Opposition leader Raila Odinga has opposed sections of a bill proposed for debate in the House which among others, if adopted will make changes to the National Security Council (NSC).
Leader of Majority in the House Kimani Ichungwah had on November 24, 2023, published The National Government Administration Laws Amendment Bill 2023.
This is a miscellaneous statute amendment Bill and seeks to amend several laws regarding national administration.
One of the Acts the bill seeks to amend is the National Security Council Act.
Section 7 of the amendment bill provides that there is established the office of the National Security Advisor, shall be an office in the public service.
It says the President shall nominate the National Security Advisor on the recommendation of the Public Service Commission.
“The National Security Advisor shall be appointed by the President with the approval of the National Assembly.
The National Security Advisor shall be the Secretary to the Council,” says part of the Bill.
Raila said the amendment creates a new position within the national security infrastructure called The National Security Advisor and makes the holder of that position the Secretary to the National Security Council.
This amendment is unconstitutional and untenable, he added.
He said the Constitution of Kenya has a full chapter on National Security which is Chapter 14.
“It lays out the principles of National Security and provides, in Article 239, which shall be the national security organs.
These are the Kenya Defence Forces, the National Intelligence Service, and the National Police Service.”
Besides that, the Constitution provides that there will be a Ministry of Internal security and therefore a Cabinet Secretary and a Principal Secretary thereof, plus a Ministry of Defence and thus also Cabinet Secretary and a Principal Secretary thereof, he added.
He added the new office of National Security Advisor does not fit into this structure and its creation is therefore an attempt by Kenya Kwanza to create a new national security organ outside the architecture of the Constitution.
“Article 3(2) of the Constitution provides that any attempt to establish a government otherwise than in compliance with the Constitution is unlawful.”
Raila added Article 240 of the Constitution creates the National Security Council and provides for its membership.
“The Constitution says that the Secretary to the National Security Council shall be appointed by the members of the Council.”
“Parliament has no power unless through a Constitutional amendment to alter this mandate.
Parliament cannot appoint any person or any office to this position.
That onus is entrusted to the Council by the Constitution,” he added.
Raila said the net effect of the amendment bill providing for the Secretary of the Council is that the President will have usurped the powers of the Council and it will not matter what opinion the persons entrusted with our national security have.
“Their Secretary will always be determined by the President. The membership of the National Security Council is not cavalier.”
“It comprises of the senior most State Officers who are entrusted with the most solemn of duties; to oversight all national security organs,” he said.
He added the obligation to appoint a Secretary to the council can therefore not be taken as a routine duty.
“It must involve security concerns and therefore was a matter left by the Constitution as better handled by the Council.”
“The duties of this new office are not provided and it is not stated what their role is in the organization and administration of national security.
The Constitution has already provided how national security is to be organized and administered and Kenya Kwanza seems to think that this was not sufficient,” he said.
He added they don’t see what security advice there still is to give after the defense forces, intelligence service, and the police have spoken, and thereafter policies are laid out by the respective parent ministries.
“We can therefore foresee the occupant interfering with the work of the defense forces, the intelligence service, and the police.”
“This is clearly an attempt to undermine the Constitution of Kenya. We can also foresee the occupant acting as a gatekeeper between the President and the other heads of the national security organs,” he said.
He added the occupant of this office is just a personal aide to the President with no statutory defined roles, no reporting structure, and no alignment to the bureaucracy.
“They will in effect be acting as the prefects of all national security heads. Kenya Kwanza must drop this interference with the constitutional architecture with regard to our national security.”
He added in light of the attempts elsewhere to establish a dictatorship in Kenya, Azimio will fight this latest maneuver to take total control of the national security machinery.
The bill proposes the introduction of a new sub-committee under the NSC comprising of nine members including the Head of Public Service as the chairperson.
Other members include the Chief of Defence Forces, the Director General of the National Intelligence Service (NIS), the Inspector General of Police Service, the Solicitor General, four Principal Secretaries (National Treasury, Defence, Foreign Affairs, and Internal Security), and any person with necessary skills and knowledge as prescribed by the Council.
Some of the proposed committee’s roles include recommending policies and programs related to national security to the council, overseeing the implementation of the council’s decisions, and monitoring and giving warnings on threats to Kenya’s national interests.
Other roles include preparing reports and briefings on national security interests and performing other functions as prescribed by the Council.
