Why is Gichangi’s appointment case still pending in High Court?

By Hassan Omar Hassan

My recollection is that all matters before the courts having a bearing on the ‘new’ Constitution were concluded expeditiously. Be they on the elections date, appointment of County Commissioners, boundaries, challenging appointments to constitutional commissions among a host of matters following the promulgation of the Constitution.

Only the matter challenging the legality or constitutionality of the reappointment of Michael Gichangi as Director General of the National Security Intelligence Services (NSIS) by President Kibaki is yet to be concluded. Yet the application was filed in February last year.

The application filed before the High Court in Mombasa sought orders to quash Gichangi’s appointment on grounds of a letter from the Prime Minister that there were no consultations as required by the Constitution. On similar grounds, courts have quashed other appointments made by President Kibaki where it was determined that there were no consultations or ‘concurrence’ by the President and the Prime Minister.

It is, therefore, possible that Gichangi is in office ‘illegally’, depending on the eventual determination of the court. I am encouraged that the applicant, Muslims for Human Rights (MUHURI) has instructed another lawyer to follow-up on the matter.

It should hopefully proceed by next week. Preliminary consultations and feedback by MUHURI necessitated the change of lawyer. It was partly or largely the responsibility of the lawyer to ensure that the matter was dispensed off expeditiously. This was the case for many of the matters arising from the new Constitution.

Why then did this not happen for this particular matter?

The immediate former Director General of the NSIS Wilson Boinnet was undoubtedly a Moi appointee. He though enjoyed the reverence and respect of all the political divides. Even officers of the NSIS I often talk to remember with nostalgia the days of professionalism and perceived or real neutrality that existed under Boinnet’s watch. It is a clear case where crystallised professionalism outclasses amateurish nepotism and patronage.

It is concerning when there is serious doubt to the political neutrality and independence of an intelligence organisation. Public institutions must at all times endeavour for the highest professional standards and be perceived as impartial in carrying out their mandates.

If any officer of the NSIS wants to be active participants in the political process, the March 4 elections date is just months away. Gather the courage and join the fray. Public officers who hide behind public institutions to run partisan political agendas are in exercise of moral cowardice. 

The perceived or real independence and neutrality of the NSIS is critical going into the election period. Equally, stakeholders and Parliament need to debate and finalise the National Intelligence Service Bill 2011. This Bill needs to comply with human rights standards and norms and other provisions of the Constitution.

Equally, the proposal to grant the Director General almost exclusive and absolute discretion towards the destruction of classified information as per section 39 of the Bill is dangerous. This provides an avenue for the Director General to ‘clean-up’ their transgressions. Further, the provision of immunity provided for under section 40 of the Bill needs scrutiny.

Intelligence and security chiefs must be made to account for actions that exceed the mandates of their offices or where bias and partisanship can be demonstrated.

But as a first step towards restoring confidence in the NSIS, courts must determine the challenge to the unilateral reappointment of Gichangi.

The writer is a lawyer and former commissioner with the KNCHR