Don’t create new problems with the new Security and Intelligence Law – Samson Lardy Anyenini

Samson Lardy Anyenini, a Private Legal Practitioner and journalist, has stated that the new security and intelligence law which was passed by Parliament and awaiting the signature of the President, should seek to correct mistakes in the old security and intelligence law which it is seeking to repeal.

The new law has changed the name of the Bureau of National Investigations (BNI) to the National Intelligence Bureau (NIB), something that Anyenini hopes should end bad practices and human rights abuses.

Samson Anyenini was worried that the new law did not list the Narcotics Control Commission and its head as part of the National Security Intelligence Agencies or National Security Council, which he observed was a misnomer in the agency-coordinated state-fight against sophisticated crimes including terrorism and drug trafficking.

This Anyenini called a blunder that must be fixed immediately using section 12(3) of the Act when assented to by the President.

Section 12(3) of the Security and Intelligence Agencies Bill, 2020, reads: “The Council may by publication in the gazette, determine any other agency that is to form part of the national security intelligence agencies".

Anyenini, who is also the host of Newsfile on Joy News, on a segment dubbed ‘Samson’s Take’ explained that the Security and Intelligence Agencies Bill, 2020 is an “ACT relating to the National Security Council, to provide for the establishment of regional and district security councils, to specify the agencies responsible for the security of the State and to provide for related matters".

He said that Section 1 of the Bill/Act specifies the composition of the National Security Council (NSC) to include the President, the Vice President, Ministers of Foreign Affairs, Interior, Defence and Finance, among others.

"The composition also includes the IGP, the Director-General (D-G) of CID, the D-G of Prisons, Directors of Military, External, and Internal Intelligence, Commissioner of Customs and three (3) persons appointed by the President. Admittedly, this is largely a repetition of section 1 of the Security and Intelligence Agencies Act, 1996 (Act 526) which the new law seeks to repeal/has repealed."

Anyenini explained that while in Act 526, protection of “the State against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences” was mentioned in section 12(c) as one of the functions of the NSC, the Executive Secretary (now D-G) of the Narcotics Control Board (now Commission) was not made a member of the NSC. Meanwhile, directors of Custom, CDS, D-G of CID and IGP were members.

"There is no gainsaying that drug trafficking and its fight is an intelligence-based activity," Anyenini wrote.

The Joy FM presenter, therefore, consequently recommended that the D-G of the Narcotics Control Commission (NCC) be made a member of the NSC.

Read below ‘Samson’s Take’.

Samson’s Take: Intel Act, new laws must not create new problems

Parliament just gave us new security and intelligence law awaiting signature by the President. It corrects mistakes in the old security intelligence architecture, shortly after what the infamous Ayawaso debacle exposed. It kills our BNI now reborn in a NIB – hopefully, the new name means the old dies with all the bad practices and complaints of human rights abuses.

It must be an oversight that the newly minted Narcotics Control Commission and its head are not listed in the agency-coordinated state-fight against sophisticated crimes including terrorism and drug trafficking. In my take today, I invite the National Security Council to quickly fix this blunder using section 12(3) of the Act when assented to by the President.

The MPs, before rising, passed the Security and Intelligence Agencies Bill, 2020 into law. The Bill is currently awaiting presidential assent. This Bill, as the long title states, is an “ACT relating to the National Security Council, to provide for the establishment of regional and district security councils, to specify the agencies responsible for the security of the State and to provide for related matters.” Section 1 of the Bill/Act specifies the composition of the National Security Council (NSC) to include the President, the Vice President, Ministers of Foreign Affairs, Interior, Defence and Finance among others.

The composition also includes the IGP, the Director-General (D-G) of CID, the D-G of Prisons, Directors of Military, External, and Internal Intelligence, Commissioner of Customs and three (3) persons appointed by the President. Admittedly, this is largely a repetition of section 1 of the Security and Intelligence Agencies Act, 1996 (Act 526) which the new law seeks to repeal/has repealed.

Interestingly, while in Act 526, protection of “the State against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences” was mentioned in section 12(c) as one of the functions of the NSC, the Executive Secretary (now D-G) of the Narcotics Control Board (now Commission) was not made a member of the NSC. Meanwhile, director of Custom, CDS, D-G of CID and IGP were members. There is no gainsaying that, drug trafficking and its fight is an intelligence-based activity.

Parliament in April this year passed into law the new Narcotics Control Commission Act, 2020 (Act 1019) which was assented to by the President on 12 May 2020. This Act established the Narcotics Control Commission and specified its functions in section 3 to include building an intelligence database on the activities of a narcotic drug or plant dealers and their collaborators within and outside the country, coordinating the combating of illicit drug activity and drug enforcement responsibility conferred on any person or authority by or under an Act of Parliament.

To perform these functions effectively and many others stipulated in Act 1019, the NCC must be driven by intelligence. Gathering this intelligence and the modus operandi is not different from what the listed agencies under the Security and Intelligence Agencies listed in the Bill do. Section 12 lists the NIB, the research Department under the Ministry of Foreign Affairs and the National Communication Bureau. Indeed today, crimes falling under the purview of these institutions (crimes including terrorism, espionage, violent extremism) do not occur in isolation. Drug traffickers are using their illicitly obtained funds/monies to fund terrorists all over the world.

Indeed, according to the United Nations Office on Drug and Crime (UNODC) Report of 2018, “in 2013, cocaine to the value of $1.25 billion was reported to have been trafficked through West Africa to Europe amid rising concern over the possibility of Al-Qaida in the Islamic Maghreb’s (AQIM) increased involvement in the drug trade (UNODC, 2013). A 2016 report commissioned by the European Union associated Al-Shabaab with heroin trafficking, transporting it from ports in areas it controls to Europe and also cocaine trafficking into Kenya.

It also found AQIM to be involved in drug trafficking and profiting from taxing organized criminal groups trafficking drugs from South America to Europe across territory it controls in Sahel region (Reitano, Clarke & Adal, 2017). In 2017, Boko Haram was reported to be facilitating heroin and cocaine smuggling across West Africa. A 2017 UNODC report refers to the trial of members of the organization in Chad that revealed them to be involved in the trafficking of psychotropic substances (UNODC (c), 2017).”

These facts suggest that not only should the D-G of the NCC be made a member of the NSC but the institution should be added to the list of Agencies under the new Act. Under section 14(1)(g) & (h) of the Bill, the Internal Intelligence Agency is to “gather intelligence to counter threats from organized crimes” and conduct an investigation into these crimes in collaboration with the relevant security agencies. Needless to say that drug trafficking is part of organized crime. Parliament in its wisdom provided that the staff of the NCC shall enjoy the conditions of service as applied to the staff of Act 526 which is now being replaced by the new Act.

The Act further equates the ranks of staff of the NCC to those of the BNI (now NIB). This is an (implicit) admission by Parliament and indeed the government of the similarity of functions/roles played by these two institutions.

The recommendation, therefore, is that the D-G of the NCC be made part of the composition of the NSC and the institution. It is the suggestion of some people that, doing so will not render the new Act 1019 moot/redundant. Respectfully, this is not true. The NCC can continue to operate under Act 1019 while being part/added of the Securities and Intelligence Agencies.

Several examples exist both locally and internationally. Indeed, until the new Act, the BNI (NIB), the National Security and the Research Department all operated under different Acts nut remained part of the Security and Intelligence Agencies of Ghana. A similar arrangement exists, among others, with Lands Commission. Doing so rather makes the work of these agencies easy, more collaborative and produces a synergy among them.

It harmonizes efficient resource use and mobilisation and prevents recent experiences where at Kpoglo Border, for instance, NCC arrests a consignment of drugs and imported goods, hands them over to Customs for safekeeping and part of the drugs got missing. There have been numerous occasions where the NCC together with other agencies such as the BNI, National Security, Immigration and local securities have clashed at the airport, the harbours (especially Tema) and the borders. Recognising these institutions as one and similar in function will solve this problem.

Finally, even after the President assents to the Bill, the door to remedy this anomaly is not closed. This is because, under section 12(3) of the Bill, “the Council may by publication in the gazette, determine any other agency that is to form part of the national security intelligence agencies.” New legislation should seek to correct mistakes with old legislations and solve problems associated with the old ones, not to create new problems in addition to the old ones.

Samson Lardy ANYENINI

September 5, 2020