National Intelligence Service Act

Section 1. Short title Section This Act may be cited as the National Intelligence Service Act.

Section 2. Interpretation Section 2(1)(a) are carried on for intelligence purposes; Section 2(1)(a)(i) are carried on for intelligence purposes; Section 2(1)(a)(ii) are carried on for the purpose of affecting economic, social, political or governmental processes; or Section 2(1)(a)(iii) detrimental to national security; or Section 2(1)(b) involve a threat to any person; Section 2(1)(a) a foreign government; Section 2(1)(b) a foreign organization; Section 2(1)(c) a foreign person; or Section 2(1)(d) an entity Section 2(1)(a) any activity relating to espionage, sabotage, subversion, terrorism, organized crime, or intention to commit any such activity which is or may be 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; Section 2(1)(b) any activity directed at undermining, or directed at or intended to bring about the destruction or to overthrow by unlawful means of the constitutionally established system of government in the Republic; Section 2(1)(c) any act or threat...

Section 3. Guiding principles Section 3(1)(a) strive to achieve the highest standards of professionalism and discipline amongst its members; Section 3(1)(b) prevent corruption and promote and practice transparency and accountability; Section 3(1)(c) comply with the constitutional standards of human rights and fundamental freedoms; Section 3(1)(d) train its staff to the highest possible standards of competence and integrity and to respect rights and fundamental freedoms and dignity; and Section 3(1)(e) ensure that recruitment to the Service reflects the diversity of the Kenyan people in equitable proportions. Section 3(2) The powers and functions of the Service are to be exercised and performed only in the interests of national security, Kenya’s foreign relations or national economic well-being.

Section 4. Composition of the Service Section 4(1) The National Intelligence Service established under Article 242(1) of the Constitution shall be a disciplined civilian service. Section 4(2)(a) the Director-General appointed under section 7 ; Section 4(2)(b) the Directors appointed under section 15 ; and Section 4(2)(c) such other members of the Service appointed under section 16 . Section 4(3) The Service shall consist of such maximum number of members as shall be determined from time to time by the Council in consultation with the Director-General. Section 4(4) In appointing a person as the Director-General, the President and the National Assembly, shall observe the provisions of Article 73(2)(a) of the Constitution. Section 4(5) In appointing persons as members of the Service, the Director-General and the Council shall ensure that the composition of the Service meets the gender requirement under Article 27 of the Constitution and shall observe the principle of regional balance and ethnic diversity of the people of Kenya. Section 4(6) The Director-General shall formulate and adopt administrative measures and affirmative action programs to ensure the realization of Article 27 of...

Section 5. Functions of the Service Section 5(1)(a) gather, collect, analyse and transmit or share with the relevant State agencies, security intelligence and counter intelligence; Section 5(1)(b) detect and identify threats or potential threats to national security; Section 5(1)(c) advise the President and Government of any threat or potential threat to national security; Section 5(1)(d) safeguard and promote national security and national interests within and outside Kenya; Section 5(1)(e) gather, evaluate and transmit departmental intelligence at the request of any State department or organ, agency or public entity; Section 5(1)(f) regulate, in co-operation with any State department or agency, the flow of security intelligence between the Service and that State department or agency; Section 5(1)(g) for persons seeking to hold a vettable position; Section 5(1)(g)(i) for persons seeking to hold a vettable position; Section 5(1)(g)(ii) for persons seeking to be registered as a citizen of Kenya; Section 5(1)(g)(iii) for foreign institutions seeking documents or seeking to undertake any activity in the Republic which may have a bearing on national security; or Section 5(1)(g)(iv) as...

Section 6. Powers of the Service Section 6(1) The Service shall have all the powers necessary or expedient for the performance of its functions under the Constitution, this Act or any other written law. Section 6(2)(a) investigate, gather, collate, correlate, evaluate, interpret, disseminate and store information which is relevant in the performance of its functions, under this Act, whether within or outside Kenya; Section 6(2)(b) co-operate with or enter into arrangements with any person, body, organization or authority for the performance of its functions under this Act; Section 6(2)(c) monitor and record electromagnetic emissions, acoustic emissions and other emissions subject to section 42 ; and Section 6(2)(d) take steps and measures to safeguard and promote national interests. Section 6(3)(a) for the purpose of detecting and identifying any threat or potential threat to national security; Section 6(3)(b) for the purpose of safeguarding and promoting national security and national interests; or Section 6(3)(c) for the purpose of 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...

Section 7. Director-General Section 7(1) There shall be a Director-General of the Service who shall, with the approval of the National Assembly, be appointed by the President. Section 7(2) The President shall nominate a person for appointment as the Director-General and submit the name of the nominee to the National Assembly. Section 7(3)(a) consider the suitability of the nominee; Section 7(3)(b) either approve or reject the nominee for appointment; and Section 7(3)(c) the Speaker shall notify the President of the decision of the National Assembly. Section 7(4) If the National Assembly approves the nominee, the President shall, within seven days after receiving the notification to that effect, appoint the nominee as the Director-General. Section 7(5) If the National Assembly rejects a nominee submitted by the President, the National Assembly shall request the President to submit a new nominee and the provisions of this section shall apply with necessary modifications with respect to the new nominee. Section 7(6) If, after the expiry of a period of sixty days from the date of the nomination of a person for appointment as a Director-General under subsection (2), the National Assembl...

Section 8. Qualifications of the Director-General Section 8(1)(a) is a citizen of Kenya; Section 8(1)(b) holds a degree from a university recognized in Kenya; Section 8(1)(c) has knowledge and at least fifteen years experience in intelligence or national security; Section 8(1)(d) has served in a senior management position in the Service or public service for at least ten years; and Section 8(1)(e) meets the requirements of Chapter Six of the Constitution. Section 8(2)(a) is a member of Parliament, a member of a county assembly, a governor or a deputy governor; Section 8(2)(b) has, in the immediate preceding period of five years, served as a member of Parliament, a member of a county assembly, a governor, a deputy governor, a trade union official or held an office in a political party; Section 8(2)(c) holds dual citizenship; Section 8(2)(d) has been convicted of a criminal offence and has been sentenced to imprisonment for a term exceeding six months without an option of a fine; Section 8(2)(e) has previously been removed from office for contravening the provisions of the Constitution or any other written law; or Section 8(2)(f) is an undischarged bankrupt.

Section 9. Functions and powers of the Director-General Section 9(1)(a) be responsible for the overall, management and administration of the Service; Section 9(1)(b) be responsible for the overall operational control of the Service; Section 9(1)(c) be the principal advisor to the President and Government on national security based on security intelligence and counter intelligence to enhance national security; Section 9(1)(d) report to the President, the National Security Council and the Cabinet Secretary on threats and potential threats to national security and national interests as is appropriate; Section 9(1)(e) take all necessary steps to ensure that the actions of the Service are limited to what is necessary for the proper performance of its functions under the Constitution, this Act or any other written law and that no information is gathered or disclosed by the Service except in so far as may be necessary for the proper performance of its functions; Section 9(1)(f) ensure that the Service is not, in the performance of its functions, influenced by considerations not relevant to such functions and that no act is performed that could give rise to any reasonable suspicion that th...

Section 10.[Repealed by ActNo. 19 of 2014, s. 53.]

Section 11. Vacancy Section 11(1)(a) dies; Section 11(1)(b) resigns by notice, in writing, to the President; or Section 11(1)(c) is removed by the President. Section 11(2) Where the Director-General resigns from office, he or she shall cease to hold office one month after receipt by the President, of the written notice of resignation. [Act No. 19 of 2014 , s. 54.]

Section 12. Temporary incapacity Section 12(1) Where the Director-General is unable to perform the functions of the office as a result of temporary incapacity or any other reason, the President shall appoint one of the Directors to act in place of the Director-General. Section 12(2) A person appointed under subsection (1) shall not act in that position for more than six months. Section 12(3) In this section, temporary incapacity means any inability to carry out duties under the Act or other written law due to an illness or other incapacity lasting continuously for a period of not less than three months.

Section 13. Remuneration and other benefits Section The remuneration and other benefits of the Director-General shall be set and regularly reviewed by the Salaries and Remuneration Commission.

Section 14. Divisions of the Service Section an internal intelligence division which shall be responsible for gathering domestic intelligence;

Section 15. Directors Section 15(1) A division of the Service shall be headed by a Director appointed by the Director-General in consultation with the Council. Section 15(2)(a) is a citizen of Kenya; Section 15(2)(b) holds a degree from a university recognized in Kenya; Section 15(2)(c) has knowledge and at least seven years experience in intelligence or national security; Section 15(2)(d) has served in a senior management position in the Service or government for at least five years; and Section 15(2)(e) meets the requirements of Chapter Six of the Constitution. Section 15(3)(a) is a member of Parliament, a member of a county assembly, a governor or a deputy governor; Section 15(3)(b) has, in the immediate preceding period of five years, served as a member of Parliament, member of a county assembly, a governor or a deputy governor, a trade union official or held office in a political party; Section 15(3)(c) holds dual citizenship; Section 15(3)(d) has been convicted of a criminal offence and has been sentenced to imprisonment for a term exceeding six months without an option of a fine; or Section 15(3)(e) has previously been removed from office for contravening the provisions of t...

Section 16. Other members of the Service Section 16(1) The Council shall appoint such number of members of the Service as may be necessary for the proper and efficient discharge of the functions of the Service. Section 16(2) The Director-General may, in consultation with the Council, request for a public officer to be seconded or temporarily attached to the Service from either level of government for a specific period of time and on such terms and conditions as may be agreed upon between the Director-General and the seconding body. Section 16(3) For the purposes of this Act, a public officer who is seconded to the Service under subsection (2) shall be regarded as a member of the Service and be subject only to the operational control and direction of the Director-General.

Section 17. Security screening of members of the Service Section 17(1)(a) information regarding that person has been gathered in the prescribed manner, in a security screening investigation by the Service; and Section 17(1)(b) the Service, after evaluating the gathered information, is of the reasonable opinion that such a person may be appointed as a member without the possibility of such a person being a security risk or acting in any way prejudicial to national security. Section 17(2)(a) criminal records; Section 17(2)(b) financial records; Section 17(2)(c) personal information; and Section 17(2)(d) any other information which is relevant to that determination of the security clearance of the person. Section 17(3)(a) polygraph testing or any other method of testing; Section 17(3)(b) the level of security clearance; and Section 17(3)(c) the criteria for evaluating the security competency. Section 17(4) The Director-General may, after evaluating the information gathered under this section, issue, degrade, withdraw or refuse to grant security clearance.

Section 18. Functions and powers of members of the Service Section 18(1)(a) perform the functions and duties assigned to the member by or under this Act or any other written law; and Section 18(1)(b) obey lawful orders and directions which he or she may from time receive from a person having the authority to give such directions. Section 18(2) A member of the Service shall for purposes of this Act be considered to be always on duty when required to act as such, and shall perform the duties and exercise the powers granted to him or her under this Act or any other written law at any place where he or she may be deployed. Section 18(3) A member of the Service shall have all the powers necessary for the performance of the functions of the Service under this Act, and may exercise such powers as are conferred on him or her by or under this Act or any other written law.

Section 19. Oaths and affirmations Section 19(1)(a) in the case of the Director-General, before the President; and Section 19(1)(b) in the case of every other member of the Service, before the Director-General. Section 19(2) The oath shall bind the Director-General and every member of the Service during and after expiry or termination of employment or engagement with the Service.

Section 20. Certificate of appointment Section 20(1) The Director-General shall cause to be issued to a member of the Service on appointment, a certificate of appointment. Section 20(2) The certificate of appointment shall be in such form as the Director-General may prescribe by notice in the Gazette . Section 20(3) A member of the Service shall produce the certificate of appointment issued under subsection (1) on being requested to do so by any person in relation to whom that officer is exercising or is about to exercise a power conferred by this Act. Section 20(4) A member of the Service may, where necessary for the performance of his or her functions under this Act and with approval of the Director-General, carry and use an official firearm.

Section 21. Scheme of service Section appointments, confirmation of appointments, promotions, resignations, retirements and termination of appointment;

Section 22. Pension scheme and other benefits Section a pension scheme for the members of the Service; and

Section 23. Disciplinary Code Section 23(1)(a) prescribe disciplinary offences; Section 23(1)(b) provide for the investigation, hearing and determination of disciplinary cases and the hearing of any appeals therefrom; and Section 23(1)(c) provide for the delegation by the Director-General to any Director or a member of the Service of such disciplinary powers as he or she may consider necessary. Section 23(2)(a) dismissal from the Service; Section 23(2)(b) retirement in public interest; Section 23(2)(c) reduction in rank or grade as the case may be; Section 23(2)(d) reprimand; Section 23(2)(e) admonition; Section 23(2)(f) stoppage of salary increments; Section 23(2)(g) fines; Section 23(2)(h) recovery of the cost or part thereof in respect of any loss or damage to the property of the Service caused by the default or negligence of any member of the Service subject to disciplinary proceedings where such recovery has not been effected through any other lawful Government procedure; and Section 23(2)(i) recovery of any loss of public funds used contrary to the law from a member of the Service who approves the use of the public funds, whether the person remains the holder of the office or...

Section 24. Code of Conduct and Ethics Section 24(1)(a) professional conduct; Section 24(1)(b) political neutrality; Section 24(1)(c) conflict of interest; Section 24(1)(d) conduct of private affairs; Section 24(1)(e) dealings with foreigners; and Section 24(1)(f) submission of declarations. Section 24(2) For the avoidance of any doubt, members of the Service are bound by the Public Officers Ethics Act (Cap. 183) or any other written law regulating matters of ethics and integrity issues for public officers.

Section 25. Information to members of the Service Section The Director-General shall ensure that the code of conduct and ethics, disciplinary code and other rules, regulations, guidelines or information relating to and affecting members of the Service are made available to the members of the Service.

Section 26. Mechanism for determination of grievances Section The Director-General shall establish procedures for the consideration and adjudication of grievances in relation to members of the Service.

Section 6A. Stoppage and detention Section witnesses engaging in a serious offence; or

Section 27. Effective civilian authority Section In order to give effect to the requirement under Article 239(5) of the Constitution, effective civilian authority shall be exercised through the Cabinet Secretary.

Section 28. Functions of the Cabinet Secretary Section ensure that there are satisfactory arrangements in place for the carrying out of policy directions;

Section 29. Functions of the National Security Council Section exercise supervisory control over the Service;

Section 30. Compliance with Article 59(2)(d) of the Constitution Section The Service shall ensure compliance with Article 59(2)(d) of the Constitution.

Section 31. Rights and fundamental freedoms Section 31(1) A person to whom this Act applies shall enjoy all rights and fundamental freedoms enshrined in the Constitution unless the rights or fundamental freedoms have been limited to the extent specified in this Act or any other written law. Section 31(2) Notwithstanding subsection (1), a limitation under this Act shall not derogate from the rights and fundamental freedom in Article 25 of the Constitution.

Section 32. Conditions for limitation of rights and fundamental freedoms Section 32(1) Notwithstanding section 31 , the purpose of this Part is to limit or restrict the rights and fundamental freedoms as contemplated by Article 24 of the Constitution. Section 32(2)(a) the protection, maintenance and promotion of national security; Section 32(2)(b) the protection of classified information; Section 32(2)(c) the security and safety of members of the Service; Section 32(2)(d) good order and discipline in the Service; and Section 32(2)(e) that the enjoyment of the rights and fundamental freedoms by a person do not prejudice the rights and fundamental freedoms of others. Section 32(3)(a) shall satisfy the criteria set out in Article 24(1) of the Constitution; and Section 32(3)(b) ensure the protection, maintenance of and promotion of national security, public safety, public order and protection of the rights and freedoms of others; Section 32(3)(b)(i) ensure the protection, maintenance of and promotion of national security, public safety, public order and protection of the rights and freedoms of others; Section 32(3)(b)(ii) be necessary to achieve the mandate of the Service; Section 32(3...

Section 33. Limitation of freedom of expression Section 33(1) The freedom of expression set out under Article 33 of the Constitution may be limited in respect of a member of the Service under the conditions set out in subsection (2). Section 33(2)(a) in the interest of national security, public safety, public order, public morality or public health; Section 33(2)(b) for the purpose of protecting the integrity of Service operations; Section 33(2)(c) for the purpose of protecting the reputation, rights and freedoms of the members or private persons concerned in legal proceedings; Section 33(2)(d) for the purpose of preventing the disclosure of information received in confidence; Section 33(2)(e) for the purpose of regulating the technical administration or the technical operation of telecommunication, wireless broadcasting, communication, internet, satellite communication or television; or Section 33(2)(f) for the security and protection of information within the Service.

Section 34. Limitation of political rights Section 34(1)(a) form, join, participate in the activities, campaign for a political party or political cause or recruit members for a political party; or Section 34(1)(b) serve as a member of Parliament, the Senate, a county assembly or any other political body. Section 34(2) The provisions of subsection (1) shall not apply to the members’ right to register as a voter and to vote in an election, by-election or a referendum.

Section 35. Limitation to freedom of movement and residence Section by restricting the right of the member to leave Kenya in the interest of national security;

Section 36. Limitation to the right to privacy Section 36(1) The right to privacy set out in Article 31 of the Constitution, may be limited in respect of a person who is subject to investigation by the Service or suspected to have committed an offence to the extent that subject to section 42 , the privacy of a person’s communications may be investigated, monitored or otherwise interfered with. Section 36(2) The Service shall, prior to taking any action under this section, obtain a warrant under Part V. [Act No. 19 of 2014 , s. 55.]

Section 37. Limitation of the right to access to information Section 37(1) The right of access to information set out in Article 35(1) and (3) of the Constitution may be limited in respect of classified information or information under the custody of the Service under the circumstances set out under subsection (2). Section 37(2)(a) comply with a request to furnish a person with classified information; Section 37(2)(b) disclose or publicize information relating to sources of information, intelligence collection methods and covert operations of the Service; or Section 37(2)(c) disclose or publicize information, the disclosure or publication of which would be prejudicial to national security. Section 37(3) The Cabinet Secretary may by regulations determine the categories of security classification. Section 37(4)(a) "top secret" which means information whose unauthorized disclosure would cause exceptionally grave damage to the interests of the State; Section 37(4)(b) "secret" which means information whose unauthorized disclosure would cause serious injury to the interests of the State; Section 37(4)(c) "confidential" which means information whose unauthorized disclosure would be prejud...

Section 38. Limitation of the right to freedom of association Section 38(1) The freedom of association set out in Article 36 of the Constitution, is limited by preventing a member of the Service from joining or participating in the activities of an association. Section 38(2) Notwithstanding subsection (1), a member of the Service may join or participate in the activities of a professional association.

Section 39. Limitation of the right to assembly, demonstrate, picket and petition Section The right to assemble, demonstrate, picket and petition public authorities set out in Article 37 of the Constitution is limited by prohibiting, the officers from assembling, demonstrating, picketing or petitioning public authorities except for the purposes of maintaining good order and discipline in the Service.

Section 40. Limitation of the right to labour relations Section The right to fair labour practices set out in Article 41 of the Constitution, is limited by prohibiting a member of the Service from forming, joining, agitating or participating in the activities of trade unions or going on strike to extent necessary for maintaining good order and discipline in the Service.

Section 41. Limitations to economic and social rights Section The economic and social rights set out in Article 43 of the Constitution, may be limited in respect of members of the Service to the extent necessary for intelligence training and operation.

Section 72. Protection of classified information, records, etc. Section Subject to Article 35 of the Constitution and any other written law, the Cabinet Secretary shall, in consultation with the Director-General, by regulations prescribe procedures for the classification, declassification, protection, and destruction of classified information and other records held by the Service.

Section 73. Protection of Director-General and members of Service for acts done in good faith Section Proceedings shall not lie against the Director-General or any member of the Service in respect of anything done or omitted to be done in good faith in the performance of the functions of the Service or the exercise of the powers of the Service under this Act.

Section 74. Duty to co-operate Section 74(1) It shall be the duty of every person, State organ, State department or agency or public entity to afford the Service the co-operation and assistance necessary to enable it perform its functions under the Constitution, this Act or any other written law. Section 74(2) It shall be the duty of every State organ, State department, State agency or public entity that is in possession of national security intelligence or other intelligence related information which may be of value to the Service for the purposes of performing its functions under this Act to transmit that intelligence and information to the Service without delay. Section 74(3)(a) that receives intelligence from the Service to act on or otherwise utilize the intelligence; and Section 74(3)(b) to provide information requested for by the Service:

Section 75. General Penalty Section A person who is convicted of an offence under this Act for which no penalty is expressly provided shall be liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both.

Section 76. Extraterritorial application of the Act Section 76(1) Any act, omission or other conduct constituting an offence under this Act, shall constitute an offence even if the act, omission or conduct takes place outside Kenya. Section 76(2) The provisions of this Act shall apply to the Director-General and members of the Service within and outside Kenya.

Section 77. Annual report Section The Director-General shall, within three months after the end of each calendar year, furnish the President, the Cabinet Secretary and the National Security Council with a report of the activities of the Service during that year.

Section 78. Regulations generally Section 78(1) The Cabinet Secretary may, in consultation with the Council make regulations generally prescribing anything required by this Act to be prescribed or generally for the better carrying out of the provisions of this Act. Section 78(2) Regulations made under subsection (1) relating to members of the Service shall not be published in the Gazette , but shall be notified to the members of the Service to whom they apply in such manner as the Cabinet Secretary may in consultation with the Director-General determine.

Section 79. Regulations by the Council Section 79(1)(a) the terms and conditions of service of the members of the Service subject to section 21 and 23 ; Section 79(1)(b) the appointment, seniority in rank or grade, posting, transfer and promotion of members of the Service subject to section 21 and 23 ; Section 79(1)(c) the distribution, organization and duties of the Service; Section 79(1)(d) operational matters of the Service; Section 79(1)(e) personal and document security; Section 79(1)(f) protective and physical security; Section 79(1)(g) the control, issuance, storage and use of firearms and ammunition in the Service; Section 79(1)(h) training of members of the Service; Section 79(1)(i) the discipline in the Service subject to section 23 ; Section 79(1)(j) the determination of grievances in the Service; Section 79(1)(k) the administration and management of the funds and assets of the Service; and Section 79(1)(l) affirmative action within the Service. Section 79(2) Regulations made under this section shall not be published in the Gazette but shall be notified to the members of the Service to whom they apply in such manner as the Director-General shall determine.