NIS seeks powers to spy on communications made in Kenya

Powers to NIS to tap into your private communication are contained in the Statute Law Miscellaneous (Amendment) Bill 2014.
NAIROBI, KENYA: Government spies could soon have unfettered access to your cellphone messages and emails if a Bill proposing the removal of a requirement they first get court warrants before trawling through your private messages sails through National Assembly.

The new powers NIS is pursuing, which are likely to raise a public outcry given National Intelligence Service will be seen to be violating the private space of Kenyans, are contained in the Statute Law Miscellaneous (Amendment) Bill (2014). It 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.

The court process was meant to mitigate between the need to protect the privacy of citizens while at the same time allowing government agents monitor the activities of those that they suspect of criminal involvement in activities such as terrorism, money laundering, drug trafficking and corruption. It was upon the spy agency to convince the courts why it was important that the rights to privacy was removed but now this may not be the case soon, that is if the government gets its way in National Assembly.

This section targeted for amendment 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".

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Section 42 as currently written gives NIS powers to browse your mails only after obtaining court warrant. The spy agency therefore needed to apply for the document from the High Court, in writing stating among others the type of information, material, record, document or thing proposed to be obtained.

However, the proposed amendment seeks to give the spy agency unfettered powers to interfere with your communication without seeking consent from the High Court.

If parliament approves the amendments, the spies will now have powers to eavesdrop on your phone conversations and intercept your mails without the Judiciary exercising any control. This move coincides with security agencies seeking to tighten their powers in light of deteriorating state of security in the country. But curiously, it hasn't even bothered to have controls on the criteria for choosing whose mail to go for.

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The Bill further seeks to amend Section 36 (1) of the Act to give the spies power to infringe on the privacy of any person who is subject to investigations. Under the same Act, NIS can only monitor, listen or intercept communication of any person deemed to have committed an offence.

The Bill also proposes to give NIS Director General Michael Gichangi unilateral powers, "to hire, fire, propose, transfer and deploy officers including appointment of senior officers of the Service. “This hitherto has been the work of a five-member council working on a consultative basis.

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Currently the powers are vested with the five-member NIS Council which is chaired by Interior Cabinet Secretary. Other members are Cabinet Secretaries for Treasury and Foreign Affairs, the Attorney General and NIS Director General.

The current law states that 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 of the Service".

However, the Bill seeks to amend the Act by deleting 'Council" and replacing it with "Director General'.

The Bill also is seeking to strip the NIS Council's powers to discipline spy officers and instead transferring them to the Director General who will issue and maintain a disciplinary code for the Service in consultation with the Public Service Commission.

The Bill which is with the Leader of Majority Aden Duale further wants to replace the Attorney General from the council with the Secretary to cabinet.

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The right to privacy set out in Article 31 of the Constitution which states that every person has the right to privacy, which includes the right not to have their person, home or property searched; their possessions seized; information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communications infringed.

Meanwhile, sources have revealed Duale will return to the Attorney General proposals to strip Parliament of its say over internal deployment of the Kenya Defence Forces.

The same Statute Law Miscellaneous (Amendment) Bill 2014 seeks to delete sections 8 (3) and (4) of the Kenya Defence Force Act, which governs local military deployment, essentially diluting the input of the National Assembly in case the Government wants to use the military internally.

Monday, the chairman of the departmental committee on Justice and Legal Affairs Samuel Chepkonga said that some of the proposals may no see the light of the day. "We are waiting for that Bill to come to our committee so that we can interrogate it," Chepkonga assured.

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NIS Spying Aden Duale