October 14, 2013
Parliamentary leaders and security experts are calling for the powers of Kenya's National Intelligence Service (NIS) to be expanded in a bid to change the agency from a passive actor to an effective weapon in the battle against terrorism.
The NIS, the country's only agency mandated to gather and analyze intelligence, has come under heavy criticism for allegedly failing to prevent last month's attack on the Westgate shopping mall in Nairobi.
On September 27th, the NIS hit back, releasing an intelligence brief to the press detailing how it had warned relevant authorities, including Kenyan police, of impending terrorism attacks at Westgate and other public places.
It is this alleged inaction by police that has prompted calls to empower the NIS with the authority to take direct action on its own intelligence rather than depend on the collaboration of another security agency.
"The way NIS is currently constituted is more of a research institution. It is unable to act on its own [time sensitive] intelligence since the constitution gives this prerogative to the police," said Asman Kamama, chairman of the Administration and National Security Committee in Kenya's parliament.
"The Westgate mall attack was an attack on Kenyan sovereignty and a provocation," Kamama told Sabahi. "We are examining the operational weaknesses in the National Intelligence Service Act so that we can amend it accordingly and enable the agency to tackle the terror aggression head on."
On Friday (October 18th), the National Intelligence Service Director General Michael Gichangi, Inspector General of Police David Kimaiyo, Director of Criminal Investigations Ndegwa Muhoro and Secretary of Interior and Co-ordination of National Government Joseph ole Lenku are expected to testify before parliament's Administration and National Security Committee and the Defence and Foreign Relations Committee, which are probing events surrounding the Westgate attack.
"The two committees are not on a witch-hunting mission or blame game," Kamama said. "We are on a serious fact finding assignment motivated by the desire to identify structural and operational weakness within NIS and subsequently recommend how to empower the spy agency."
Kamama said NIS is staffed with the best minds in the field and is funded adequately. "There is no reason [why] NIS reports should gather dust on shelves in other agencies," he said. "If NIS was empowered, it could make the difference between life and death. Our aim is to strengthen NIS, not cripple it".
NIS, known as the National Security Intelligence Service before the NIS Act was passed in 2012, is directly supervised by the civilian-led National Security Council.
Kenya's three-year old constitution stripped NIS of the power to take direct action as a way to safeguard against civil rights violations, but Raymond Kipkorir Cheruiyot, a retired Kenyan army colonel and co-owner of Multi Security Consultants Limited in Nairobi, said the quest to respect human rights and demand operational accountability has crippled the agency.
"[The legislation] has reduced NIS into a paper tiger. This is not the way to go. There are many mechanisms to check against spy agency excesses such as parliamentary oversight authority or an independent civilian authority," he said.
"If NIS cannot guarantee security to Kenyans and visitors at the moment because of limitations from legislation, then the time is now to take a closer and deeper look at the NIS Act in totality," he said.
Cheruiyot said Kenya should emulate developed countries that have powerful and efficient intelligence agencies.
"In my opinion, NIS should be given legislative powers to conduct covert operations against terrorists in Kenya and beyond. Counter-terrorism operations the world over have become complicated and risky. Terrorists have upped their game by acquiring paramilitary skills," Cheruiyot said.
"An empowered spy agency is the eyes, ears and nose of the government. It is a platform on which state security is founded," Cheruiyot said. "Empowering NIS is akin to guaranteeing the safety of Kenyans and ensuring state security in general." NIS reports are given to the cabinet secretary of interior and co-ordination of national government, the ministry's permanent secretary, the inspector general of police, his two deputies and the director of the police's criminal investigation department.
"Intelligence is meaningful when timely used to bring desirable effects," said Ndungu Gathinji, chairman of parliament's defense and foreign relations committee.
"However, credible intelligence, if not acted upon, is useless, [and it is a] waste of taxpayers' money and an abdication of responsibility," he told Sabahi.
PeaceNet Kenya Executive Officer Stephen Kirimi Mwamba said for the NIS to have the much-needed operational power, parliament should amend the NIS Act of 2012.
"NIS should be given the powers it requires to confront organized crime such as terrorism, but at the same time be accountable to parliament," he told Sabahi.
"NIS spy agents must have the power to conduct immediate property searches and arrest terror suspects," Mwamba said. "The NIS Act limits the powers of the spy agency by describing it as a civilian organization and barring it from carrying out police functions or undertaking paramilitary activities, yet spy work by nature requires paramilitary and special operations skills or combat arms experience."
Some say, however, that Kenya should be cautious about giving increased powers to the intelligence agency.
"As long as the National Intelligence Service does not use unorthodox means such as torture and illegal detention on suspects, I support their quest for added power," said David Koros, programme coordinator of Kenya's Centre Against Torture, an organization dedicated to the protection of human rights and the rehabilitation of victims of torture by security agents and armed groups.
"However, my advice is to counter terror with justice," he told Sabahi. "For NIS to be trusted with sweeping powers, there must be corresponding mechanisms of checks and balances against arbitrary arrests, extra-judicial killings and falsification of evidence. In essence, the NIS agents must act morally and ethically."
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