The Constitution has delved deeply into creating mature professional legal and law enforcement institutions that will assist in the transition to a stable environment and phase out armed groups operating outside the formal political system, and coping with ongoing security threats.
The security apparatus in Kenya embraces the Justice services, the Correction Services (Kenya Prisons Service), the National Police Service, the National Intelligence Service, the Kenya Defence Forces, and the line ministries that administer security, which include the Office of the President, the Ministry of State for Defence, the Ministry of State for Internal Security and the Ministry of Foreign Affairs.
There are also private security organisations, civil society organisations who are stakeholders in national security, and the public. There are additional institutions that overtly play a role in the country’s security but which have now been directly referred by the Constitution. These are the Kenya Wildlife Service (KWS), the Kenya Forest Service and the National Youth Service.
The KWS is a semi-private organisation, run under the Laws of Kenya but which is not directly under control of the ministries concerned with security. It is equipped and sustained through collections from their services, and mostly from private organisations, such as the World Wildlife Federation and other private bodies interested in wildlife conservation.
The Kenya Forest Service and the National Youth Service are also not considered here because their role in national security is also limited.
Security and the Constitution
From the outset, the security of the people of Kenya is a primary constitutional right as espoused under article 19 (3) (a), and (5) (a). But the Constitution has reserved rights to members of the Kenya Defence Forces, and the National Police Service as espoused in Article 24 (5). The functions and roles of each State actor in the security sector are articulated under the relevant articles of the Constitution.
For the National Security Council, Kenya Defence Forces, National Police Service and National Intelligence Service, they are espoused under articles 240, 241, 242 and 243, respectively.
The Constitution allocates national security organs the primary function to promote and guarantee national security. To do so, the national security organs will act in accordance with the principles in Article 238 (2).
As the national security organs go about the exercise of their power, they shall respect the diverse cultures of the people of Kenya and therefore while recruiting people, they shall ensure that this is reflected in the recruitment.
In addition, Article 239 (2) requires that national security organs remain at all times non-partisan in the exercise of power. They must also be steadfastly apolitical.
It forbids the formation of any other military, paramilitary or similar organisations purported to be for promotion and guarantee of national security except under the terms provided for under the Constitution or an Act of Parliament. These expressions are clear and concise; the national security organs have to undergo radical changes to abide by the new law.
For some of them, like the National Police Service, it is a major paradigm shift given, their past and institutional culture. For the Defence Forces, it is a reaffirmation of what they always considered to be the primary commitment i.e. being subject to civil authority and the people of Kenya.
It has been the conviction of the Defence Forces all along that they would never turn their arms against their own people. And silent as it has been, they have kept their side of the contract never to undermine the civil authority.
The National Intelligence Service is responsible for security intelligence and counter intelligence to enhance national security.
The National Police Service now consists of the Kenya Police Service and the Administration Police Service. The Constitution requires it to be a national service and that functions throughout Kenya. The Constitution clearly dictates a meaningful and radical transformation of all the organs of national security.
National Security Council
Its members are the President; the Deputy President; the Cabinet Secretaries responsible for Defence, Foreign Affairs and Internal Security; the Attorney-General; the Chief of Kenya Defence Forces; the Director-General of the National Intelligence Service; and the Inspector General of the National Police Service.
The National Security Council is vested with overall powers of supervision and control of national security organs and to perform any other functions prescribed by national legislation. Other actors in national security are the Judiciary and the Correction Services.
The National Security Council has been re-engineered and made answerable to the people. Giving it a secretariat and operational centre, the NSC will now have institutional memory, continuity and operational capacity. With a secretariat, it should now be able to bring together the organs in national security.