National Intelligence Service Act

This Act may be cited as the National Intelligence Service Act.

Section 2 provides interpretive definitions describing activities (including espionage, sabotage, subversion, terrorism, organized crime, and related acts) and actors (foreign government, foreign organisation, foreign person, entity) that are directed against or detrimental to Kenya’s national security or involve threats to persons.

Section 3 lists guiding principles the Service must follow (professionalism and discipline; prevent corruption and promote transparency and accountability; comply with constitutional human rights standards; train staff to high competence and integrity and respect rights and dignity; ensure recruitment reflects Kenyan diversity). Section 3(2) limits the exercise of the Service's powers and functions to specified national interests.

Section 10 has been repealed by Act No. 19 of 2014, section 53.

If the Director-General resigns, they shall cease to hold office one month after the President receives the written notice of resignation.

If the Director-General cannot perform duties due to temporary incapacity or another reason, the President must appoint one of the Directors to act in the Director-General's place; the appointed person may not act for more than six months. "Temporary incapacity" means inability to carry out duties due to illness or other incapacity lasting continuously for not less than three months.

The Salaries and Remuneration Commission must set and regularly review the remuneration and other benefits of the Director-General.

Creates an internal intelligence division responsible for gathering domestic intelligence.

Divisions are headed by Directors appointed by the Director‑General in consultation with the Council; Directors must meet listed qualifications and certain persons are disqualified; recruitment must comply with Article 232(g)-(i); Directors are administrative heads but subject to the Director‑General.

The Council must appoint members of the Service as needed; the Director-General may request secondment of public officers; seconded public officers are regarded as members and subject to the Director-General's operational control.

The Director-General may, after evaluating gathered information, issue, degrade, withdraw or refuse to grant security clearance.

Members of the Service must perform functions and duties assigned by this Act or other written law, obey lawful orders from authorised persons, be considered on duty when required to act, and have all powers necessary to perform their functions wherever deployed.

The oath binds the Director-General and every member of the Service during and after expiry or termination of their employment or engagement; the Director-General takes the oath before the President, and every other member takes the oath before the Director-General.

Director-General must issue appointment certificates to members; Director-General may prescribe the form by Gazette notice; members must produce the certificate on request; members may carry and use official firearms when necessary and approved by the Director-General.

Lists matters covered by the service scheme: appointments, confirmation of appointments, promotions, resignations, retirements and termination of appointment.

Establishes a pension scheme for the members of the Service.

Section 23 defines the disciplinary code: it enables prescription of disciplinary offences, provides for investigation, hearing, determination and appeals of disciplinary cases, authorises delegation of disciplinary powers by the Director-General to any Director or member of the Service, and lists possible sanctions including dismissal, retirement in the public interest, reduction in rank, reprimand, admonition, stoppage of salary increments, fines, recovery of costs for loss or damage to Service property, and recovery of misused public funds.

Section 24 lists topics in a Code of Conduct and Ethics and states that members of the Service are bound by the Public Officers Ethics Act (Cap. 183) or any other written law on ethics and integrity for public officers.

The Director-General must ensure that the code of conduct and related rules and information are made available to members of the Service.

The Director-General must establish procedures to consider and adjudicate grievances relating to members of the Service.

Section 4 sets out the composition of the National Intelligence Service, who is in it (Director-General, Directors, other members), appointment responsibilities, requirements for gender, regional balance and ethnic diversity, and a Director-General duty to adopt measures to realize Article 27.

The Service must perform the functions listed in subsection (1); members of the Service must not carry out the activities listed in subsections (3) and (5); contravention of subsections (3) and (5) is an offence punishable by a fine not exceeding five million shillings or imprisonment for up to ten years or both.

The Service has all powers necessary or expedient to perform its functions under the Constitution, this Act or any other written law; specific powers include information gathering and storage, cooperation with persons or bodies, monitoring emissions, and safeguarding national interests. Members who exercise powers contrary to this section commit an offence with penalties on conviction.

Section heading: "Stoppage and detention".

The President nominates and, with National Assembly approval, appoints the Director-General; the National Assembly must consider and approve or reject nominees and notify the President; if approved the President must appoint within seven days; if the Assembly neither approves nor rejects within sixty days the nominee is deemed approved.

Lists qualifications required for and disqualifications from appointment as the Director-General.

Section 9 sets out functions and powers of the Director-General, including responsibilities for management, operational control, advising and reporting on national security, protecting classified information, participating in intelligence policy, ensuring resource use and training, and other lawful functions; it also grants the Director-General powers, permits delegation in writing, and preserves the Director-General's ability to exercise delegated powers personally.

Effective civilian authority must be exercised through the Cabinet Secretary.

The Cabinet Secretary must ensure that satisfactory arrangements exist to carry out policy directions.

The National Security Council Section must exercise supervisory control over the Service.

The Service must ensure compliance with Article 59(2)(d) of the Constitution.

Persons to whom the Act applies are entitled to all constitutional rights and fundamental freedoms, except where those rights are limited by this Act or any other written law.

This Part permits limiting or restricting rights and fundamental freedoms for specified purposes (including national security, classified information protection, safety of Service members, good order and discipline, and preventing prejudice to others) provided such limits meet Article 24 criteria and additional specified conditions.

The freedom of expression in Article 33 may be limited in respect of a member of the Service.

Subsection (1) lists limits on political activity; subsection (2) preserves members’ right to register to vote and to vote in elections, by-elections or referendums.

Members may be prohibited from leaving Kenya when the restriction is imposed in the interest of national security.

The Service must obtain a warrant under Part V before taking any action under this section.

The right to access information may be limited for classified information or information held by the Service; the Cabinet Secretary may make regulations to determine security classification categories, and four classification labels are defined: "top secret", "secret", "confidential" and "restricted".

Section 38 limits the constitutional freedom of association by preventing a member of the Service from joining or participating in an association, but subsection (2) allows a member of the Service to join or participate in the activities of a professional association.

Officers are prohibited from assembling, demonstrating, picketing or petitioning public authorities, except when done to maintain good order and discipline in the Service.

Members of the Service are prohibited from forming, joining, agitating, participating in trade unions, or going on strike to the extent necessary for maintaining good order and discipline in the Service.

The economic and social rights in Article 43 of the Constitution may be limited for members of the Service when necessary for intelligence training and operation.

The Cabinet Secretary must, subject to Article 35 and other written law and in consultation with the Director-General, prescribe by regulations procedures for classifying, declassifying, protecting, and destroying classified information and other Service records.

The Director-General and members of the Service are exempt from proceedings for acts or omissions done in good faith while performing Service functions or exercising Service powers under the Act.

Certain persons and public bodies must cooperate with the Service, including providing assistance and transmitting intelligence without delay to enable the Service to perform its statutory functions.

If a person is convicted of an offence under this Act for which no penalty is provided, they are liable to imprisonment up to three years, or a fine up to five hundred thousand shillings, or both.

An act, omission or other conduct that constitutes an offence under the Act is an offence even if it occurs outside Kenya; the Act also applies to the Director-General and members of the Service both within and outside Kenya.

The Director-General must, within three months after the end of each calendar year, send the President, the Cabinet Secretary and the National Security Council a report on the Service's activities for that year.

The Cabinet Secretary may, in consultation with the Council, make regulations for matters required by the Act or for better carrying out its provisions; regulations relating to members of the Service need not be published in the Gazette but must be notified to those members in a manner determined by the Cabinet Secretary in consultation with the Director-General.

The Council may make regulations concerning various aspects of the Service (terms and conditions, appointments and promotions, organization and duties, operations, security, firearms, training, discipline, grievances, funds and assets administration, and affirmative action); regulations under this section are not published in the Gazette but are notified to affected members in a manner determined by the Director-General.

The Cabinet Secretary has the power to make regulations about the protection, classification and destruction of classified information and records.

Transitional and saving rules deem prior staff, appointments, secondments, schemes, instruments, property and references under the repealed law to continue under this Act, require review of existing orders/rules within twelve months, and suspend specified provisions for stated periods.

The Director-General may, subject to Council-approved guidelines, issue written authorization to a Service officer to undertake covert operations and authorize specified intrusive actions.

Section 43 was repealed by ActNo. 19 of 2014, s. 56.

Section 44 was repealed by Act No. 19 of 2014, s. 56.

Section 45 has been repealed.

Section 46 was repealed by ActNo. 19 of 2014, s. 56.

Section 47 has been repealed by Act No. 19 of 2014, s. 56.

Section 48 has been repealed by Act No. 19 of 2014, s. 56.

Section 49 has been repealed by ActNo. 19 of 2014, s. 56.

Section 50 was repealed by ActNo. 19 of 2014, s. 56.

Members of the Service are prohibited from subjecting any person to torture or to cruel, inhuman or degrading treatment.

Members of the Service must not act as an agent, campaign for, or otherwise engage in the activities of a political party.

Section 53: Desertion; Section dismissal;

Members of the Service who leave must surrender Service property to an officer designated under subsection (2); failure or returning damaged property is an offence and on conviction the person is liable for repair or replacement costs recoverable by deduction or as a civil debt.

A person must not, without prior written approval of the Director-General and in connection with their activities, use any name, description, title or symbol likely to suggest the activity is carried out under this Act or under the Service's patronage; doing so is an offence punishable by up to seven years' imprisonment or a fine up to one million shillings or both.

It is an offence to falsely represent oneself to be the Director-General or a member of the Service.

Prohibition of disclosure of identity

The Cabinet Secretary may, by notice in the Gazette, prohibit or restrict access to land or premises under the control of the Service; any person who enters or photographs land or premises so gazetted without authority of the Director-General commits an offence and is liable on conviction to up to two years' imprisonment or a fine not exceeding three hundred thousand shillings, or both.

Unauthorized persons who, intending to aid a foreign power or endanger national security, obtain, try to obtain, or possess classified information without lawful excuse commit an offence and face imprisonment up to five years or a fine of five million shillings.

Interfering with the Director-General and members of the Service is linked to imprisonment for a term not exceeding two years.

It is an offence for a person to disclose or use information obtained through their employment except in the strict course of duty or with the Director-General's authority; conviction can lead to up to 14 years imprisonment. The restriction continues after termination of employment, but disclosures about criminal activity are not prevented.

Attempting to commit any offence under this Act is covered.

Former or current members of the Service must not, without the Director-General's authority, disclose or communicate classified information or information whose disclosure is detrimental to national security, whether in Kenya or elsewhere; contravention is an offence punishable by up to fourteen years' imprisonment.

Section 64 establishes the National Intelligence Service Council membership and internal governance: it lists members (including the Cabinet Secretary as Chair), requires the Council to appoint a Secretary, assigns Secretary functions (communicating decisions and other assigned functions), allows the Council to form committees and co-opt persons (who may participate but have no vote), and permits the Council to regulate its procedure subject to the Fourth Schedule.

The National Assembly shall exercise oversight over the Service through the relevant Committee pursuant to Article 238(2) of the Constitution.

Section 66 establishes the Intelligence Service Complaints Board composition and sets appointment, term, resignation, replacement and temporary-substitute rules, and requires the Cabinet Secretary to follow constitutional articles and gender balance in appointments.

Section 67 assigns the Board powers to investigate complaints and related matters, summon witnesses, take evidence (including privately), order documents, withhold certain information, notify and recommend disciplinary action, and report findings; the Cabinet Secretary must make regulations prescribing the Board's procedures; and no person can be compelled by summons to produce documents they could not be required to produce at trial.

Members of the Board are protected from proceedings for acts done in good faith in performing Board functions; they are not to be called to give evidence about Board matters; statements and materials in Board inquiries are privileged as if in court.

The National Assembly must allocate the Service adequate funds to enable the Board to perform its functions.

The Service's funds comprise monies allocated by Parliament, monies or assets that accrue to the Service in performing its powers or functions, and monies from any other source provided or donated.

The Service must keep all books and records of account of its revenue and expenditure in accordance with the Public Finance Management Act (Cap. 412A).