Fury over new NIB bill

There is alarm at the gazetted National Intelligence Service Bill, with critics condemning its sweeping powers they warn could be used to crack down on political opponents and stifle civil liberties.

Social and political analysts as well as opposition political parties have vowed to fight the Bill in its current form, saying it gives what is set to be called the National Intelligence Service (NIS)—currently called the National Intelligence Bureau (NIB)—law enforcement authority that might easily turn into abuse of covert power.

Observers are particularly worried that the Bill—gazetted on May 26 2017—gives the future spy agency powers to obtain warrants for purposes that critics say could also be used for arrests and detention purposes.

They also argue that the Bill does not go far enough to make the NIS accountable to the National Assembly.

This is the second time government has gazetted the proposed law after efforts to take it to Parliament during the reign of former President Joyce Banda in March 2014, were thwarted.

But this is the first time that details of the Bill’s role and reach within the State secret apparatus are coming into the public in specific details.

The Bill seeks to outline duties, functions and powers of NIS, in addition to regulating its administration.

NIB was established in 2001 during former President Bakili Muluzi’s era and over the years, it has come under attack for meddling in politics primarily targeting opposition politicians.

During one-party rule of Malawi Congress Party (MCP), there was the Special Branch which also operated without an Act of Parliament, but conducted its functions under the Malawi Police.

Ministry of Justice and Constitutional Affairs Principal Secretary and Solicitor General Janet Banda yesterday confirmed government was ready to introduce the Bill in Parliament for debate.

She said: “By just publishing the Bill it means government is ready to present it in the House. However, what remains is for the Business Committee of Parliament to decide when and then alert the minister responsible.”

According to the proposed Bill, the NIS director general will have powers to apply from the magistrate court a warrant to enable the institution “perform any of its functions”.

The key functions and duties of NIS will, among others, include gathering, evaluating, correlating, interpreting, investigating, disseminating and storing information for detecting and identifying of threats to the security of the nation.

The warrant will give NIS powers to enter any place or obtain access to anything and search for or remove, examine or record in any manner the information, material, record or document, which human rights advocates say will be an infringement on individual lives’ privacy.

The law will also make NIS an independent State institution and shall report directly to the President who may delegate some or all of his powers under the Act to a Cabinet minister.

Further, it will give the President powers to appoint the director general and his or her deputy on terms and conditions as he or she may determine.

However, while the delegated minister shall annually submit a report on the activities of the service to the defence and security committee of Parliament, the same law empowers the minister or the NIS director general not to “produce before Parliament any document or other evidence” as certified by the director general.

Meanwhile, opposition Alliance for Democracy (Aford) and Peoples Party (PP) have threatened to ensure all detrimental sections are either amended or completely axed from the Bill.

The Legal Affairs Committee of Parliament has also expressed concern with the Bill’s provisions, saying it hopes once tabled it will be referred to the committee and that of Defence and Security for “through cleaning”.

“Law enforcement functions must be carried out by law enforcement agencies and not intelligence institutions. Those powers are for the Police.

“I don’t think parliamentarians will pass that, as for PP we will not support it unless amended or some articles are entirely removed from the Bill,” said PP acting president Uladi Mussa, who also served as Minister of Home Affairs and Internal Security on two different occasions.

On his part, Aford president Enock Chihana, who is former chairperson of Defence and Security Committee of Parliament, said when the issue was introduced to the committee during his leadership, members expressed discomfort with several provisions, including the law enforcement and appointment of director general.

“We were against it. Actually, in Parliament we will not support it. Why should we have several law enforcement agencies when we already have the Police and the Anti-Corruption Bureau [ACB]? We want to establish a service independent from any ruling party. We don’t want this to be a ruling party hunting dog,” said Chihana.

He also said members were not at ease with the provision of the President appointing the director general and other directors.

“If the President is to be made the appointing authority then the top management has to be vetted and approved by Parliament, otherwise the current arrangement will not be accepted,” declared Chihana.

Malawi Congress Party (MCP) legislator and the current chairperson of the Parliamentary Legal Affairs Committee Maxwell Thyolera said during a meeting with NIB officials his committee jointly held with the Defence and Security committee, it was pointed out that such sections must be taken out of the Bill.

“Our hope is that when it is tabled in Parliament it will be referred to the two committees to clean it up so that it is in line with whatever is happening in other jurisdictions,” said Thyolera.

He observed that giving NIS the law enforcement powers may end up persecuting innocent citizens because of political differences.

Commentators, including former British High Commissioner to Malawi Michael Nevin, have on several occasions raised concerns with all the four democratic administrations over politicisation of the bureau.

Until recently, the bureau was headed by Nicholas Dausi (before his appointment as Information Minister), who is a senior ruling Democratic Progressive Party (DPP).

“Much as we welcome the move to have the body legislated and have a legal framework mandating its existence, some of the powers are just excessive and prone to abuse,” said Thyolera.

But the Secretary for Justice Banda defended the Bill, saying the law enforcement powers are not exclusive to the police.

“You will find them across our laws depending on the institution. The only important thing is that you cannot just arrest [a person] without a warrant, you have to obtain it from the court and that’s the safeguard. This is not a warrant like during Kamuzu Banda’s time where the police could just issue a warrant and arrest a person, you actually have to go to the court and convince it that there is a cause why you should effect an arrest,” explained Banda.

But human rights activist Robert Mkwezalamba said if NIS is given outright right to arrest, “the act has the possibility of impinging on people’s rights as they have the right to be formerly charged and be entitled to bail within 48 hours.”

However, the Malawi Law Society (MLS) said the constitution gives citizens optimism because if Parliament passes the Bill into law, its sustenance will only depend on whether its provisions are in conformity with the Constitution or are violating the provisions of the Constitution.

“So, if some quarters discover that their rights are violated they can move the High Court to use its powers and declare that law invalid for being contrary to the constitution,” said MLS secretary Michael Goba Chipeta.

According to Parliament sources, the Bill is likely to be tabled in Parliament during the November meeting. n