| The security services knew beforehand and issued warnings about the violence that rocked the country on New Year’s Eve, the Sunday Nation has learnt.  | | Youths on the warpath in Kawangware, Nairobi, after the Electoral Commission of Kenya announced the results of the disputed presidential election. Photo/FILE | The National Security Intelligence Service also warned the government that Mungiki was planning to invade the city two weeks before they paralysed transport in the city on Monday, authoritative sources said. The same warning — and specific information where they would attack and in what numbers — was given a week before the riots in parts of the city, a top government official with access to security intelligence said. The warning was again given on Friday and on Sunday at “tactical, operational and strategic levels”, according to the official. This means that police were provided with the information from lower to higher levels. Public fears In an interview with the Sunday Nation, a recently retired top NSIS official sought to allay public fears that the spy agency, considered to be one of the best in the region, was sleeping on the job. He said NSIS foresaw the events of early in the year and made proposals — including changes to the laws — many of which were thrown out of Parliament. The Sunday Nation formed the impression that though the intelligence community does not blame the police and the provincial administration — the main consumers of security intelligence — for the security lapses that led to the displacement of more than 350,000 people, the death of 1200 and the embarrassing presence of Mungiki on the streets of Nairobi, there is a growing impatience and frustration over large amounts of intelligence going to waste in the face of the current insecurity. The former NSIS official, who cannot be named because of service discipline, said that though the intelligence service might sometimes “miss some things” and “see others coming”, “we know pretty much everything that happens in this country”. Criminal justice system He took the Sunday Nation through the steps that the spy organisation took throughout last year to prevent chaos at the election and how Parliament, the complexities of a freer and democratic society as well as “under investment in the criminal justice system” conspired to bring the country to the brink of chaos. They informed the security agents at the district, provincial and national levels of the impending threats posed by the political tides sweeping through the country and whipping up ethnic tensions to a level never witnessed before. The revelations come a week after hundreds of Mungiki members took control of some populous suburbs in the city and paralysed transport in other areas for nearly three days. The manner in which the sect members struck and vanished, coming weeks after thousands of them staged a protest march that took them right past the Police headquarters raised questions about the intelligence-gathering system and its effectiveness in the war against spontaneous and organised crime. It also came as the nation was recovering from the convulsions that followed the announcement of the disputed election results in which more than 1,000 people were killed and 350,000 others were displaced. The Intelligence community is secretive and their complex world hardly understood by the citizens they serve. Calls to NSIS for comment were not returned. Its officers are hardly known to the public, often operating in the shadows. The only officer who takes oath in public is the director general, who is currently Maj General Michael Gichangi. The NSIS official website, for instance, has only one item under the title Bulletin. The recently retired spy, who said he was speaking in a personal capacity but whose views are likely to be widely shared, said the law and the fact that NSIS is a civilian intelligence service, have significantly reduced its ability to “neutralise” threats to security. “Our job is to investigate, analyse and advise, not neutralise,” he said. He said if the service had the legal mandate to act on its own intelligence “all these things would never have happened”. Because of the history of extensive abuses of human rights, including widespread torture, by its predecessor, the Special Branch, NSIS was created as an intelligence gatherer and denied the powers to act on it. The organisation’s mission is to safeguard the Republic of Kenya against any threats emanating from within and without does which ambitious given that the NSIS Act confines the organisation to gathering, analyzing and processing information but not neutralising the threats they identify. The former spy was categorical that NSIS foresaw that politics was taking a dangerous turn that would result in violence. He said they accurately predicted that the violence would grow out of the hate speech by politicians and some vernacular radio stations. To contain the threat, the former spy said, NSIS proposed that the Penal Code be amended to criminalise hate speech. The service also made proposals to amend the law to empower the government to censor hate speech on FM radio. The Bills were tabled and rejected along the way. The former official said the lack of legal safeguards opened the way for unchecked hate campaigns, which led to the chaos. “We had proposed the passage of laws that would check these things because we had analysed information and predicted the kind of things that took place,” the official told the Sunday Nation. “But these were difficult times when politics had divided the entire country right down the middle.” On Mungiki, he said they had dealt with it for a long time and that they fully understood it and how to contain it. He said though he was no longer in the service, “I can tell you where four of them are meeting this minute, in this city to plan for next week”. But that the much NSIS can do is pass on the information to the police. The intelligence community regarded Mungiki as an organised crime group, funded through extortion, he said. To empower police and other law enforcement agencies to deal decisively with it, NSIS was actively involved in the Organised Crime Bill, which was presented, and rejected by Parliament. Breakdown of law The official said there was concern about community attitudes which tended to support the breakdown of law and order, such as what happened in the Rift Valley and in Kayole, Nairobi, where residents defended Mungiki. He spoke of “grid-lock’” in the criminal justice system which encouraged impunity (where people are not punished for crime). The official was not optimistic that Kenya will be secure, unless there is further development of the criminal intelligence wing of the police and a lot more investment in law and order. In the current open environment, he said, it was impossible for the intelligence services to go back to torturing people and violating rights even if they were given the authority to “neutralise” threats to security. “We analyse intelligence and identify threats but according to the law that creates us, we cannot neutralise these threats,” he said. “We can only advise the relevant arms of government who will then decide how to use the information available.” Officers in the NSIS do not enjoy the same powers as those enjoyed by their predecessors in the now defunct Directorate of State Intelligence, which was popularly known as the Special Branch. The Special Branch ceased to exist in 1999 when NSIS was created by an Act of Parliament that took away from spies the powers to arrest, interrogate or prosecute suspects. The Special Branch was dreaded as it had long been used by the Kenyatta and Moi regimes to silence politicians who held a different view from the Establishment. “That was the wisdom that informed the thinking of Parliament at the time,” the retired spy said. “But now it’s an area that needs to be looked at to see whether the Intelligence can be given reasonable powers to arrest, interrogate and prosecute those suspected of threatening State security.” He gave the example of the U.S. where the Federal Bureau of Investigations has powers to gather Intelligence and additional authority in law to arrest and prosecute suspects just like the police can do. | 
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