By Mzalendo Contributor – Moreen Majiwa
If anyone thought there was going to be a change in the way the country’s intelligence service is run in the new dispensation they should think again. Yes, there are new and progressive provisions in the National Intelligence Service Bill 2011 e.g. the requirement that the director general meet the leadership and integrity standards set out in Chapter 6 of the constitution, and that the appointment of the director general be subject to parliamentary approval.
However, despite these provisions there are several ways in which the bill is retrogressive. First in its development, unlike other bills the National Intelligence Service Bill 2011 did not go through a process of Cabinet approval. The bill originated from the National Security Intelligence Service (NSIS) and went straight to the Constitution Implementation Commission (CIC), by-passing the Cabinet and scrutiny by that body. In fact, the Assistant Internal Security Minister Orwa Ojode recently stated that his Ministry, the Ministry of Internal Security, had not even received the bill. He stated however that the Cabinet could not interfere with matters of defence and security. It seems like a bit of a paradox that the Ministry of Internal Security “cannot interfere with matters of defence and security.” And while NSIS is probably best placed to draft a bill on intelligence and security services what happened to consultative processes required under the new constitution?
The second major issue with the bill is oversight of the NSIS, who will provide it and how. The Bill proposes that a “Parliamentary Intelligence Oversight Committee consisting of Members of the National Assembly” provide oversight. The committee is intended to exercise oversight over the administration, expenditure and policy of the intelligence services. So far so good, except for the fact that the members of the committee will be vetted chosen by the very service for which they are supposed to provide oversight. The Bill also explicitly provides that “the Committee shall conduct its functions within a ring of secrecy” and that “no member of the Committee may disclose any information or document gained by him in the performance of his functions.” There’s no denying there is need for secrecy in the intelligence services, but in administrative and policy issues? Furthermore, what is the point of an oversight body if its “functions are conducted in a ring of secrecy” how will one tell whether they are indeed performing their oversight role or not?
Then there is the issue of the civil liberties, particularly freedom of speech, access to information, freedom of association, and the right to privacy and the bill has provisions lead to infringement on these rights. For instance, the Bill allows the NSIS to obtain “any information, material, record, document or thing and for that purpose 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, document or thing” the bill also allows the service to “monitor electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain any information derived from or related to such emissions, equipment or encrypted material’ i.e. mobile phones and Internet.” It can do so without warrant in “extreme emergency or existence of exceptional circumstances” and for reasons of national security. Of course the definitions for extreme emergency, exceptional circumstance and national are adequately vague that they may cover any series of circumstances. I’m not saying that the NSIS will misuse the powers and privileges accorded to it in the NSIS Bill. However given the history of the country’s intelligence services it is a bit of a leap of faith to think that such powers will never be abused.