Will Kibaki reappoint Gichangi to head NSIS?

By STANDARD TEAM

As the term of the Director General of the National Intelligence Service, Maj-Gen Michael Gichangi ends on Wednesday next week, speculation is rife on whether he will be reappointed.

Several factors could influence this important decision by President Kibaki. Evidence by the spy agency given to the Waki Commission on the 2007-08 post-election violence could form a key part of the ICC bundle of evidence against the ‘Ocampo Six’, should they be summoned to The Hague.

The six are ICC prosecutor Luis Moreno-Ocampo’s prime suspects over the post-election violence, and include Head of the Civil Service and Secretary to the the Civil Service and Secretary to the Cabinet Mr Francis Muthaura, regarded as close to the President.

Director General of the National Intelligence Service, Maj-Gen Michael Gichangi’s term ends on Wednesday next week and President Kibaki is expected to appoint his replacement or retain him. [PHOTO: FILE/STANDARD]

Others are Tinderet MP and ODM Chairman Henry Kosgey, Eldoret North MP William Ruto, Deputy Prime Minister Uhuru Kenyatta, Post Master General Maj-Gen (Rtd) Mohammed Hussein Ali and Kass FM radio host Joshua Sang.

President Kibaki must also take into account the need to detribalise key national security organs.

But with the Head of State serving his last term, he may not be keen to shuffle his intelligence deck. While the NIS Director General has security of tenure, his appointment is political in nature since the head of the spy agency must be a trusted confidant of the President.

Kenya’s founding President Jomo Kenyatta had James Kanyotu, while former President Daniel Moi had Brig (Rtd) Wilson A.C. Boinett

Under the new Constitution, the agency’s title has changed from the old National Security Intelligence Services (NSIS).

However, nothing in the Constitution bars the President from reappointing Maj-Gen Gichangi.

Parliament is expected to enact legislation to provide for the functions, organisation and administration of the national security organs, including the National Intelligence Service (NIS).

Kenya’s spy agency has come a long way from the days when it was headed by fighter pilot Brig (Rtd) Boinett, and it enjoyed a larger than life profile during the peak of the struggle for multiparty politics.

Initially known as the Special Branch, it was largely regarded as an intrusive agent of the State and feared by opposition politicians who believed it was being used to monitor their activities.

Its name changed to NSIS in January 1999 with the enactment of the National Security Intelligence Act with its main mandate being to report on threats to the security of the State.

After Kanu lost power in 2002, the agency became less visible. Maj-Gen Gichangi took over from Brig (Rtd) Boinett in January 2006, and was re-appointed for a further term of two years on January 19, 2004. The Waki report on the 2007-08 post-election violence said the scale of violence could have been contained had the Government acted on early intelligence reports from the agency.

No fresh legislation has been passed by Parliament though the time frame to do so is two years from the date of promulgation.

Article 238 of the New Constitution requires the NIS is expected to respect the people’s rights, freedoms, property, peace, stability, prosperity and other interest of Kenya.

Intensive lobbying

It is expected to pursue national security intelligence gathering in compliance with the law and with utmost respect for democracy, human rights and fundamental freedoms.

Yesterday, lawyer Otiende Amollo, who was a member of the defunct Committee of Experts said, the roles of the NIS were not expressly defined in the new Constitution, like other security organs, including the Police Service because of the delicate nature of its work.

"The NIS is an institution which now has border marks, unlike before when its predecessor, the Special Branch, was manipulated by individuals and political power brokers without due regard to law," Amollo said.

Those in the know say there has been intensive lobbying on the way forward, amidst disagreements, but a decision has not been made.

"Maj-Gen Gichangi may continue serving there as the DG. All indications are that he will be there for another term," an informed source told The Standard on condition of anonymity.

As the chief spy, the NIS Director General is among the principal advisors to the President and the Government on matters relating to national security.

The holder of the office is thus viewed as one of the few powerful chief executives of a Government agency in the country and the region.

Lobbying for Maj-Gen Gichangi’s retention as CEO of the NIS has been going on secretly, with few people being aware of the plot and especially in the PNU side of the Grand Coalition Government

Security of tenure given the DG is designed to insulate his office from attempts at political manipulation by members of the governing elite. He can say ‘no’ to any unlawful or sectarian instructions from his bosses without fear of losing his job.

As the chief spy, Maj-Gen Gichangi’s officers vet Government appointees before they are cleared to take office.

Constitutional office

His is a constitutional office, and the law states that when the Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under the new law, the President Kibaki shall appoint a person after consultation with the PM and with the approval of the House.

Both Maj-Gen Gichangi and Brig (Rtd) Boinett were drawn from the Directorate of Military Intelligence, which was briefly moved to the NIS counter terrorism section based in Karen.

Currently, the head of the counter terrorism section is not from the military, and many are keen to see what will happen, or if the norm will be broken.

Many were shocked in 2008 when Maj-Gen Gichangi appeared before the Waki Commission that investigated the Post 2007 Election Violence and revealed he had warned authorities of violence, and asked them to take measures to curb the same.

Maj-Gen Gichangi told the Commission the agency investigated those who were behind the gangs that caused mayhem in various parts of the country.

"We investigated and established the faces behind the outlawed militia, but because of the sensitivity of the matter, my lords, I should not be pushed to name them here," said the NIS head, and then asked to reveal the same in camera.

This did not go down well with many politicians, especially those who felt he needed to protect them. Some believe Maj-Gen Gichangi and top Government officials, including President Kibaki and Prime Minister Raila Odinga, could be called by the International Criminal Court to give evidence should the court summon the six Kenyans it has named as prime suspects over the 2007-08 post-election violence.

Special Branch, the predecessor of the NIS, was created in 1952 and operated under the Commissioner of Police, as a secret intelligence unit for the colonial government during the Mau Mau insurgency.

In 1963, it was made independent from the police. Its operations were formalised through a Presidential charter in 1969, which defined its roles and functions.

In 1986, the Special Branch was transformed into the Directorate of Security Intelligence (DSI) through a Presidential charter. However, structures and organisation of the Special Branch were retained.

It changed name and relocated from its notorious Nyati House offices to the outskirts of the city, near the Windsor Golf and Country Hotel.

In April 1999, Mrs Pamela Mboya, the former Permanent representative to the Habitat, was appointed to head a Committee that was charged with formulating a scheme of service for NSIS officers.