Detectives could soon eavesdrop on your calls

PHOTO | FILE Detectives comb the scene of an explosion in Gikomba market last month. New Bill proposes changes that would make it had for terror suspects to be granted bail.

What you need to know:

  • Bill seeks to make changes, some of them significant, to 46 existing laws
  • The agency is also seeking to expand its mandate so that it can investigate, monitor or interfere with a person’s private communication if they are investigating them and not only when the individual is suspected to have committed an offence.
  • Chief Justice Willy Mutunga has since convened meetings with the heads of the security and intelligence agencies as well as the Executive over on the matter.

The National Intelligence Service could soon have the power to listen in on people’s phone conversations without having to seek permission from a judge of the High Court.

The agency is also seeking to expand its mandate so that it can investigate, monitor or interfere with a person’s private communication if they are investigating them and not only when the individual is suspected to have committed an offence.

If the National Assembly approves the new Statute Law (Miscellaneous Amendments) Bill, the NIS would also have the power to open letters and parcels and look at private emails and text messages.

This implies that the material obtained by the intelligence service in this way can be used as evidence if the person under investigation is arraigned.

Currently, the law allows the NIS to investigate, monitor or interfere with private communication only after obtaining a warrant from a judge and only on crime suspects.

Majority Leader Aden Duale has published afresh the Bill rejected by the National Assembly in December 2013, meaning it will be reintroduced in the House soon after it resumes sittings on Tuesday.

The Bill, which is usually used to correct minor anomalies in existing laws, seeks to make changes, some of them significant, to 46 Acts.

The Bill also proposes the introduction of circumstances under which courts can decline to grant bail to a suspect.

This appears to be in response to recent criticism to the Judiciary by the Executive and police for releasing suspects who then use the opportunity to commit crimes.

If the Bill is passed, courts will have the power to refuse to grant bail to suspects if the magistrate or judge believes that the person can fail to surrender to custody, commit an offence while out on bail or interfere with witnesses.

Bail can also be denied if the court or police officers involved in the case believe that the suspect should be kept in custody for his own good.

Also, suspects will be kept in police custody if the case has been adjourned for investigations that can only be made when the suspect is in remand.

The court and the police will consider the nature or seriousness of the offence, the character, antecedents, associations and community ties of the suspects, their record and the strength of the evidence already gathered against them.

DENY SUSPECTS BAIL

If passed as it is, these changes to the Criminal Procedure Code could provide a basis for the courts to deny terror suspects bail.

When he complained about it, Deputy President William Ruto cited the case of one Fuad Abubakar Maswab, who the government believes fled to Somalia whilst out on a Sh10 million bond.
He was accused, together with Jermaine John Grant and had been arrested while in possession of explosives.

Chief Justice Willy Mutunga has since convened meetings with the heads of the security and intelligence agencies as well as the Executive over on the matter.

Like the Bill rejected before, the 2014 version retains the provisions removing the power of Parliament to oversee the Kenya Defence Forces. The National Assembly, however, retains the power to approve the deployment of the KDF internally security assignments.

The government also appears to have dropped the attempt to restrict foreign funding for NGOs.

On the National Land Commission, the proposed Bill states that the commission’s common seal shall be authenticated by the signatures of the chairman and one other member of the independent body.
The Bill also seeks to change the Kenya Ports Authority Act and put the port at Kisumu under the Mombasa-based KPA.