THE NATIONAL INTELLIGENCE SERVICE BILL, 2011 - ConstitutionNet

[Pages:36]THE NATIONAL INTELLIGENCE SERVICE BILL, 2011

ARRANGEMENT OF CLAUSES

PART I - PRELIMINARY

Clause

1-Short title and commencement. 2-Interpretation. 3-Application.

PART II ? COMPOSITION, FUNCTIONS, POWERS AND ADMINISTRATION OF THE SERVICE

4-Composition of the Service. 5-Functions of Service. 6-Powers of the Service. 7-Director-General. 8-Functions and Powers of the Director-General. 9-Divisions of the Service and Directors. 10-Officers of the Service. 11-Functions and Powers of officers of the Service. 12-Oaths. 13-Certificate of identity and appointment. 14-Scheme of service. 15-Pension scheme and other benefits. 16-Disciplinary Code. 17-Code of Ethics. 18-Grievance Mechanism. 19-Limitation of rights of officers of Service and other persons.

PART III ? OFFENCES

20-Prohibition of certain conduct of officers of Service. 21-Desertion. 22-Surrender of Service property on dismissal. 23-Prohibition of false representations as to association with Service. 24-Offences in connection with officers of the Service. 25-Prohibition of disclosure of identity. 26-Prohibition of access to premises of the Service. 27-Prohibition of unauthorized access to information. 28-Obstruction of officers of the Service. 29-Prohibition of unauthorized disclosure of information. 30-Attempts, etc.

PART IV ? WARRANTS

31-Warrants for entry, search, seizure etc.

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PART V ? OVERSIGHTS

32-The National Security Council 33-The National Intelligence Council. 34-Complaints Commission. 35-Powers and functions of the Commission. 36-Proceedings of the Commission. 37-Funds of the Commission 38-Parliamentary Intelligence Oversight Committee.

PART VI ? MISCELLANEOUS PROVISIONS

39-Destruction of irrelevant records, etc. 40-Non-compellability of Director General and officers of the Service. 41-Role of Ministries and Departments in relation to national security. 42-General penalty. 43-Extraterritoral application of the Act 44-Annual report. 45-Regulations. 46-Transition and saving. 47-Repeal of No.11 of 1998.

FIRST SCHEDULE

OATH/AFFIRMATION OF ALLEGIANCE OATH/AFFIRMATION OF SECRECY SECOND SCHEDULE

OATH/AFFIRMATION OF SECRECY FOR MEMBERS OF PARLIAMENTARY INTELLIGENCE OVERSIGHT COMMITTEE

An Act of Parliament to give effect to the Constitution; to provide for the composition, functions, powers, control and administration of the National Intelligence Service; to provide for appointment of the Director General of the Service; to provide for the issuance of warrants authorising certain actions to be undertaken by the Service in the national interest; to provide for the establishment of the National Intelligence Council, the Complaints Commission and the Parliamentary Intelligence Oversight Committee and connected matters.

ENACTED by the Parliament of Kenya as follows:-

PART I - PRELIMINARY

Short title and 1. This Act may be cited as the National Intelligence Service Act, 2011 and shall commencemen come into operation upon publication in the Gazette.

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Interpretation. 2. (1) In this Act, unless the context otherwise requires acts of foreign interference means activities relating to the Republic that are carried on by or on behalf of or are directed or subsidized by or are undertaken in collaboration with a foreign power, being activities that: (a) are clandestine or deceptive and ; (i) are carried on for intelligence purposes; (ii) are carried on for the purpose of affecting economic, social, political or governmental process; or (iii) are otherwise detrimental to the national security interests of the Republic; (b) involve a threat to any person. agent of a foreign power includes any person who is or has been or is reasonably suspected of being or having been recruited or employed by a foreign power either directly or indirectly for the purpose of committing an act whether within or outside Kenya prejudicial to the safety or interests of the Republic, or who has or is reasonably suspected of having within or outside Kenya committed or attempted to commit such an act in the interests of a foreign power "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to national intelligence, or if no such Cabinet Secretary is appointed, the President; "classified information" means information of such a sensitive nature and value that the unauthorised publication or disclosure thereof would prejudice the protection or promotion of national security;

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"Commission" means the Complaints Commission established under section 34;

Committee means the Parliamentary Intelligence Oversight Committee established under section 38;

"Council" means the National Intelligence Council established under section 33;

counter-intelligence means information gathered and activities conducted to impede or neutralise the intentions and activities of foreign powers, to counter subversion, sabotage, espionage and other activities aimed at or against the people, institutions, installations, processes or resources of the Republic;

cruel, inhuman and degrading treatment or punishment means a deliberate and aggravated treatment or punishment not amounting to torture, inflicted by a person in authority or the agent of the person in authority against a person under his custody, causing suffering, gross humiliation or debasement to the person;

departmental intelligence" means information which relates to any power, duty or function concerning the security of Kenya which by or under any law has been entrusted to any Government Ministry, Department or Agency and which information may be required by that Department or Agency in the exercise of any such power or the performance of any such duty or function;

desertion'' means absenting oneself from duty without leave or just cause for a period exceeding twenty-one days;

Director means a director of any of the divisions of the Service established under section 9;

"Director-General" means the Director-General of the Service, appointed under section 7;

domestic intelligence means intelligence on any domestic threat or potential threat to national security as well as opportunities relevant to the protection and promotion of national security and national interests;

espionage includes covert means by which a foreign power or an agent of a foreign power directly or indirectly acquires or attempts to acquire classified information not entitled to acquire;

exceptional circumstance means an unusual situation or state of affairs requiring immediate action, the failure of which would occasion exceptionally grave danger, harm or prejudice to national security;

external intelligence means intelligence on any external threat or potential threat to national security, capabilities, intentions and activities of foreign powers and intelligence regarding opportunities relevant to the protection and promotion of national security and national interests;

extreme emergency means an unexpected situation or state of affairs requiring urgent action, the failure of which would occasion serious danger, harm or prejudice to national security;

foreign power means (a) a foreign government; (b) a foreign organization; (c) foreign person; or (d) an entity that is directed or controlled by a foreign government, foreign organization or foreign person;

4 government includes county government;

"intelligence" means information which has been collated and analyzed and which is relevant to a government's formulation or implementation of policy in relation to any internal or external threat or potential threat to national security as well as opportunities relevant to the protection and promotion of national security and national interests;

monitor means to intercept, listen to, copy or record using any device;

national interests include issues that are key to Kenya's survival in relation to political, economic, military and security elements of national power;

national security has the same meaning assigned to it by Article 238 of the Constitution;

National Security Council means the National Security Council established by Article 240 of the Constitution;

officer in relation to the Service means a person employed as an employee of the Service and includes a Director;

organised crime means an offence committed by a structured group of three or more persons existing for a period of time and acting in concert and includes human trafficking, money laundering and drug trafficking;

person includes natural and artificial person;

public officer means an officer, employee or member of a public body, including one that is unpaid, part-time or temporary;

republic has the same meaning assigned to it by Article 260 of the Constitution;

Public Service Commission means the Public Service Commission established by Article 233 of the Constitution.

sabotage means an act, falling short of a military operation or omission intended to cause physical damage or create conditions aimed at furthering or promoting subversive activities;

"security clearance" means an authorisation entitling a person to have access to classified information;

Salaries and Remuneration Commission means the Salaries and Remuneration Commission established by Article 230 of the Constitution.

security intelligence means information other than counter intelligence which relates to or may be relevant to the assessment of any internal or external threat or potential threat to national security and includes measures and strategies aimed at impeding or neutralizing such threat or potential threat;

"security vetting investigation" means a systematic procedure used to examine and appraise a person to determine his or her suitability, eligibility or security competence including the continued monitoring thereof;

Service" means the National Intelligence Service established by Article 242 of the Constitution;

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state office has the same meaning assigned to it by Article 260 of the Constitution;

"sensitive information" includes any information -

(a) which is likely to disclose the identity of, or provide details of, sources of information, other assistance or operational methods available to the Service;

(b) which relates to particular operations which have been, are being or are proposed to be undertaken by the Service in pursuance of any of its functions;

(c) which has been provided, by any Government, Department or Agency where that Government Ministry, Department or Agency does not consent to the disclosure of the information; or

(d) which has been provided, by an agency of a foreign government where that agency or government does not consent to the disclosure of the information;

subversion means an attempt by a person or group of persons to change, undermine or overthrow by unlawful means the constitution or constitutionally established system of government in the Republic;

terrorism means any act involving the use or threat of violence by a person or group of persons, which by reason of its nature and extent is calculated or intended to intimidate or coerce a civilian population or to influence the policy of a government by intimidation or coercion;

threat to the security of Kenya" means -

(a) any activity relating to espionage, sabotage, subversion, terrorism, organized crime, or intention of any such activity directed against, or detrimental to the integrity, sovereignty, economic well-being or other national interests of Kenya and includes any other activity performed in conjunction with any activity relating to espionage, sabotage, organized crime, terrorism or subversion;

(b) any activity directed at undermining, or directed at or intended to bring about the destruction or overthrow by unlawful means of the constitutionally established system of government in the Republic;

(c) any act or threat of violence or unlawful harm that is directed at or intended to achieve, bring about or promote any constitutional, political, industrial, social or economic objective or change in Kenya and includes any conspiracy, incitement or attempt to commit any such act or threat; and

(d) any actions or intentions of foreign powers within or outside Kenya that is detrimental to national security and is clandestine or deceptive or involve a threat to the well-being of the Republic and its citizens or any other person lawfully resident in Kenya;

but does not include any lawful advocacy, protest or dissent unless carried out in conjunction with any of the activities referred to in paragraphs (a) to (d);

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Application

torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes of:

(a) obtaining from the person or from a third person or a confession;

(b) punishing the person for an act which the person or a third person has committed or is suspected of having committed;

(c) intimidating or coercing the person or a third person; or

(d) for any reason based on discrimination of any kind

provided that torture does not include any pain or suffering from, inherent in or incidental to lawful sanctions.

vettable post means a State Office, post or position in the Government, Government Ministry, Department or Agency that is of strategic interest to the State or requiring the holder thereof to have, in the performance of his official duties, access to sensitive or classified information;

(2) Despite subsection (1), until after the first general elections under the Constitution, references in this Act to the expression Cabinet Secretary shall be construed to mean Minister.

3. Unless the context otherwise requires, the- provisions of this Act shall apply in respect of the Director-General and officers of the Service, whether working within or outside Kenya.

PART II ? COMPOSITION, FUNCTIONS, POWERS AND ADMINISTRATION OF THE SERVICE

Composition 4. (1) The Service shall comprise -

of the Service

(a) the Director-General appointed under section 7;

(b) Directors appointed under section 9; and

(c) such other officers of the Service appointed under section 10.

Act No. 11 of 1998

(2) All persons who were immediately before the commencement of this Act were members or employees the National Security Intelligence Service established under the National Security Intelligence Service Act shall upon commencement of this Act become members of the Service and shall be deemed to have been appointed in accordance with this Act.

(3) The Service shall be employed for the performance of the functions specified in the Constitution, this Act or any other written law.

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Functions Service

of 5. (1) Subject to subsection (2), the Service shall-

(a) be responsible for security intelligence and counter intelligence to enhance national security;

(b) be responsible for detecting and identifying any threat or potential threat to national security;

(c) advise the President and the Government of any threat or potential threat to national security;

(d) safeguard and promote national security, national interests, sovereignty and the economic wellbeing of the republic and its citizens within and outside Kenya;

(e) gather departmental intelligence at the request of any Government Ministry, Department or Agency and without delay, to evaluate and transmit as appropriate to that Ministry, Department or Agency such intelligence and any other intelligence at the disposal of the Service and which constitutes departmental intelligence;

(f) regulate, in co-operation with any Government Ministry, Department or Agency entrusted with any aspect of the maintenance of the security of Kenya, the flow of security intelligence and the co-ordination between the Service and that Ministry, Department or Agency of functions relating to such intelligence;

(g) carry out security vetting investigations for the security clearance of persons who hold or may hold vettable posts or persons seeking Kenyan citizenship, work permits and other documents of security interest;

(h) carry out protective and preventive security functions within government departments, agencies, institutions, facilities and diplomatic missions;

(i) safeguard the integrity of data, information and information systems and processes within Government Ministries, Departments or Agencies;

(j) support and aid law enforcement agencies in the detection and prevention of threats to national security;

(k) make recommendations to the President in connection with -

(i) policies concerning security intelligence; (ii) security intelligence priorities; (iii) security measures in Government Ministries, Departments or agencies; and

(l) subject to the provisions of any other written law, perform such other duties and functions as may, from time to time, be determined by the President to be in the national interest.

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