Introduction to National Security Law

By Iram Chaudhry LLB (Hons)

The world is in a constant state of flux. Emerging economies, fledgling democracies, conflicts and natural disasters cover the globe like pieces from a kaleidoscope. Globalisation continues to drive change across the world at unprecedented speed. Innovations in technology, changing demographics, and revolutions in the global economy are transforming the structures and hierarchies of societies, business and government. The world, it is said, is becoming flat, a term coined by Thomas Friedman to describe the convergence of political and economic, social and technological forces across the globe.

In the past most individuals in society were confined to limited roles, bypassed in the circulation of knowledge, power and capital. Today, knowledge is no longer the preserve of a few states, elite institutions or a handful of individuals.

The flow of capital has transformed the global economy. The surge of capital into emerging markets stood at US$235 billion in 1996, five times the level in 1990. In 2005 technological innovations and faster communication networks saw capital flows topping $6 trillion.

The dynamism and vibrancy of this interconnected world has the potential to create wealth, freedom and security. More trade in goods and services, and better movement of capital has aided investment and development, while global opinion, mobilised through new technologies, has focused our attention on human rights in countries such as Burma, and on environmental problems such as the melting of the polar ice cap.

The government of Kenya has found it hard to intervene effectively in political and economic problems with changes in the global system often reverberating unpredictably throughout The Kenyan society: the west gate saga in 2013, the Al-Shabbat militants taking over certain areas in our country, vulnerable to terrorist threats etc.

The need of national security has arisen in many countries because it is the only way a government can extract measures to curb situations such as terrorism etc.

What is National security?

It is a concept where by a government along with its parliaments should protect the state and its citizens against all kinds of national crisis such as threats.

Jurists claim that there is no single universally accepted definition of it but the various definitions provide an overview of the concept as a whole.

§  Macmillan Dictionary- it is Protection. And safety of the country's secrets and citizens.

§  Walter Lippmann- A nation has security when it does not have to sacrifice its legitimate interests to avoid war, and is able if challenged to maintain them by war.

§  Harold Lasswell- the distinctive meaning of national security means freedom from foreign dictations.

In general;

National security is a corporate term covering both national defense and foreign relations of the state. It refers to the protection of a nation from attack or other danger by holding adequate armed forces and guarding state secrets. The term national security encompasses within it economic security, monetary security, energy security, environmental security, military security, political security and security of energy and natural resources. Specifically, national security means a circumstance that exists as a result of a military or defense advantage over any foreign nation or group of nations, or a friendly foreign relations position, or a defense position capable of successfully protesting hostile or destructive action.

In Cole v. Young, 351 U.S. 536 (U.S. 1956), the court observed that “the term "national security" in the Summary Suspension Act (64 Stat 476), authorizing the heads of specified federal agencies to summarily dismiss federal employees upon a determination that dismissal is necessary or advisable in the interest of the "national security," is used in a definite and limited sense and relates only to those activities which are directly concerned with the nation's safety, as distinguished from the general welfare.”

Origin of National Security.

a)      The origin of the modern concept of national security as a philosophy of maintaining a stable nation state can be traced from the Peace of Westphalia. This is where the concept of state sovereignty was born.

In the Peace of Westphalia, it was an era whereby a series of peace treaties were signed between may and October 1648. European settlements of 1648, which brought to an end the Eighty Years’ War between Spain and the Dutch and the German phase of the Thirty Years’ War. The peace was negotiated, from 1644, in the Westphalian towns of Münster and Osnabrück. The Spanish-Dutch treaty was signed on January 30, 1648. The treaty of October 24, 1648, comprehended the Holy Roman emperor Ferdinand III, the other German princes, France, and Sweden. England, Poland, Russia, and the Ottoman Empire were the only European powers that were not represented at the two assemblies.

These treaties did not restore 100% peace in Europe, but created a basis for self determination hence the Westphalian sovereignty based upon the concept of co-existing sovereign states.

b)      Thomas Hobbes in 1651 stated that citizens yield to a powerful sovereign who in turn promises an end to the civil and religious war and to bring forth a lasting peace and give him the right to conduct policy including the waging war and negotiations for peace.

Elements of National Security.

1.      Military Security- it is one of the earliest recognized form of national security. It implies the capability of a nation to defend instead and/ or deter military decisions. Alternatively it implies the capability of a nation to enforce its policy choices by use of military force.

2.      Environmental threatening outcomes of warfare- an example would be where the Romans destroyed the fields of Carthage by pouring salt over them.

3.      Environmental security- some of the transitional problems that threaten the nations security for example are- global environmental problems such as climate change due to global warming and deforestation, biological diversity etc.

Environmental or resource problems that threatens the nations security are problems whose outcomes would result in conventional threats to national security, e.g. Disputes could range from conflicts due to issues over water scarcity or illegal immigration.

4.      Economic security- historically, conquest of nations made the conquerors rich through plunder access to new resources and enlarge trade by controlling a nations economy.

The freedom to exercise the choice of policy to develop a nations economy invites economic security for instance, the creation and protection of jobs that supply defense and non defense needs are vital to national security. Some of the economic threats in Kenya include- public sector wage inflation.

5.      Cyber security- electronic information systems are vital in maintains national security of any state. Possible authorized access to the critical government infrastructures by state and non state entities can create a serious effect and have a negative impact to a nations security.

Organs

Article 243 of the 2010 constitution establishes the National police service. Hence as per the constitution The National Police Service consists of-

(a) the Kenya Police Service; and

(b) the Administration Police Service.

Article 244 on the other hand provides for the functions of the National Police service.

The National Police Service shall--

(a) strive for the highest standards of professionalism and discipline among its members;

(b) prevent corruption and promote and practice transparency and accountability;

(c) comply with constitutional standards of human rights and fundamental freedoms;

(d) train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and

(e) foster and promote relationships with the broader society.

Under the National police service Act, section 24 of the act provides for the functions of the Kenya police:

• Provide assistance to the public when in need
• Maintenance of law and order
• Preservation of peace   
• Protection of life and property
• Investigation of crime
• Collection of criminal intelligence
• Prevention and deduction of crime
• Apprehension of offenders
• Enforcement of laws and regulations with which it is charged
• Performance of any other duties as may be assigned by the Inspector General in accordance with the law.

In addition to the mandate of the Commission under Article 246(3) of the Constitution 2010, the National Police Service Commission Act spells out the following functions:

• On the recommendation of the Inspector General develop and keep under review all matters relating to human resources policies of members of the service.
• With the advice of the Salaries and Remuneration Commission, determine the appropriate remuneration and benefits and benefits of the service and staff of the Commission;
• Approve application for engagement by police officers in trade and other business, in accordance with the law relating to matters of leadership and integrity under Article 80 of the Constitution;
• Co-operate with other State agencies, departments or commissions on any matter that the Commission considers necessary;
• Provide for the terms and conditions of service and the procedure for recruitment and disciplinary measures for civilian members of the Service;
• Develop fair and clear disciplinary procedures in accordance with Article 47 of the Constitution;
• Investigate and summon witnesses to assist for the purposes of its investigations;
• Exercise disciplinary control over persons holding or acting in office in the Service;
• Promote the values and principles referred to in Articles 10 and 232 of the Constitution throughout the Service;
• Hear and determine appeals from the members of the Service;
• Develop policies and provide oversight over training in the Service;
• Approve training curricula and oversee their implementation;
• Investigate, monitor and evaluate the personnel practices of the Service;
• Receive and refer civilian complaints to the Independent Policing Oversight Authority, the Kenya National Commission on Human Rights, the Director of Public Prosecutions or the Ethics and Anti-Corruption Commission, as the case may be, where necessary;
• Review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the Service;
• Evaluate and report to the President and the National Assembly on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the Service;
• Receive complaints and recommendations from police associations registered in accordance with the applicable law;
• Perform such other functions as are provided for by the Constitution, this Act or any written law.

FUNCTIONS AND SCOPE OF THE NATIONAL SECURITY COUNCIL.

Article 240 of the constitution establishes this council and;

The Council consists of—

(a) the President;

(b) the Deputy President;

(c) the Cabinet Secretary responsible for defence;

(d) the Cabinet Secretary responsible for foreign affairs;

(e) the Cabinet Secretary responsible for internal security;

(f) the Attorney-General;

(g) the Chief of Kenya Defence Forces;

(h) the Director-General of the National Intelligence Service; and

(i) the Inspector-General of the National Police Service.

The Council shall exercise supervisory control over national security organs and perform any other functions prescribed by national legislation.

The President shall preside at meetings of the Council.

The Council shall appoint its secretary.

The Council shall--

(a) integrate the domestic, foreign and military policies relating to national security in order to enable the national security organs to co-operate and function effectively; and

(b) assess and appraise the objectives, commitments and risks to the Republic in respect of actual and potential national security capabilities.

 The Council shall report annually to Parliament on the state of the security of Kenya.

 The Council may, with the approval of Parliament--

(a) deploy national forces outside Kenya for--

(i) regional or international peace support operations; or

(ii) other support operations; and

(b) approve the deployment of foreign forces in Kenya.

The National Security council Act points out the functions of the security council as follows;

Functions of the Council

In addition to the functions specified under Article 240(3), (6) and (8) of the Constitution, the Council shall—

(a) review and make recommendations on policies on matters relating to national security;

(b) prioritize the programs or activities that address the internal, foreign and defence interests on the national security of the Republic;

(c) receive reports from security organs on the implementation of the Council’s policy directives;

(d) develop and from time to time review the national security policy;

(e) identify and develop strategies to enable the security organs to respond to internal and external threats to the country’s sovereignty and territorial integrity;

(f) conduct an annual review of the internal, foreign and defence priorities relating to the national security of the Republic;

(g) advise the President on the declaration of a state of emergency; and

(h) perform such other functions as may be conferred on it by this Act or any other written law.

The supervisory function conferred on the Council by Article 240(3) of the Constitution shall not extend to operational control of the national security organs.

 Subject to Article 6 of the Constitution, the Council shall devolve its services so far as it is appropriate to do so having regard to the nature of the services.