Article 242 of the Kenyan Constitution establishes the National Intelligence Service in Kenya. The National Intelligence Service (NIS) is an intelligence agency primarily responsible for Security Intelligence and Counter-Intelligence, besides performing other functions prescribed by national legislation.
The National Intelligence Service Act stipulates more provisions relating to the National Intelligence Service, including its organisation and administration and functions.
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Section 4 of the National Intelligence Service Act stipulates the composition of the service. The National Intelligence Service should be a disciplined civilian service.
The National Intelligence Service should consist of—
- the Director-General;
- the Directors (appointed under section 15 of the Act); and
- such other members of the Service (appointed under section 16 of the Act).
The Director-General appoints the directors under Section 15 to head the divisions of the Service in consultation with the National Intelligence Service Council.
The National Intelligence Service appoints the other members (under Section 16) for the proper and efficient discharge of the functions of the National Intelligence Service. These officers may include public officers seconded from either the national or county governments for a period of time.
The Service should consist of such maximum number of members as is determined from time to time by the National Security Council in consultation with the Director-General.
Section 14 of the National Intelligence Service Act stipulates the National Intelligence Service should have the following division—
- an internal intelligence division which is responsible for gathering domestic intelligence;
- an external intelligence division which is responsible for gathering foreign intelligence;
- a counter-intelligence division which is responsible for gathering and performing counterintelligence; and
- such other divisions of the National Intelligence Service as may be necessary for the proper and efficient performance of the functions of the National Intelligence Service under the National Intelligence Service Act.
Section 5 of the National Intelligence Service Act stipulates the functions of the National Intelligence Service in Kenya (NIS). The National Intelligence Service is responsible for security intelligence and counter-intelligence to enhance national security in accordance with the Constitution and should—
- gather, collect, analyse and transmit or share with the relevant State agencies, security intelligence and counter-intelligence;
- detect and identify threats or potential threats to national security;
- advise the President and Government of any threat or potential threat to national security;
- safeguard and promote national security and national interests within and outside Kenya;
- gather, evaluate and transmit departmental intelligence at the request of any State department or organ, agency or public entity;
- regulate, in co-operation with any state department or agency, the flow of security intelligence between the Service and that State department or agency;
- undertake to provide a confidential security report —
- for persons seeking to hold a vettable position;
- for persons seeking to be registered as a citizen of Kenya;
- for foreign institutions seeking documents or seeking to undertake any activity in the Republic which may have a bearing on national security, or
- as may be required under any written law;
- carry out protective and preventive security functions within State departments, agencies, facilities and diplomatic missions;
- safeguard information systems and processes within State departments or agencies;
- support and aid law enforcement agencies in detecting and preventing serious crimes and other threats to national security;
- commission research relevant to the protection and promotion of national security;
- make recommendations to the National Security Council on policies concerning security intelligence;
- make recommendations to the President, National Security Council and the Cabinet Secretary ( responsible for matters relating to national intelligence) on policies concerning security measures which need to be taken by a State department or agency;
- obtain, in accordance with the Constitution, the NIS Act or any other written law, intelligence about the activities of foreign interference and capabilities, intentions or activities of people or organizations outside Kenya;
- liaise with intelligence or security services, agencies or other authorities in other countries;
- co-operate with and assist other national security organs or agencies in the exercise of their powers and discharge of their functions;
- provide material support, advice and assistance to State offices, State departments and public entities on matters relating to the security and integrity of the information that is processed, stored or communicated by electronic or similar means;
- to advise county governments on appropriate security and intelligence matters; and
- subject to the provisions of the Constitution and 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.
The functions above should not be construed as—
- depriving any person or authority any power, duty or function conferred upon that person or authority under the Constitution or any other written law; or
- limiting the performance of an intelligence-related function by a State organ, department or agency.
Unless otherwise provided for under the National Intelligence Service Act, the National Intelligence Service should not —
- carry out police functions;
- undertake paramilitary activities;
- commit an act of violence against a person; or
- undertake any activity for the purpose of furthering the interests of a political party or political organisation whether within or outside Kenya.
However, this does not prevent—
- the provision of firearms or training in the use of firearms in accordance with the First Schedule of the NIS Act; or
- the Service from obtaining intelligence and communicating any such intelligence that is relevant to serious crime to the appropriate law enforcement authorities.
In the performance of its functions and exercise of its powers, the National Intelligence Service (NIS) should not—
- act in a partisan manner;
- further the interest of any political party or cause; or
- prejudice a political interest or political cause that is legitimate under the Constitution.
The powers of the National Intelligence Service are to—
- investigate, gather, collate, correlate, evaluate, interpret, disseminate and store information which relevant in the performance of its functions under the NIS Act, whether within or outside Kenya;
- co-operate with or enter into arrangements with any person, body, organization or authority for the performance of its functions;
- monitor and record electromagnetic emissions, acoustic emissions and other emissions (subject to section 42 of the NIS Act);
- take steps and measures to safeguard and promote national interests.
The National Intelligence Service (NIS) may excise the powers above for the purpose of—
- detecting and identifying any threat or potential threat to national security;
- safeguarding and promoting national security and national interests; or
- ensuring the enjoyment of the rights and fundamental freedoms by an individual in so far as they do not prejudice the rights and fundamental freedoms of others.
For more about the National Intelligence Service, see the National Intelligence Service Act.