The National Intelligence Service (NIS) Bill is ready for tabling and debate in Parliament. The Speaker of Parliament, Richard Msowoya has referred the Bill to the Security Committee of Parliament for further scrutiny before finally tabled.
It is a matter of time; the establishment and operations of the intelligence service, currently referred to as the National Intelligence Bureau (NIB), will now be formalized and not under Executive Orders. NIB shall transform into a truly dutiful service of the Malawian people, in a democracy, and not a perceived political tool for victimizing political opponents.
In his paper, ‘The role of a security intelligence service in a democracy’, published under NATO’s Democratic Institutions Fellowships Programme in 1999, Dovydas Vitkauskas discusses the nature and crucial role that nations’ intelligence services play or can play in preserving state security.
A Ukrainian legal, social and political expert, Vitkauskas says that historically, where a state was totalitarian, its leaders “knew how to rule with the help of the secret police, but not with the secret ballot.” A domestic security intelligence service in such a country was therefore a very important tool of the government, aimed at repression and control of its own citizens.
This being so, the fact remains that all democratic states retain internal security intelligence agencies. What is the point of a domestic security intelligence service in a democracy?
It can be literally inferred that the principal task of the service is to defend the state against threats to its national security. Because those threats could often be covertly organized, the state, using the service, needs intelligence to counter them, explains Vitkauskas.
But why is a separate security intelligence structure needed to protect national security? Should the police not be doing that job? Is it an independent agency, or subject to a strict control by the government in power? Should parliamentarians and oversight bodies be entitled to know everything about the service, or is there a limit to the service’s external review? How can an agency conduct effective security intelligence and, at the same time, ensure the protection of human rights and fundamental freedoms?
These are some of the questions that a proposed National Intelligence Service (NIS) Bill currently before Malawi Parliament seeks to address. In its current form, the NIB operates under ‘Executive Orders.’ In simple terms, it is not established by law to regulate its existence and operations. It is therefore susceptible to abuse and manipulation.
Often times, some opposition politicians and rights activists have claimed that NIB in Malawi has been used persecution tool against them or anyone with dissenting views against the government in power. Since democracy came in 1994, successive presidents and governments have been accused of ‘abusing’ NIB to advance their ulterior political agendas in order to perpetuate their stay in power against popular will.
It is, therefore, imperative that the status of NIB changed where it must exist legally, duly established under an Act of Parliament, in line with the prevailing democratic dispensation.
But when it was announced the National Intelligence Service (NIS) Bill had been brought before Parliament on May 26, 2017 for possible enactment, some ‘observers’ expressed reservations, arguing the Act would not make the ‘new’ NIS any better than the current NIB.
The ‘observers’ highlighted an isolated provision in the proposed NIS Act that they think gives NIS law enforcement authority that might easily turn into abuse of covert power, especially where it shall have powers to obtain warrants that could be used for arrests and detention purposes.
Whether or not such observation is true, everyone is entitled to their opinion. In this case, it depends on how one reads and understands the proposed NIB Act. But looking at the larger picture, the Act is a fantastic piece of proposed that gives our intelligence service much more independence, which is good news for blossoming democracy.
Malawians have every reason to marvel at the prospect of an intelligence service that exists in the public interest as opposed to one that exists and operates at the whim of the Head of State and the governing party.
The Act seeks shall regulate NIS roles and functions in accordance with the guidelines and rules as put down in the Act. The Act describes in detail the role and functions of the intelligence service.
Among its roles and functions as contained in the NIS Bill, the NIS shall gather, evaluate, correlate, interpret, investigate, disseminate and store information, whether inside or outside the Republic, for the purposes of detecting and identifying of threats to the security of the Republic; advising the President and Government of any threat or potential threat to the security of the Republic; taking steps to protect the security interests of the Republic whether social, military or economic; and supporting the prevention or detection of serious crime; perform such tasks as may be necessary to protect the State from threats and acts of espionage, subversion, terrorism, sabotage or actions intended to undermine parliamentary democracy or to overthrow the government by unconstitutional means; and conduct vetting investigations for persons who hold or may hold vettable posts subject to formal security clearance or who have or may have access to sensitive or classified information.
The service shall also be required to advise government Departments, public bodies or institutions, and statutory bodies or corporations on the protection of vital installations and classified information; make recommendations to the President in connection with policies concerning security intelligence; security intelligence priorities; and security measures in government ministries, departments or agencies; protect VVIPs; and exercise such other functions and duties as are conferred on the Service by or under the Act or any other written law.
What should be most exciting is that under NIS Act section V (I), the framers have made a clear attempt to create a well-functioning intelligence service, which is completely apolitical.
The section provides that: “Staff of the Service shall not engage in any political activities or act as an agent of any political party or group”. The Act provides that should an NIS officer be found with such an offence, they would be charged and may spend five years in jail.
Additionally, under section V (II), the Act prohibits Service officers from indulging in acts of “torture, or any other cruel, inhuman or degrading treatment” and that offenders may spend three years in prison if convicted.
The proposed NIS Act is the most excellent opportunity for genuine reform that shall culminate in a well-functioning intelligence service. The perception out there was that NIB was deeply involved in politics. With the new bill, NIB will now be strengthening its core intelligence capabilities by focusing on its traditional role in national security.
- Tusekele Mwanyongo is a social and political commentator based in Blantyre