A Critique of the National Security Bill (2011)
THE NATIONAL SECURITY COUNCIL BILL, 2011 is a Bill for An ACT of Parliament to give effect to the Constitution; to provide for the functions of the National Security Council; to provide for the appointment of the Secretary to the Council; to provide for the establishment and functions of the County Security Committees; and for connected purposes. The Bill's objects are in the Nation's interest, but nevertheless concerns pertaining to its provisions and drafting cannot escape from being raised.
The fourth schedule of the Constitution distributes various functions between the national government and the county government. National defense and the use of National Defence Service are a listed amongst the functions of the National Government. Clause 8 of the National Security Bill establishes a County defense Committee that is mandated to manage and deliver various security-related functions at the county level. Isn't National Security a preserve of the National Government? Isn't this going to create a clash between the two governments in performing/ the delivery of this mandate as both governments are distinct and self-regulating?
Why has the Governor been omitted from the membership of the County Security Committee?
The composition of the committees created under the Bill should be in tandem with the principles reflected in Article 10 of the Constitution. In appointing the committee members, the persons making up/ comprising the committees should reflect ethnic and gender parity.
Clause 13 expressly curtails the right to access information/ limits the right to access information to the extent set out in the Bill if such disclosure may be injurious to the country's security and if the information is classified. Article 35(1) of the Constitution guarantees every citizen's right to access information. Article 35(3) further provides that the State shall publish and publicize any important information affecting the nation. An obligation to avail such information thus arises on the part of the State. Therefore, everyone has the right to access to information held by the state and this includes the right to seek, receive, re-use and impart information held by or on behalf of the government and other statutory agencies. A clear line should thus be drawn to ascertain on what amounts to classified information that could pose a threat to the national security in order to ensure that the right to access information is not curtailed and that a conflict of law does not arise between the Constitution and the Bill.
Economic security also falls under the tenets of national security; national security is not just restricted to military might. As such, national security should not be strictly restricted to matters of defense in their entirety but also to other issues which may pose a threat to our nation's well being; such as economic competition from other organizations or corporations and environmental issues. Food security as well as infrastructural developments should also not be overlooked.
Lastly, the Bill should ensure that its objects strive to uphold the principles of National Security as reflected under Article 238(2) of the Constitution which states:
The national security of Kenya shall be promoted and guaranteed in accordance with the following principles––
- national security is subject to the authority of this Constitution and Parliament;
- national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
- in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya;
- recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.
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