A High Court order has paved the way for a civilian body to oversight the National Intelligence Service (NIS).
In a judgement exclusively seen by The Standard, Justice Reuben Nyakundi ordered the State to appoint five members to sit on Intelligence Service Complaints Board within 180 days. The board is required to check the excesses of the spy agency,
The State has for seven years since the enactment of the National Intelligence Service Act, 2012 (NISA) failed to establish the board. Its main work is to receive and inquire into complaints from aggrieved persons on anything done by the NIS director general or a member of the service.
Successive governments have ignored the provision to establish the civilian oversight body since 1998, when a civilian complaints mechanism was for the first time statutorily provided for under Section 25 of the 1998 National Security Intelligence Service Act.
At that time, the then Special Branch was a dreaded security outfit accused of torturing government critics and detaining them incommunicado.
Its successor is the NIS, whose work is to gather information and pass it to different agencies and brief the president, who is the head of the National Security Council. Although reformed, the service still requires oversight given the risk of abuse of power.
The spy agency is increasingly playing a front-line role in President Uhuru Kenyatta’s administration, as besides tapping spies to head key security agencies, the president has directed NIS to provide specific intelligence on cartels blamed for corrupting the public service system.
In the past, there have been complaints against the government’s mass surveillance on citizens as a violation of civil liberties, as well as the role of the spy agency in human rights violations, such as rendition, which could be among the complaints the oversight body, if implemented, is likely to confront.
Human rights lobby Katiba Institute argued in its court petition that the law and provisions ensuring civilian authority is established and exercised over the NIS have not been properly and comprehensively implemented.
Consequently, the petitioner argued, citizens have limited recourse whenever their rights are violated by service members.
“Per the petitioner, the failure to operationalise the board compromises the rights of citizens to fair administrative action against wrongful actions of the director general and the members of the NIS,” the court papers state.
“Such omission, the argument goes, also runs the risk that the NIS could run without any oversight mechanism, contrary to the dictates of the Constitution, like its predecessor the Special Branch.”
The judge found there was no plausible reason given on why the NIS has had no civilian board in place since the NIS Act came into operation.
“These explanations, respectfully, amount to mere excuses in my view. It cannot be said that a delay of six years since the commencement of the NISA is not inordinate. That the Constitution is not explicit is its timelines for the requirement that there be established a civilian authority to oversee the workings of the NIS is not far from being a compelling excuse for the respondents to be resting on their laurels,” the judge ruled.
In the case, Katiba Institute, though its lawyers Lempaa Suyianka and Ruth Nyaberi, argued that the delay had denied Kenyans a right to seek redress, and that the importance of the board was to ensure accountability and transparency in the agency.
Justice Nyakundi directed the State to file an affidavit showing that it had complied with court orders at the end of the exercise. According to the judge, the respective government agencies had failed to show steps it had taken from 2018 when the case was filed.
No evidence
“All that matters is that it is a constitutional requirement that the NIS be subject to civilian authority. The public has a legitimate expectation of this, yet the constitution of the board is as far as the evidence herein suggests, in limbo. While I in no way seek to usurp their mandate by directing how they ought to operate, I find that for a respondent that has insisted on being in the advanced stages of operationalising the board, from the time the petition was filed up, through the length and breadth of the proceedings culminating in this judgement, little by way of evidence has been adduced in support of their assertions,” he ruled.
