrants.

“Under the new Constitution, every citizen has a right to fair administration of justice, these are fundamental rights of the citizens, and when you read this Bill it totally goes against this because it says NIS will have a right to search your premise without a warrant. These are the issues I think are very critical, they raise serious questions as pertains to the Bill of rights in the new Constitution,” the political science lecturer said.

His sentiments were shared by other key panellists at the public forum who included Jennifer Miano formerly of the Kenya Human Rights Commission, Kenya Law Reform Commission chairman Kathurima M’Inoti and human rights lawyer Harun Ndubi.

Miano took great exception with a provision in the Bill that guarantees immunity to the Director General of the National Intelligence Service, such that he cannot be questioned on any omissions or commissions while in office.

“Immunity often translates to impunity… that I cannot be questioned over my actions while I am in office; that I am considered to have acted within the scope of my authority and therefore in good faith. This is what is guaranteed for the Director General in the Bill. This particular Section 40 in my view will need reviewing, it needs total reviewing,” she said.

She also proposes a review of Section 19 which is not clear on who determines which information will be prejudicial to national security.

“How are we assured that this determination is not prejudicial to the people vis-a-vis the government because this has previously been abused where we keep on being told that this information is prejudicial to national security?” she added.

Ndubi said the NIS Bill 2011 is dangerous “because it largely implies that part of the Executive is insulating itself against oversight by courts, citizens, Parliament, the ombudsman and other institutions under the Constitution which are supposed to check others. The NIS must also be checked of excesses.”

Most panellists felt the provisions in the NIS Bill 2011 which also gives powers to the spy agency to tap people’s phones without notifying them in writing or going through the courts was retrogressive and an affront to individuals’ human rights and privacy.

But even as most panellists demanded a review of the Bill, some members present said it should be passed as it is and accused those opposed to its provisions of mischief.

Josephat Mutua of Bunge la Mwananchi and parliamentary aspirant for Makueni said there was nothing wrong with State spies tapping people’s phones.

“Those afraid of having their conversations tapped are either corrupt or clears knows that they participate in illegal businesses or activities. If you are clean and you know, you should not be afraid at all. Let the government do its work,” Mutua said in his contribution to the raging debate.

“Let the Bill be passed the way it is.”

The East African School of Human Rights (EASHR) said it organised the forum to avail an opportunity for a cross section of the Kenyan society, professionals, civil society, security sector experts and government agencies to participate in the formulation of enabling legislation to implement and operationalise relevant sections of the Constitution.

“The main objective of the forum is to gather public input and reactions to the proposed Bill with the view of strengthening its provisions,” EASHR said.


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