Kenya spy agency powers enhanced under new Bill

Kenya’s spy agency will have unfettered powers to search your home and your property, tap your phone or monitor your emails, without a warrant on suspicion that you have committed a crime. 

The spies can cite “extreme emergency” to intrude on your privacy, and apply for a warrant 36 hours after they have been snooping on you or after they broke into your house.

All this will be legal, if a Bill in Parliament is approved without amendments.

These are some of the proposals contained in the National Intelligence Service, which will be the new name of the National Security Intelligence Service, formerly the Special Branch.

The Bill is awaiting formal introduction in Parliament, even though it was submitted to the august House Wednesday from the Government Printer, who published it on Monday.

Even so, the warrant will be issued ex parte, meaning that the NIS will just need to convince the judge and once they get the warrant, they can go ahead and “enter any place or obtain access to anything; search for or remove or return, examine, take extracts from, make copies of or record in any other manner the information, material, record or thing; to monitor communication or to install, maintain or remove anything".

Patrick Lutta, a lawyer, told the Nation that an ex-parte hearing means that the NIS will be heard alone and a warrant issued.

“They won’t have to hear the other party,” said Mr Lutta, meaning that you’re unlikely to know that there are people on your tail. But then, that’s the nature of the intelligence service, to do their work covertly.

Detain suspects

With what may rekindle the memories of the Special Branch, the Bill also gives the NIS the power to detain suspects and to lock up indefinitely those who are on the radar of the intelligence service.

“A member of the service may use an instrument of restraint to prevent: the escape of a suspect or a detainee,” reads a section of the Bill.

The time for detention is unlimited because the Bill notes that it shall not be “for a longer period than is necessary to secure the purpose for which it was used”. Similarly, it shall not be used to “punish a person”.

But to quell fears that the detention might end up in torture, the NIS Bill has prescribed that any officer who tortures a person shall be jailed, upon conviction, for up to 25 years without the option of a fine. Those who act in a “cruel, inhuman and degrading” manner, will upon conviction be locked up for up to 15 years.

The country’s spies also want the powers to carry and use firearms.

“A member of the service, may, where necessary for the performance of his or her functions under this Act and with the approval of the Director-General, carry and use an official firearm,” reads the Bill.

There is in fact an elaborate manual that they’d follow if involved in a violent confrontation.  

For example, they will first warn you, and if you resist, they will shoot. In the event that you’re severely injured, then they’re required to offer emergency assistance. Failure to do so, according to the Bill, will be a grave offence.

In case of death, the officer or his superior will notify the next of kin, a relative or a friend about the incident, while “securing” the scene to have investigations. The use of firearms is prescribed in order to “save or protect the life” of the officer.