Controller of Budget Act

The Controller of Budget Act which was enacted in September 2016, lays down operations details of the Controller of Budget. Her main tasks are; quarterly budget implementation reports (Sec.9) and special reports provided for in the constitution (Sec. 10). Quarterly reports have to be published and publicised within 14 days after submission to the parliament or county assembly.

Download: Controller of Budget Act 2016 (pdf)

The act as downloaded from kenyalaw.org on Oct. 19, 2016

 

PART I — PRELIMINARY
1.
Short title

This Act may be cited as the Controller of Budget Act, 2016.

2.
Interpretation

In this Act, unless the context otherwise—

“accounting officer” means an officer designated as such in accordance with relevant provisions of the Public Finance Management Act, 2012, No. 18 of 2012 or any other Act of Parliament;
“any other public funds” means any public fund other than the Consolidated Fund, County Revenue Funds or Equalization Fund that —
(a) is reasonably excluded from the Consolidated Fund by an Act of Parliament;
(b) is payable to another public fund established for a specific purpose; and
(c) requires the Controller of Budget to approve withdrawals from that public fund as provided by an Act of Parliament;
“Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to finance;
“Controller of Budget” means the Controller of Budget appointed under Article 228 of the Constitution;
“public officer” has the meaning assigned to it under Article 260 of the Constitution;
“Public Service Commission” means the Public Service Commission established under Article 233 of the Constitution; and
“State Organ” has the meaning assigned to it under Article 260 of the Constitution.
PART II — ADMINISTRATION
3.
Qualification for appointment as Controller of Budget
(1)

A person shall be qualified for appointment as the Controller of Budget if such person—

(a)

is a citizen of Kenya;

(b)

holds the qualification for the office specified in Article 228 of the Constitution;

(c)

holds a degree in finance, accounting or economics from a university recognizel in Kenya; and

(d)

meets the requirements of Chapter Six of the Constitution.

(2)

A person shall not be qualified for appointment under subsection (1) if the person—

(a)

is a member of Parliament;

(b)

is a member of a county assembly;

(c)

has not met his or her tax obligations;

(d)

has been removed from office for contravening the Constitution or any other law; or

(e)

is an undischarged bankrupt.

4.
Vacancy and procedure for appointment of the Controller of
Budget
(1)

The office of the Controller of Budget shall become vacant if the Controller of Budget—

(a)

resigns in writing by a notice addressed to the President;

(b)

is removed from office under the provisions of Article 251 or Chapter six of the Constitution; or

(c)

dies.

(2)

Where a vacancy occurs under subsection (1), the Public Service Commission shall within seven days by notice in the Gazette, at least two newspapers of national circulation and at least two television and radio stations declare the office vacant and invite applications.

(3)

An application under subsection (2) shall be forwarded to the Public Service Commission within fourteen days by a qualified person.

(4)

The names of all applicants under subsection (3) shall be published in the Gazette.

(5)

The Public Service Commission shall within seven days of expiry of the period prescribed under subsection (3) convene a committee for the purpose of considering the applications and shortlisting three persons for appointment as Controller of Budget.

(6)

The Committee under subsection (5) shall consist of the following persons —

(a)

a representative from the Office of the President;

(b)

a representative from the Ministry for the time being responsible for matters relating to finance;

(c)

a representative from the Office of the Attorney- General; and

(d)

a representative from the Ministry for the time being responsible for matters relating to the public service.

(7)

The Committee shall hold its proceedings in public and submit to Parliament a report of the interview proceedings including the scores awarded to each candidate by each member of the committee and the criteria used in selecting the three shortlisted candidates.

(8)

The Public Service Commission shall within seven days of the shortlisting of candidates under subsection (5), forward the names to the President.

(9)

The President shall within seven days of receipt of the names under subsection (8), nominate one candidate for appointment as the Controller of Budget and forward the name to the National Assembly.

(10)

Where the National Assembly—

(a)

approves the nominee, the Speaker of the National Assembly shall within three days of the approval, forward the name of the nominee to the President for approval.

(b)

rejects the nominee, the Speaker of the National Assembly shall within three days of the rejection, communicate the decision to the President who shall submit a fresh nominee from amongst the candidates forwarded by the Public Service Commission.

(11)

If the National Assembly rejects all or any subsequent nominee under subsection (10), the provisions of subsection ( 1) to (9) shall apply with the necessary modifications.

(12)

The President shall within seven days of receipt of the name under subsection (10) (a), by notice in the Gazette appoint the Controller of Budget.

(13)

For the avoidance of doubt, the Public Service Commission shall only provide secretariat services for the committee convened under subsection (5).

(14)

Despite the foregoing provisions, the President may by notice in the Gazette extend the period specified in respect of any matter under this section by a period not exceeding twenty one days.

5.
Functions of the Controller of Budget

In the performance of his or her functions under Articles 228 (4) to (6), and 252 of the Constitution, the Controller of Budget shall ensure prudent and efficient use of public funds —

(a)

by authorising withdrawals from the Equalization Fund, Consolidated Fund, County Revenue Funds and any other public fund which by an Act of Parliament requires approval of the Controller of Budget for withdrawal from that fund;

(b)

by monitoring, evaluating, reporting and making recommendations to the national and county governments on measures to improve budget implementation in accordance with Article 228 the Constitution;

(c)

in consultation with the national and county treasuries and the Public Sector Accounting Standards Board established under section 192 of the Public Finance Management Act, 2012, No 18 of 2012 by reviewing from time to time, the formats of requisitions and approvals of withdrawals of funds in paragraph (a);

(d)

by enforcing budgetary ceilings by Parliament on national and county government expenditure; and

(e)

in performing any other function that may be assigned to him or her by an Act of Parliament.

6.
Deputy-Controller of Budget
(1)

Pursuant to Article 252(1)(c) of the Constitution, there shall be a Deputy-Controller of Budget who shall be recruited through a competitive process and appointed by the Controller of Budget.

(2)

A person shall be qualified for appointment as the Deputy-Controller of Budget if such person —

(a)

is a citizen of Kenya;

(b)

holds the qualification for the office specified in Article 228 of the Constitution;

(c)

holds a degree in finance, accounting or economics from a university recognized in Kenya; and

(d)

meets the requirements of Chapter Six of the Constitution.

(3)

A person shall not be qualified for appointment under subsection (1) if the person —

(a)

is a member of Parliament;

(b)

is a member of a county assembly;

(c)

has not met his or her tax obligations;

(d)

has been removed from office for contravening the Constitution or any other law; or

(e)

is an undischarged bankrupt.

(4)

The Deputy-Controller of Budget shall deputize the Controller of Budget and perform such duties and exercise such other powers as the Controller of Budget may delegate to him or her.

(5)

In the performance of his or her duties, the Deputy Controller of Budget shall report to the Controller of Budget.

7.
Acting Controller of Budget
(1)

Where—

(a)

the office of the Controller of Budget becomes vacant;

(b)

the Controller of Budget has been suspended in accordance with the Constitution;

(c)

the appointment of a person as Controller of Budget is pending; or

(d)

the Controller of Budget is, for any reason unable to perform the functions of his or her office,

then, until a person is appointed to and has assumed the , functions of that office in accordance with section 3, or until the Controller of Budget has resumed the performance of those functions, the Public Service Commission shall recommend the most senior officer in the office of the Controller of Budget to the President for designation as the acting Controller of Budget.

(2)

A person designated under subsection (1) shall meet the minimum qualifications for appointment to the office of the Controller of Budget and shall serve for a period of not more than ninety days.

(3)

When acting in terms of subsection (1), the acting Controller of Budget shall have all the powers of the Controller of Budget.

8.
Submission of copies of estimates and County Fiscal Strategy Paper to Controller of Budget

For the purposes of enabling the Controller of Budget to effectively oversee the implementation of the Budget—

(a)

the Cabinet Secretary shall at the time of submitting the budget estimates of the national government to the National Assembly submit a copy of the estimates to the Controller of Budget;

(b)

by monitoring, evaluating, reporting and making recommendations to the national and county governments on measures to improve budget Implementation in accordance with Article 228 the Constitution;

(c)

each County Executive member responsible for finance shall at the time of submitting the County Fiscal Strategy paper to the County Assembly of the respective county government submit a copy of the County Fiscal Strategy Paper to the Controller of Budget.

9.
Reports of the Controller of Budget
(1)

The Controller of Budget shall, in accordance with Article 228 (6) of the Constitution, submit to Parliament quarterly budget implementation reports for the national and county governments within thirty days after the end of each quarter.

(2)

The reports submitted under subsection (1) shall provide information relating to —

(a)

the approved budget;

(b)

the total funds released by programmes;

(c)

the absorptive capacity of funds by projects; and

(d)

reasons of the decline if any.

(3)

The reports submitted under subsection (1) shall comprise of—

(a)

a report on approved expenditures, authorised withdrawals, actual releases and actual expenditures;

(b)

the comparison between amounts provided for in the County Allocation of Revenue Act for each county in accordance with county government disbursement schedule approved by the Senate with the authorised withdrawals from the Consolidated Fund to county governments; and

(c)

a report on the receipts into the Consolidated Fund and the County Revenue Funds.

(4)

For the avoidance of doubt, the reports submitted under subsection (1) shall not include reports on recent economic developments and outlook, including revenue, grants and loans forecasts and receipts.

(5)

Despite the first quarterly report of the year submitted under this section, each subsequent report shall contain cumulative amounts from the beginning of that year.

(6)

The Controller of Budget shall publish and publicise the reports referred to in this section not later than fourteen days after the reports are submitted to Parliament.

10.
Special reports

The Controller of Budget shall prepare and submit the following special reports as provided for in the Constitution —

(a)

in accordance with Article 225(7), a report to Parliament on funds withheld by the Cabinet Secretary giving a detailed account as to why the withholding should be continued or withdrawn;

(b)

pursuant to any investigations conducted under Article 252(1)(a) , a report to Parliament, the national executive, county assemblies or county executives, or any other state agency as may be appropriate, on any matters that have come to the attention of the Controller of Budget relating to the performance of his or her functions;

(c)

pursuant to Article 254 (2), and upon request by the President, National Assembly, or the Senate, a report on a particular issue; and

(d)

a report on any particular issue as may be requested by a Governor or a county assembly.

11.
Delegation of powers and duties
(1)

The Controller of Budget may—

(a)

delegate in writing, any of his or her powers to any employee in the Office of the Controller of Budget; or

(b)

instruct in writing, any employee in the Office of the Controller of Budget to perform any of the duties of his or her office.

(2)

A delegation or instruction under subsection (1) above —

(a)

shall be subject to any conditions the Controller of Budget may impose; and

(b)

shall not divest the Controller of Budget of the responsibility concerning the exercise of the power or the performance of the duty.

12.
Staff of the Controller of Budget
(1)

The Controller of Budget may appoint such staff as may be necessary for the proper discharge of the functions of the Office of the Controller of Budget under this Act, on the basis of such qualifications and on such terms and conditions as the Controller of Budget may determine and on such remuneration and benefits as the Salaries and Remuneration Commission, shall advise.

(2)

In making appointments in terms of subsection (1), the Controller of Budget shall be guided by Articles 27 and 232 of the Constitution.

13.
Secondment
(1)

In addition to the staff recruited by the Controller of Budget under Article 252 (1)(c) of the Constitution and section 12 of this Act, any public entity may, upon request by the Controller of Budget, second to his or her office such number of public officers as may be necessary for the purposes of carrying out the functions of this office.

(2)

A public officer seconded under subsection (1) shall, during the period of secondment, be deemed to be an officer of the Controller of Budget and shall be subject only to the direction and control of the Controller of Budget.

(3)

For purposes of this Act, a public officer who is seconded to the Office of the Controller of Budget under this section, shall be deemed to be an employee of the Controller of Budget and shall enjoy the same benefits as an employee recruited directly by the Controller of Budget under this Act.

(4)

The Controller of Budget may upon request by a public entity second an officer for an agreed period, for purposes of capacity building of the institution.

(5)

A public officer seconded by the Controller of Budget under subsection (4), shall be deemed to be an officer of that institution and shall be subject only to the direction and control of that institution.

14.
The common seal
(1)

The common seal of the Controller of Budget shall be kept in such custody as the Controller of Budget shall direct and shall not be used except on his or her order.

(2)

The common seal of the Controller of Budget when affixed to a document shall be prima
facie evidence of authority unless the contrary is proved.

(3)

The fixing of the common seal by the Controller of Budget shall be authenticated by the signature of the Controller of Budget:

Provided that the Controller of Budget shall nominate a member of staff to authenticate in his or her absence.

15.
Protection from personal liability

Nothing done by the Controller of Budget or any person working under the instructions of the Controller of Budget shall, if done in good faith for the purposes of executing the powers, functions or duties of the Controller of Budget under the Constitution, this Act or any other law, render the Controller of Budget, officer or agent personally liable for any action, claim or demand.

16.
Duty to co-operate
(1)

A public officer, State Organ or State office shall co-operate with the Controller of Budget to enable the Controller of Budget to carry out his or her functions in accordance with the Constitution and any other law and shall in particular—

(a)

respond promptly to any inquiry made by the Controller of Budget;

(b)

furnish the Controller of Budget with periodic reports as to the status of management of the budget and public funds in respect of the question raised within such period as may be prescribed by the Controller of Budget; and

(c)

provide any other information that the Controller of Budget may require in the performance of his or her functions under the Constitution or any other legislation.

(2)

A public officer, who refuses or fails to cooperate with the Controller of Budget as required by this section commits an offence and is liable, on conviction, to a term of imprisonment not exceeding two years or to a fine not exceeding one million shillings, or to both.

PART III — FINANCIAL PROVISIONS
17.
Funds of the Controller of Budget

The funds of the Controller of Budget shall consist of—

(a)

monies appropriated by Parliament for the purposes of his or her office;

(b)

such monies or assets as may lawfully accrue to the Controller of Budget in the course of the exercise of his or her powers or in the performance of the functions set out in this Act; and

(c)

all monies from any other lawful source provided or donated.

18.
Financial year

The financial year of the Controller of Budget shall be the period of twelve months ending on the thirtieth of June of each year.

19.
Annual report
(1)

The Controller of Budget shall cause an annual report to be prepared for each financial year.

(2)

The annual report shall contain, in respect of the year to which it relates—

(a)

the audited financial statements of the Controller of Budget;

(b)

a description of the activities of the Controller of Budget;

(c)

such other statistical information as the Controller of Budget considers appropriate; and

(d)

any other information relating to his or her functions that the Controller of Budget considers necessary.

(3)

The Controller of Budget shall cause the annual report to be published and publicised.

20.
Annual estimates
(1)

The annual estimates of the Controller of Budget shall be submitted and reported upon in accordance with the relevant provisions of the Constitution and the Public Finance Management Act, 2012, No. 12 of 2012.

(2)

Without prejudice to the generality of subsection (1)—

(a)

before the commencement of each financial year, the Controller of Budget shall cause to be prepared estimates of the revenue and expenditure for that year;

(b)

the annual estimates prepared by the Controller of Budget under paragraph (a) shall be forwarded to the Cabinet Secretary.

21.
Accounts and Audit
(1)

The Controller of Budget shall cause to be kept all proper books and records of accounts for his or her office.

(2)

Within a period of three months after the end of each financial year, the Controller of Budget shall submit to the Auditor-General the financial statements of his or her office in respect of that year for audit.

(3)

The annual accounts of the Controller of Budget shall be prepared, audited and reported upon in accordance with the provisions of the Constitution, the Public Finance Management Act, 2012, the Public Audit Act, 2015 and any other relevant legislation.

PART IV — MISCELLANEOUS PROVISIONS
22.
Offences

A person who —

(a)

without justification or lawful excuse, obstructs, hinders, assaults or threatens the Controller of Budget or his or her members of staff acting under this Act;

(b)

knowingly submits false or misleading information; or

(c)

knowingly misrepresents to or misleads the Controller of Budget or a member of his or her staff acting under this Act,

commits an offence and is liable, or conviction, to a term of imprisonment not exceeding two years or to fine not exceeding five million shillings or to both.

23.
Offences by officers of the office of the Controller of Budget
(1)

Any officer of the Office of the Controller of Budget commits an offence if that officer —

(a)

engages in a corrupt act;

(b)

knowingly and willfully conceals information on the Controller of Budget’s findings for whatever reason, including in order to obtain a financial benefit for the officer or an accomplice or another person;

(c)

knowingly and willfully fails to disclose information on fraud or corrupt practice by a State Organ or public entity;

(d)

fails to disclose any conflict of interest in any matter under consideration in the course of discharging any functions under this Act; or

(e)

knowingly and willfully discloses, publishes or publicizes the Controller of Budgets’ report or its contents to third parties including the media before the report is finalized and formally submitted to Parliament or a county assembly and copied to the entity that is subject of the report.

(2)

Any officer of the Office of the Controller of Budget who commits an offence under subsection (1) shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding five years, or to both.

24.
General penalty

Except as otherwise provided for under this Act, a person who is convicted of an offence under this Act for which no other punishment is provided, such person shall be liable to a fine not exceeding two million shillings or to a term of imprisonment not exceeding one year or, to both.

25.
Regulations

The Controller of Budget may make regulations generally, which shall be laid before Parliament, for better carrying out and giving effect to, any provision of this Act.

26.
Code of conduct

Within six months of the commencement of this Act, the Controller of Budget shall prepare a code of conduct for members of staff of the Office of the Controller of Budget.

27.
Repeal of No. 8 of 2011

The Independent Offices (Appointment) Act is repealed.

Election Offences Act

The Election Offences Act, 2016 is in effect from Oct. 4, 2016. It provides, among others, for penalties (the highest being) ten million Shillings and/or up to to six years imprisonment, depending on the offence. “A candidate or any other person who uses a public officer or the national security organs to induce or compel any person to support a particular candidate or political party commits an offence and is liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding six years or to both.” (Sec.12)

 

Continue reading “Election Offences Act”

Access to Information Act

The Kenyan Access to Information Act of 2016 (pdf) was enacted on September 21st, 2016.

This is the Act as downloaded from kenyalaw.org on Sep 30, 2016:

PART I — PRELIMINARY
1.
Short title

This Act may be cited as the Access to Information Act, 2016.

2.
Interpretation

In this Act, unless the context otherwise requires—

“Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to information;
“chief executive officer” of a public body or private body means the Principal Secretary in the case of a Government Ministry or Department, managing director in the case of a corporate body, or the person assigned the principal administrative responsibility in any body by whatever title; and
“citizen” means any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.
“Commission” means the Commission on Administrative Justice established by section 3 of the Commission on Administrative Justice Act, No. 23 of 2011;
“edited copy” in relation to a document, means a copy of a document from which exempt information has been deleted;
“electronic record” means a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in an information system or other medium;
“exempt information” means information that may be withheld by a public entity or private body in accordance with section 6;
“information” includes all records held by a public entity or a private body, regardless of the form in which the information is stored, its source or the date of production;
“information access officer” means any officer of a public entity or private body designated under section 7 as such for purposes of this Act;
“interested party” means a person who has an identifiable stake or legal interest in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation;
“national security” has the same meaning assigned to it by Article 238(1) of the Constitution;
“person” has the meaning assigned to it in Article 260 of the Constitution;
“personal information” means information about an identifiable individual, including, but not limited to—
(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, age, physical, psychological or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
(c) any identifying number, symbol or other particular assigned to the individual;
(d) the fingerprints, blood type, address, telephone or other contact details of the individual;
(e) a person’s opinion or views over another person;
(f) correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
(g) any information given in support or in relation to an award or grant proposed to be given to another person;
(h) contact details of an individual.
“private body” means any private entity or non-state actor that—
(a) receives public resources and benefits, utilizes public funds, engages in public functions, provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources); or
(b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right;
“public entity” means—
(a) any public office, as defined in Article 260 of the Constitution; or
(b) any entity performing a function within a commission, office, agency or other body established under the Constitution;
“public officer” has the same meaning assigned to it by Article 260 of the Constitution;
“public record” includes any record in written or any other form containing information relating to the conduct of the public entity’s business, prepared, owned, used or retained by a public entity regardless of physical form or characteristics;
“secretary” has the meaning assigned to it by section 2 of the Commission on Administrative Justice Act, 2011;
“State” has the meaning assigned to it under Article 260 of the Constitution”.
3.
Object and purpose of the Act

The object and purpose of this Act is to—

(a)

give effect to the right of access to information by citizens as provided under Article 35 of the Constitution;

(b)

provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles;

(c)

provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law;

(d)

promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information;

(e)

provide for the protection of persons who disclose information of public interest in good faith; and

(f)

provide a framework to facilitate public education on the right to access information under this Act.

PART II — RIGHT TO INFORMATION
4.
Right to information
(1)

Subject to this Act and any other written law, every citizen has the right of access to information held by—

(a)

the State; and

(b)

another person and where that information is required for the exercise or protection of any right or fundamental freedom.

(2)

Subject to this Act, every citizen’s right to access information is not affected by—

(a)

any reason the person gives for seeking access; or

(b)

the public entity’s belief as to what are the person’s reasons for seeking access.

(3)

Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.

(4)

This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.

(5)

Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.

5.
Disclosure of information by public entities
(1)

Subject to section 6, a public entity shall—

(a)

facilitate access to information held by such entity and which information may include—

(i) the particulars of its organization, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) salary scales of its officers by grade;
(v) the norms set by it for the discharge of its functions;
(vi) guidelines used by the entity in its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and
(vii) a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person;
(b)

during the year commencing on first January next following the first publication of information under paragraph (a), and during each succeeding year, cause to be published statements updating the information contained in the previous statement or statements published under that paragraph;

(c)

publish all relevant facts while formulating important policies or announcing the decisions which affect the public, and before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles;

(d)

provide to any person the reasons for any decision taken by it in relation to that person;

(e)

upon signing any contract, publish on its website or through other suitable media the following particulars in respect of the contract entered into—

(i) the public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference;
(ii) the contract sum;
(iii) the name of the service provider, contractor or individual to whom the contract has been granted; and
(iv) the periods within which the contract shall be completed.
(2)

Information shall be disseminated taking into consideration the need to reach persons with disabilities, the cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available free or at cost taking into account the medium used.

(3)

At a minimum, the material referred to in subsection (1) shall be made available—

(a)

for inspection by any person without charge;

(b)

by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and supplying them may be made; and

(c)

on the internet, provided that the materials are held by the authority in electronic form.

(4)

Subsection (1)(a) shall come into operation twelve months after the commencement of this Act.

6.
Limitation of right of access to information
(1)

Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—

(a)

undermine the national security of Kenya;

(b)

impede the due process of law;

(c)

endanger the safety, health or life of any person;

(d)

involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;

(e)

substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

(f)

cause substantial harm to the ability of the Government to manage the economy of Kenya;

(g)

significantly undermine a public or private entity’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

(h)

damage a public entity’s position in any actual or contemplated legal proceedings; or

(i)

infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

(2)

For purposes of subsection (1)(a), information relating to national security includes—

(a)

military strategy, covert operations, doctrine, capability, capacity or deployment;

(b)

foreign government information with implications on national security;

(c)

intelligence activities, sources, capabilities, methods or cryptology;

(d)

foreign relations;

(e)

scientific, technology or economic matters relating to national security;

(f)

vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;

(g)

information obtained or prepared by any government institution that is an investigative body in the course of lawful investigations relating to the detection, prevention or suppression of crime, enforcement of any law and activities suspected of constituting threats to national security;

(h)

information between the national and county governments deemed to be injurious to the conduct of affairs of the two levels of government;

(i)

cabinet deliberations and records;

(j)

information that should be provided to a State organ, independent office or a constitutional commission when conducting investigations, examinations, audits or reviews in the performance of its functions;

(k)

information that is referred to as classified information in the Kenya Defence Forces Act; and

(l)

any other information whose unauthorized disclosure would prejudice national security.

(3)

Subsection (1)(d) and (e) shall not apply if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk.

(4)

Despite anything contained in subsections (1) and (2), a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court.

(5)

A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.

(6)

In considering the public interest referred in subsection (4), particular regard shall be had to the constitutional principles on the need to—

(a)

promote accountability of public entities to the public;

(b)

ensure that the expenditure of public funds is subject to effective oversight;

(c)

promote informed debate on issues of public interest ;

(d)

keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and

(e)

ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

(7)

Unless the contrary is proved by the public entity or private body, information is presumed not to be exempt if the information has been held for a period exceeding thirty years.

PART III — ACCESS TO INFORMATION
7.
Designation of information access officer
(1)

A chief executive officer of a public entity shall be an information access officer for purposes of this Act.

(2)

A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

8.
Application for access
(1)

An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested.

(2)

Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.

(3)

The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.

(4)

A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.

9.
Processing of application
(1)

Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application

(2)

Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application.

(3)

The information officer to whom a request is made under subsection (2) may extend the period for response on a single occasion for a period of not more than fourteen days if—

(a)

the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or

(b)

consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time.

(4)

As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—

(a)

whether or not the public entity or private body holds the information sought;

(b)

whether the request for information is approved:

(c)

if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and

(d)

if the request is declined, a statement about how the requester may appeal to the Commission”;

(5)

A public officer referred to in subsection (1) may seek the assistance of any other public officer as the first mentioned public officer considers necessary for the proper discharge of his or her duties and such other public officer shall render the required assistance.

(6)

Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected.

10.
Transfer of application
(1)

An information access officer may, not later than five days from the date of receipt of an application, transfer the application or any relevant part of it, to another public entity, if the information requested is held by that other public entity.

(2)

Where an application is transferred under subsection (1), an information access officer shall inform the applicant immediately but in any event not later than seven days from the date of receipt of the application, about such transfer.

(3)

A public entity to which an application is referred by an information access officer under subsection (1) shall make a decision on the application within twenty-one days from the date that the application was first made.

(4)

The provisions of this section shall apply with the necessary modification to an application for access to information that is made to a private body to which this Act applies.

11.
Providing access to information
(1)

Where a decision is taken to provide the information applied for, an information access officer shall send to the applicant a written response within fifteen working days of receipt of the application, advising—

(a)

that the application has been granted;

(b)

that the information will be contained in an edited copy, where applicable;

(c)

the details of any fees or further fees to be paid for access, together with the calculations made to arrive at the amount of the fee;

(d)

the method of payment of such fees, if any;

(e)

the proposed process of accessing the information once the payment if any is made; and

(f)

that an appeal may be made to the Commission in respect of the amount of fees required or the form of access proposed to be provided.

(2)

Subject to subsection (3), upon receipt of the fee payable, an information access officer shall provide the information to the applicant or permit the relevant inspection immediately but in any event not later than two working days from the date of receipt of the payment.

(3)

Any information to be made accessible to an applicant shall be produced forthwith at the place where it is kept, for inspection in the form in which it is held unless the applicant requests that it be made available in another form and, if it is practicable to do so, such information may be copied, reproduced or used for conversion to a sound transmission at the expense of the applicant.

(4)

Where a request for information is to a private body, subsections (1), (2), and (3) shall apply with necessary changes made.

12.
Fees
(1)

No fee may be levied in relation to the submission of an application.

(2)

A public entity or private body from which an application for access to information has been made may charge a prescribed fee for the provision of the information and the fee shall not exceed the actual costs of making copies of such information and if applicable, supplying them to the applicant.

(3)

Subject to subsection (2), the Cabinet Secretary shall make regulations prescribing the fees payable for expenses incurred in providing information to an applicant.

13.
Correction of information
(1)

At the request of the applicant, a public entity or private body shall within reasonable time, at its own expense, correct, update or annotate any personal information held by it relating to the applicant, which is out of date, inaccurate or incomplete.

(2)

A request under this section shall be made in writing to the public entity responsible for the maintenance of the record system containing the out of date, inaccurate or incomplete information and shall—

(a)

state that it is a request to amend certain personal information relating to the applicant;

(b)

specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and

(c)

specify the remedy sought by the applicant.

PART IV — REVIEW OF DECISIONS BY THE COMMISSION
14.
Review of decisions by the Commission
(1)

Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information—

(a)

a decision refusing to grant access to the information applied for;

(b)

a decision granting access to information in edited form;

(c)

a decision purporting to grant access, but not actually granting the access in accordance with an application;

(d)

a decision to defer providing the access to information;

(e)

a decision relating to imposition of a fee or the amount of the fee;

(f)

a decision relating to the remission of a prescribed application fee;

(g)

a decision to grant access to information only to a specified person; or

(h)

a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13.

(2)

An application under subsection (1) shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant.

(3)

The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it is required to publish under this Act.

(4)

The procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under section 22 of this Act or as prescribed by the Commission.

15.
Notice to interested party

In reviewing a decision in terms of this Act, the Commission may, where necessary, give notice to any third party to whom the information relates unless the necessary steps to locate the third party have been unsuccessful.

16.
Protection of person making disclosure
(1)

A person shall not be penalized in relation to any employment, profession, voluntary work, contract, membership of an organization, the holding of an office or in any other way, as a result of having made or proposed to make a disclosure of information which the person obtained in confidence in the course of that activity, if the disclosure is of public interest.

(2)

For purposes of subsection (1), a disclosure which is made to a law enforcement agency or to an appropriate public entity shall be deemed to be made in the public interest.

(3)

A person shall make a disclosure under subsection (1) or (2) where such person has reasonable belief in the veracity of the information.

(4)

Any person who provides false information maliciously intended to injure another person commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.

(5)

Disclosure of information under subsection (1) and (2) includes information on—

(a)

violations of the law, including human rights violations;

(b)

mismanagement of funds;

(c)

conflict of interest;

(d)

corruption;

(e)

abuse of public office; and

(f)

dangers of public health, safety and the environment.

(6)

For the purpose of this section, a person is penalized if the person is dismissed, discriminated against, made the subject of reprisal or other form of adverse treatment or is denied any appointment, promotion or advantage that otherwise would have been provided or any other personnel action provided under the law relating to whistle blower, and the imposition of any such penalty in contravention of this section shall be actionable as a tort.

(7)

Any term of any settlement arising from a claim under this section, insofar as it purports to impose an obligation of confidentiality on any party to the settlement in respect of information which is accurate and which was or was proposed to be disclosed, shall be unenforceable.

(8)

In any proceedings for an offence for contravention of any statutory prohibition or restriction on the disclosure of information, it shall be a defence to show that—

(a)

in the circumstances, the disclosure was in the public interest; and

(b)

where the offence is alleged to have been committed by a public officer or Government contractor and involves the disclosure of information obtained by the person in the person’s position as such, the defendant had, before making the disclosure, complied with the provisions of subsection (3).

17.
Management of records
(1)

In this section, “records” means documents or other sources of information compiled, recorded or stored in written form or in any other manner and includes electronic records.

(2)

Every public entity shall keep and maintain—

(a)

records that are accurate, authentic, have integrity and useable; and

(b)

its records in a manner which facilitates the right of access to information as provided for in this Act.

(3)

At a minimum, to qualify to have complied with the duty to keep and maintain records under subsection (2), every public entity shall—

(a)

create and preserve such records as are necessary to document adequately its policies, decisions, procedures, transactions and other activities it undertakes pertinent to the implementation of its mandate;

(b)

ensure that records in its custody, including those held in electronic form, are maintained in good order and condition; and

(c)

not later than three years from the date from which this Act begins to apply to it, computerize its records and information management systems in order to facilitate more efficient access to information.

18.
Offence of alteration, defacement, blocking, erasure, etc
(1)

Where an application to access information has been made to a public entity under section 8 and the applicant would have been entitled, subject to payment of any fee, to provision of any information in accordance with that section, any person to whom this section applies commits an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public entity, with the intention of preventing the disclosure by that entity of all, or any part, of the information provision of which the applicant would have been entitled.

(2)

Subsection (1) applies to the public entity and to any person who, is employed by, is an officer of, or is subject to the direction of, the public entity.

(3)

A person convicted of an offence under subsection (1) shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both.

19.
Defamatory matter in information released

Where any information provided by a public entity or private body to an applicant under section 11 was supplied to the public entity or private body by a third person, the publication to the applicant of any defamatory matter contained in the information shall be privileged unless the publication is shown to have been made with malice.

PART V — CONFERMENT ON THE COMMISSION OF OVERSIGHT AND ENFORCEMENT FUNCTIONS AND POWERS
20.
Role of the Commission
(1)

The Commission is hereby granted the powers of oversight and enforcement of this Act.

(2)

In the performance of its functions under this Act, the Commission shall be guided by the national values and principles of the Constitution.

(3)

The Commission shall designate one of the Commissioners as “Access to Information Commissioner” with specific responsibility of performing the functions assigned to the Commission under this Act.

21.
Functions of the Commission
(1)

The functions of the Commission shall be to—

(a)

investigate, on its initiative or upon complaint made by any person or group of persons, violation of the provisions of this Act;

(b)

request for and receive reports from public entities with respect to the implementation of this Act and of the Act relating to data protection and to assess and act on those reports with a view to assessing and evaluating the use and disclosure of information and the protection of personal data;

(c)

develop and facilitate public education awareness and develop programmes on right to access to information and right to protection of personal data;

(d)

work with public entities to promote the right to access to information and work with other regulatory bodies on promotion and compliance with data protection measures in terms of legislation;

(e)

monitor state compliance with international treaty obligations relating to freedom of and right of access to information and protection of personal data;

(f)

hear and determine complaints and review decisions arising from violations of the right to access to information;

(g)

promote protection of data as provided for under this Act or the Constitution; and

(h)

perform such other functions as the Commission may consider necessary for the promotion of access to information and promotion of data protection.

(2)

The Commission shall have all the powers as are provided for under this Act, its constitutive Act and the Constitution as are necessary for the performance of its functions under this Act.

(3)

The decisions of the Commission shall be binding on the national and county governments.

22.
Inquiry into complaints
(1)

A person wishing to lodge a complaint under this Act shall do so orally or in writing to the secretary or such other person as may be duly authorized by the Commission for that purpose.

(2)

A complaint lodged under subsection (1) shall be in such form and contain such particulars as the Commission may, from time to time, prescribe.

(3)

Upon receipt of a complaint under subsection (1), the Commission may—

(a)

call for information or a report regarding such complaint from the public entity or any other body within such reasonable time as may be specified by the Commission and—

(i) if the information or report called for is not received within the time stipulated by the Commission, the Commission may proceed to inquire into the complaint without such information or report; and
(ii) if on receipt of the information or report the Commission is satisfied either that no further action is required or that the required action has been initiated by the public entity, the Commission shall, in writing, inform the complainant accordingly and take no further action; or
(b)

without prejudice to paragraph (a), initiate such inquiry as it considers necessary, having regard to the nature of the complaint.

23.
Powers of the Commission
(1)

In the performance of its functions under this Act, the Commission shall have the power to—

(a)

issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission;

(b)

question any person in respect of any subject matter under investigation before the Commission; and

(c)

require any person to disclose any information within such person’s knowledge relevant to any investigation by the Commission.

(2)

The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order—

(a)

the release of any information withheld unlawfully;

(b)

a recommendation for the payment of compensation; or

(c)

any other lawful remedy or redress.

(3)

A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty-one days from the date the order was made.

(4)

An order of the Commission under subsection (2) may be filed in the High Court by any party thereto in such manner as the Commission may, in regulations made in consultation with the Chief Justice, prescribe and such party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order.

(5)

If no appeal is filed under subsection (3), the party in favour of whom the order is made by the Commission may apply ex-parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the High Court to the like effect.

(6)

Public entities and relevant private bodies shall provide to the Commission such reports as required by the Act.

(7)

The Commission shall, in consultation with the public, develop and publicize guidelines detailing the reporting requirements including the manner, means and timeframes that apply to public entities and relevant private bodies.

(8)

The Commission may request any further information from the public entity or the relevant private body to facilitate and enhance monitoring at any time and may issue an order compelling the provision of such further information.

24.
Powers relating to investigation
(1)

The Commission may, for the purpose of conducting any investigation pertaining to an inquiry, utilize the services of any public officer or investigation agency of the Government and where a public officer is so utilized under this subsection, the Commission shall pay such expenses as may be incurred by the public officer or agency for the service rendered.

(2)

For the purpose of investigating any matter pertaining to an inquiry, a public servant or agency whose services are utilized under subsection (1) may, subject to the direction and control of the Commission—

(a)

summon and enforce the attendance of any person for examination;

(b)

require the discovery and production of any information;

(c)

subject to the provisions of this Act, requisition any public records or copy thereof from any public officer; and

(d)

take a statement under oath in relation to any investigation it is undertaking.

(3)

The provisions of section 23 shall apply in relation to any statement made by a person before any public officer or agency whose services are utilized under subsection (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.

(4)

The public officer or agency whose services are utilized under subsection (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission in that behalf.

(5)

The Commission shall satisfy itself on the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under subsection (4) and for that purpose, the Commission may make such inquiry, including the examination of any person who conducts or assists in the investigation, as it considers necessary.

PART VI — PROVISIONS ON DELEGATED POWERS
25.
Regulations
(1)

The Cabinet Secretary may, in consultation with the Commission, make regulations, prescribing anything required by this Act to be prescribed or generally for the better carrying into effect the provisions of this Act.

(2)

Without prejudice to the generality of subsection (1), the regulations may provide for—

(a)

the manner in which applications under this Act shall be made;

(b)

the form in which information requested under this Act shall be supplied;

(c)

the making of an application for personal information by representatives of the person to whom the information relates;

(d)

the measures to be taken by public entities to facilitate the exercise by persons of their rights under this Act;

(e)

the measures to be taken by public entities to ensure that adequate records are created and maintained by the entities;

(f)

the procedures for the making of an application by a complainant for the review by the Commission, of a decision made by a public entity relating to access to information;

(g)

the procedure to be followed by a public entity in consulting with a third party before giving access to information obtained by it from that party;

(h)

the procedures requiring a public entity to ensure that personal information is accurate;

(i)

compensation to be sought by an individual who has suffered damage as a result of the holding of inaccurate information about the individual’s personal affairs by a public entity;

(j)

the records that public entities shall be required to keep; or

(k)

such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.

(3)

For the purposes of Article 94 (6) of the Constitution—

(a)

the purpose and objective of the delegation under this section is to enable the Cabinet Secretary to make regulations for better carrying into effect the provisions of this Act;

(b)

the authority of the Cabinet Secretary to make regulations under this Act shall be limited to bringing into effect the provisions of this Act and fulfilment of the objectives specified under this section;

(c)

the principles and standards applicable to the delegated power referred to under this section are those found in—

(i) the Statutory Instruments Act, No. 23 of 2013;
(ii) the Interpretation and General Provisions Act, Cap 2.
(iii) the general rules of international law as specified under Article 2(5) of the Constitution; and
(iv) any treaty and convention ratified by Kenya under Article 2(6) of the Constitution.
PART VII — MISCELLANEOUS PROVISIONS
26.
Annual reports
(1)

The Commission shall submit an annual report to Parliament and may, at any time, submit special reports to the Cabinet Secretary on any matter relating to any of its functions.

(2)

The annual report submitted by the Commission under subsection (1) shall include an overall assessment by the Commission of the performance of the Government with regard to access to information during the period under review.

(3)

The Cabinet Secretary shall lay the annual report of the Commission before Parliament within two months of receipt thereof, with any comments thereon which the Cabinet Secretary considers necessary.

(4)

The Cabinet Secretary shall be required, in every year, to report to Parliament the steps which the Government has taken in implementing recommendations made in the Commission’s reports.

27.
Reports by public entities

On or before the 30
th
day of June of each year, every public entity shall submit to the Commission a report covering the preceding year, which shall include—

(a)

the number of requests for information received by the entity and the number of requests processed;

(b)

the number of determinations made by the authority not to comply with the requests for information under section 8, and the main grounds for such determinations;

(c)

the average number of days taken by the entity to process different types of requests;

(d)

the total amount of fees collected by the public entity while processing requests; and

(e)

the number of full-time staff of the public entity devoted to processing requests for information and the total amount expended by the entity for processing such requests.

28.
Offences and penalties
(1)

Any person who knowingly discloses exempt information in contravention of this Act commits an offence and is liable, on conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or both.

(2)

It shall be a defence to a charge under subsection (1) that the exempt information disclosed was already in the public domain at the time of disclosure.

(3)

An information access officer who—

(a)

refuses to assist a requester who is unable to write to reduce the oral request to writing in the prescribed form and provide a copy to the applicant in accordance with section 8(2);

(b)

refuses to accept a request for information;

(c)

fails to respond to a request for information within the prescribed time; or

(d)

fails to comply with the duty to take reasonable steps to make information available in a form that is capable of being read, viewed or heard by a requester with disability in accordance with section 11 (3),

commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or both.

(4)

Any person who—

(a)

charges a fee exceeding the actual costs of making copies of such information and supplying them to the applicant;

(b)

fails to respond to a request for information required for the exercise or protection of a right in accordance with the requirements of this Act;

(c)

fails to respond to a request to correct personal information; or

(d)

it having been ascertained that information held is out of date, inaccurate or incomplete, fails within the prescribed time, or within a reasonable time if no time is prescribed, to correct, destroy or delete the information, or to attach a statement to the information in accordance with section 13,

commits an offence and is liable, on conviction, to a fine not exceeding one hundred thousand shillings, or imprisonment for a term not exceeding six months, or both.

(5)

Any person who is convicted of an offence under section 18(3) after a request has been made for disclosure of the information in question, with the intention of preventing the disclosure of that information in response to that request is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.

(6)

Any relevant private body that fails to make publicly available the name and contact details of its information access officer or officers commits and offence and is liable on conviction to a fine not exceeding five hundred thousand shillings.

(7)

Any relevant private body that is convicted, or any officer of which is convicted of an offence under this Act, or which, although not convicted is in serious breach of this Act may, after a fair hearing, be debarred from entering into any future contract with government under the laws relating to matters of procurement and disposal.

(8)

A person who—

(a)

fails to attend before the Commission in accordance with any summons or order issued under subsection 23(1)(a);

(b)

knowingly gives any false or misleading statement of information to the Commission; or

(c)

causes an obstruction or disturbance in the course of any proceedings before the Commission,

commits an offence and shall be liable, on conviction, to a fine not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding six months, or to both.

(9)

A person shall not be criminally liable for the disclosure or authorisation of the disclosure made in good faith in reliance on this Act.

(10)

A person to whom information is disclosed under this Act, conveys that information to others but who alters the information, or conceals part of the information or misrepresents the information, with intent to deceive, commits an offence, and is liable on conviction to fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both.

29.
Consequential amendments

The written laws identified in the Schedule are amended in the manner identified therein.

SCHEDULE [Section 29]
Records Disposal Act
1.
(1)

This paragraph amends the Records Disposal Act, 4.

(2)

Section 2 of the Act is amended by deleting the words “Chief Archivist” wherever they appear and substituting therefor the expression “Kenya National Archives and Documentation Service and the Commission on Administrative Justice”.

Public Archives and Documentation Service Act
2.
(1)

This paragraph amends the Public Archives and Documentation Service Act, 9.

(2)

Section 5A of the Act is amended by inserting the following new proviso immediately after the word “public” appearing in the last line of subsection (1)—”Provided that the restriction from circulation shall only related to exempt information provided for in section 6”

(3)

The Act is amended in section 6 by deleting subsections (2) and (3).

(4)

Section 7 of the Act is amended by inserting the expression “in consultation with the Commission on Administrative Justice and” immediately before the words “with the approval of the Minister”.

Public Officer Ethics Act, 2003
3.
(1)

This paragraph amends the Public Officer Ethics Act, No. 4 of 2003.

(2)

Section 41 of the Act is amended by inserting the following proviso immediately after the word “both” appearing in the last line—”Provided that the provision of this section as to divulging of information without lawful excuse shall only apply to exempt information provided for in section 6.”

Official Secrets Act
4.
(1)

This paragraph amends the Official Secrets Act, Cap. 187.

(2)

Section 3 of the Official Secrets Act is amended by inserting the following new subsection immediately after subsection (7)—

(8)

The provisions of this section shall apply subject to Article 35 of the Constitution and the law relating to access to information.

Statistics Act, 2006
5.
(1)

This paragraph amends the Statistics Act, No. 4 of 2006.

(2)

Section 11 of the Act be amended by inserting the following new proviso immediately after the word “Act” appearing in the last line—”Provided that the provision of this section as to secrecy shall only apply to exempt information provided for in section 6 of the Freedom of Information Act, 2012.”

 

Acts about Agencies

These are the Acts that prescribe, how the anti-corruption and oversight agencies should be established and operated.

Public Procurement Rules and Bodies

Rules for Procurement – and where to find them

“When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.” This is what Article 227 of the Constitution of Kenya provides as the overall principle on public procurement.

But public procurement is the most susceptible to corruption because there is a lot of tax payer’s money around. Continue reading “Public Procurement Rules and Bodies”

Rules for Public and State Officers

In law, there are always special rules for public and State officers. The rules for State officers are often more strict than those for public officers. So the question is: How are these terms defined? The Constitution of Kenya defines this in Article 260.
Everybody who holds a public office is a public officer. This includes but not limited to; administators in state agencies, teachers in public schools, nurses and doctors in public hospitals. State officers are also public officers. Which means that all provisions for public officers apply to State officers as well.
But the special provisions for State officers only apply to them and not to all public officers. So, who among the public officers are also State officers?

Article 260 lists the State Offices as follows, we quote:

“A State officer is any person holding a State office.”
Which includes the following:
(a)President
(b)Deputy President

(c)Cabinet Secretary

(d)Member of Parliament

(e)Judges and Magistrates

(f)Member of a commission to which Chapter 15 applies

(g)Holder of an independent office to which Chapter 15 applies

(h)Member of a county assembly, governor or deputy governor of a county, or other members of the executive committee of a county government

(i)Attorney-General

(j)Director of Public Prosecutions

(k)Secretary to the Cabinet

(l)Principal Secretary

(m)Chief of the Kenya Defence Forces

(n)Commander of a service of the Kenya Defence Forces

(o)Director General of the National Intelligence Service

(p)Inspector General, and the Deputy Inspectors General, of the National Police Service

(q)An office established and designated as a State office by national legislation

 

For journalists reporting from the Counties primarily paragraph (h) is important: The Members of the County Assembly and the members of the County Executive including the Governor are State Officers.

 

Laws and Rules

Laws related to Good Governance and corruption in Kenya

In most cases these laws are copied from kenyalaw.org on a date which is given on the top of the respective page. Please notify us if the laws have been amended after that date. Also note that not all the internal links on the law pages do work. Some other links refer to other laws on kenyalaw.org .