Gichangi to face MPs over Bill on spy agency's direct access to phone calls

National Intelligence Service (NIS) Director General Michael Gichangi is expected to face MPs this morning to defend proposed amendments to give his agency more powers to trawl private communication.

Gichangi will appear before the National Assembly Departmental Committee on Defence and Foreign Relations to explain, among other things, why he wants unrestricted access to your cellphone messages, calls and emails without a court warrant.

Committee Chairman Ndung'u Gethinji confirmed the NIS boss will appear before his team this morning.

Gichangi will further seek to convince legislators to support the amendments into sections of the NIS Act which tends to consolidate powers within the Director General's office instead of the spy agency's council.

The new powers to the spy agency are contained in the Statute Law Miscellaneous (Amendment) Bill 2014 which proposes the deletion of Section 36 (2) of the current Act on limitation to right to privacy as enshrined in Article 31 of the Constitution, that provides for the court's participation.

This section provides that the right to privacy may be limited in respect of a person suspected to have committed an offence to the extent that the privacy of a person's communications may be investigated, monitored or otherwise interfered with.

This can only be done in line with if and when NIS -prior to taking any action under this section, obtain a warrant under Section 42 of the same Act that requires the spies to apply for the document to the High Court in writing, stating among others, the type of information, material, record, document or thing proposed to be obtained.

If Parliament approves the amendments, the spies will now have powers to eavesdrop on your phone conversations, intercept your mails without the Judiciary performing any role as security agencies seek to tighten their powers in light of deteriorating security in the country.

Yesterday, a senior intelligence officer told The Standard the amendments were necessitated by the prevailing security situation. As it is, the NIS argues it becomes tedious to secure a court warrant in emergency cases where a suspect may escape a security dragnet, when spies rush to court to apply for the order.

The Bill proposes to give Gichangi powers to hire, fire, propose, transfer and deploy officers, including appointment of senior officers of the service.

Currently, the powers are vested with the five-member National Intelligence Service Council chaired by the Interior Cabinet secretary. Other members are Cabinet secretaries for Treasury and Foreign Affairs, the Attorney General and the Director General.

This, NIS says, will allow the NIS chief make decisions on operation since he is in charge of the day-to-day running of the agency as opposed to the CS who may be pre-occupied with other State functions during emergencies and other pressing situations that seek immediate intervention.

The current law states the NIS Council may make regulations providing for the terms and conditions of service of the members of the service subject to the appointment, seniority in rank or grade, posting, transfer and promotion of members.

However, the proposed law seeks to amend the Act by deleting "council" and replacing it with "director general".

The Bill also seeks to strip the agency's council of powers to discipline spy officers and instead transferring them to the Director General who will now have powers to issue and maintain a disciplinary code for the service in consultation with the Public Service Commission.