Senators have accused the government of sabotaging appointment of a civilian board to oversee the excesses of the National Intelligence Service (NIS) amid rising cases of state-sponsored abductions and extrajudicial killings.
The latest development follows complaints from the Public Service Commission (PSC) over alleged interference in the push to recruit members of the Intelligence Service Complaints Board.
Raising the alarm, Kirinyaga Senator James Murango questioned why the Ministry of Interior and National Administration continues to frustrate the appointment of members of the board in light of increased cases of extrajudicial killings and abductions linked to the NIS.
The civilian spy agency board is similar to the Independent Policing Oversight Authority (Ipoa) but has not been operationalised more than a decade since the law established the board.
Senator Murango accused the national government of dragging its feet over operationalising the board despite a 2020 court order directing the same within 180 days.
The lawmaker said Section 66 of the National Intelligence Service Act, 2012, is clear on the constitution of the board with the Interior Cabinet secretary tasked with ensuring the entity is operational.
Kirinyaga Senator James Murango.
Last December, the PSC re-advertised (the third time) vacancies to fill the position of board chairperson and four members with an application deadline of December 30, 2024.
But four months later, there has been no progress despite the High Court ordering the State to make the appointments.
In 2020, the High Court ordered the State to appoint the board’s five members. This was after the human rights lobby Katiba Institute went to court on the matter. The petitioner argued that the provision had not been properly implemented as required by the constitution.
The petition argued that citizens have limited recourse whenever their rights are violated by the intelligence service, adding that failure to operationalise the board comprises the rights of citizens to fair administrative action against wrongful actions of the director general and the members of the NIS.
“The NIS is not above the law and they should be answerable to what they do. If people have complaints like abductions, where will they take their complaints to if the Board is not being put in place?” posed Mr Murango.
“Had the Board been in place, Justin Muturi would have lodged his complaints with it after his son was allegedly abducted by the NIS,” he added.
NIS Director-General Noordin Haji while appearing for vetting before Parliament in 2023 assured MPs that the agency would take steps to operate more transparently by having the board in place.
National Intelligence Service Director-General Noordin Haji.
“I will ensure that NIS observes the Constitution and the rule of law. This board will be one way of dealing with complaints against officers adequately,” Mr Haji told the committee.
The board’s main work is to inquire and receive complaints from aggrieved parties on the operations of the NIS director-general or any other member of the service.
Violation of liberties
In the past, there have been complaints against the government’s surveillance of citizens as a violation of civil liberties among other accusations.
However, the accusations have been heightened during the deadly Gen Z protests where the State was accused of rampant abductions, enforced disappearances and extrajudicial killings.
Section 66 of the National Intelligence Service Act, 2012 states that there is established a Board to be known as the Intelligence Service Complaints Board which shall consist of members, appointed by the Cabinet Secretary on the recommendation of the PSC.
They include a chairperson who shall be a person who qualifies to be a judge of the High Court and four other members of whom one shall be a person nominated by the Kenya National Commission on Human Rights; another an advocate of not less than seven years standing; one shall be a retired senior intelligence officer; and the other a person who has at least seven years of experience in public service.
“Interior CS Kipchumba Murkomen should clarify why he has failed to appoint members of the Intelligence Service Complaints Board, in clear contravention of the Constitution and Section 66 of the National Intelligence Service Act, 2012,” said Senator Murango.
“What are the timelines within which the fully constituted Board is expected to be in place in compliance with the court ruling, the Act of Parliament and the Constitution?”
The senators were supposed to grill CS Murkomen, who was set to appear before the Senate on Wednesday, but he failed to appear before the House.
There has been a long-running push and pull in having the board in place, with PSC only initiating the recruitment after the High Court in 2020 ordered the State to make the appointments.
No progress
But efforts to recruit the team have always stalled with PSC ending up placing fresh calls for application, with no much progress from the previous exercise.
The commission had in the previous re-advertisement given December 5, 2023 as the deadline for application. But there was no communication on the process since then until the current re-advertisement.
There have been claims that the process was deliberately being frustrated by those in the system so that they can continue “influencing NIS operations.”
The board was enacted by the National Intelligence Service Act (NISA), 2012 but for more than 12 years, successive administrations have failed to establish it.
Kisumu Senator Tom Ojienda wanted CS Murkomen to explain the reasons behind the Gen Z protests, detailing the arrests made, any charges filed and the current status of the cases.
“Could the minister provide a detailed account of civilian deaths, injuries, property destruction and vandalism/looting during the GenZ-led demonstrations in June, July and August 2024?” he posed.
Makueni Senator Dan Maanzo wanted to know measures the government is implementing to address and reduce the increasing cases of abductions across the country as well as provide data on the number of individuals reported missing, indicating those that have been found (alive or dead), and the number still unaccounted for.
“Is the Government conducting investigations to establish who is involved in these abductions and, if so, have any individuals or groups been held accountable?” he posed.
