Official Secrets Act

This Act may be cited as the Official Secrets Act.

Jurisdiction: Kenya
Instrument: Act or statute
Citation: Cap. 187
Version: 31 Dec 2022
Language: en
Official source: View official record ↗

Source attribution: Source: Kenya Law

Statute overview

About this statute

This Act may be cited as the Official Secrets Act. Section 2 defines types of 'place' relevant to the Act (subsections (1)(a)-(c)) and clarifies meanings of actions such as communicating, obtaining, retaining and transfer (subsection (2)(a)-(c)). Section 3 lists multiple acts by any person (approaching or entering prohibited places, photographing prohibited places without authority, communicating or retaining sensitive documents or information, and related conduct) that are offences and, in specified cases, are punishable by imprisonment for a term not exceeding five years. A person must not, without lawful authority, use or wear armed forces, police or other official uniforms (or uniforms resembling them) or falsely represent themselves as entitled to wear such uniforms. Any person who, in the vicinity of a prohibited place, obstructs, knowingly misleads, interferes with or impedes a police officer or a member of the armed forces on guard or similar duty shall be guilty of an offence.

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Provisions of Official Secrets Act

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Part I

PRELIMINARY

1
PRELIMINARY - 1. Short title
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This Act may be cited as the Official Secrets Act.

Section 1. Short title Section This Act may be cited as the Official Secrets Act.
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PRELIMINARY - 2. Interpretation
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Section 2 defines types of 'place' relevant to the Act (subsections (1)(a)-(c)) and clarifies meanings of actions such as communicating, obtaining, retaining and transfer (subsection (2)(a)-(c)).

Section 2. Interpretation Section 2(1)(a) any place belonging to or occupied or used by or on behalf of the Government which is used for or in connexion with the maintenance of public security, including arsenals, establishments or stations of the armed forces or the police, factories, dockyards, mines, minefields, camps, ships, aircraft, telegraph, telephone, wireless or signal stations or offices, and places used for the purpose of building, repairing, making or storing any munitions of war or any plans or documents relating thereto, or for the purposes of getting any metals, oil or minerals for use in time of war or emergency; or Section 2(1)(b) any place not belonging to the Government where any munitions of war or any plans or documents relating thereto are being made, repaired, received or stored under contract with, or with any person acting on behalf of, the Government; or Section 2(1)(c) any place that is for the time being declared by the Cabinet Secretary, by order, to be a prohibited place on the ground that information with respect thereto or damage thereto would be prejudicial to the safety and interests of the Republic; Section 2(2)(a) expressions referring to communicating or receiving include any communicating or receiving whether in whole or in part and whether the plan, article, document or information itself or only the substance, effect or description thereof is communicated or received; Section 2(2)(b) expressions referring to obtaining or retaining any plan, article or document include copying or causing to be copied the whole or any part of any plan, article or document; and Section 2(2)(c) expressions referring to the communication of any plan, article or document include the transfer or transmission of the plan, article or document.

Part II

PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC

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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 3. Acts prejudicial to Republic
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Section 3 lists multiple acts by any person (approaching or entering prohibited places, photographing prohibited places without authority, communicating or retaining sensitive documents or information, and related conduct) that are offences and, in specified cases, are punishable by imprisonment for a term not exceeding five years.

Section 3. Acts prejudicial to Republic Section 3(1)(a) approaches, inspects, passes over, is in the neighbourhood of or enters a prohibited place; or Section 3(1)(b) makes any plan that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power or disaffected person; or Section 3(1)(c) obtains, collects, records, publishes or communicates in whatever manner to any other person any code word, plan, article, document or information which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power or disaffected person, shall be guilty of an offence. Section 3(2) Any person who takes a photograph of a prohibited place or who takes a photograph in a prohibited place, without having first obtained the authority of the officer in charge of the prohibited place, shall be guilty of an offence. Section 3(3)(a) relates to or is used in a prohibited place or anything in a prohibited place; or Section 3(3)(b) has been made or obtained in contravention of this Act; or Section 3(3)(c) has been entrusted in confidence to him by any person holding office under the Government; or Section 3(3)(d) uses the code word, plan, article, document or information; or Section 3(3)(d)(i) uses the code word, plan, article, document or information; or Section 3(3)(d)(ii) retains the plan, article or document in his possession or under his control when he has no right so to retain it or when it is contrary to his duty so to retain it, or fails to comply with all directions issued by lawful authority with regard to its return or disposal, Section 3(4) Any person who, having in his possession or under his control any plan, article, document or information that relates to munitions of war, communicates it directly or indirectly to any foreign power, or to any other person for any purpose or in any manner prejudicial to the safety or interests of the Republic, shall be guilty of an offence. Section 3(5) Any person who receives any code word, plan, article, document or information, knowing or having reasonable grounds for believing at the time when he receives it, that the code word, plan, article, document or information is communicated to him in contravention of this Act, shall be guilty of an offence, unless he proves that the communication to him of the code word, plan, article, document or information was contrary to his wishes. Section 3(6)(a) communicates the code word, plan, article, document or information to any person, other than a person to whom he is authorized to communicate it or to whom it is his duty to communicate it; or Section 3(6)(b) retains the plan, article or document in his possession or under his control when he has no right so to retain it or when it is contrary to his duty so to retain it, or fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or Section 3(6)(c) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the code word, plan, article, document or information, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years. Section 3(7)(a) allows any other person to have possession of any official document issued for his use alone, or communicates to any other person any code word so issued; or Section 3(7)(b) without lawful authority or excuse, has in his possession any official document or code word issued for the use alone of some person other than himself; or Section 3(7)(c) on obtaining possession of any official document by finding or otherwise neglects or fails to restore it to the person or authority by whom or for whose use it was issued or to a police officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years. Section 3(8) The provisions of this section shall apply subject to Article 35 of the Constitution and the law relating to access to information. [Act No. 31 of 2016 , Sch.]
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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 4. Unauthorized use of uniforms, passes, etc.
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A person must not, without lawful authority, use or wear armed forces, police or other official uniforms (or uniforms resembling them) or falsely represent themselves as entitled to wear such uniforms.

Section 4. Unauthorized use of uniforms, passes, etc. Section uses or wears, without lawful authority, any uniform of the armed forces, any police uniform or any other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive, or falsely represents himself to be a person who is or has been entitled to use or wear any such uniform; or
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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 5. Interference with police officers or armed forces
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Any person who, in the vicinity of a prohibited place, obstructs, knowingly misleads, interferes with or impedes a police officer or a member of the armed forces on guard or similar duty shall be guilty of an offence.

Section 5. Interference with police officers or armed forces Section Any person who in the vicinity of any prohibited place obstructs, knowingly misleads or otherwise interferes with or impedes any police officer, or any member of the armed forces who is engaged on guard, sentry patrol or other similar duty in relation to the prohibited place, shall be guilty of an offence.
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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 6. Production of data
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The Cabinet Secretary may ask the High Court for an order forcing persons who own or control telecommunications apparatus used for cross-border data transmission to produce originals or transcripts of that data and related documents; failure to comply is an offence punishable by a fine up to one million shillings, imprisonment up to one year, or both.

Section 6. Production of data Section 6(1) Where it appears to the Cabinet Secretary that it is in national interest to do so, the Cabinet Secretary may apply to the High Court for an order requiring any person who owns or controls any telecommunications apparatus used for the sending or receipt of any data to or from any place outside Kenya, to produce to the Cabinet Secretary or any person named in the order, the original or transcripts of all such data and all other documents relating to such data. Section 6(2) Any person who fails to comply with a request made under subsection (1) shall be guilty of an offence and liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year, or to both. [Act No. 20 of 2020 , Sch.]
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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 7. Harbouring
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Knowingly harbours a person who is about to commit or has committed an offence under this Act.

Section 7. Harbouring Section knowingly harbours any person whom he knows, or has reasonable grounds for supposing, to be a person who is about to commit or who has committed an offence under this Act; or
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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 8. Attempts, incitements, etc.
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Anyone who attempts, solicits, incites, endeavours to persuade, aids, abets, or does any preparatory act toward committing an offence under this Act commits an offence and is liable to the same punishment as if they had committed it.

Section 8. Attempts, incitements, etc. Section Any person who attempts to commit an offence under this Act, or solicits or incites or endeavours to persuade another person to commit any such offence, or aids or abets or does any act preparatory to the commission of such an offence under this Act, shall be guilty of an offence, whether or not the solicitation, incitement or endeavour succeeds in its purpose, and is liable to the same punishment as if he had committed that offence.
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PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC - 9. Acts committed outside Kenya
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Acts committed outside Kenya are within scope when the offender was a citizen of Kenya at the time of the commission.

Section 9. Acts committed outside Kenya Section where the offender at the time of the commission was a citizen of Kenya;

Part III

PROCEEDINGS FOR OFFENCES

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PROCEEDINGS FOR OFFENCES - 10. Consent to prosecution
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A prosecution for an offence under this Act may be instituted only with the consent of the Director of Public Prosecutions; charged persons may be arrested or remanded even before that consent is obtained, but no further proceedings may be taken until the consent is obtained.

Section 10. Consent to prosecution Section 10(1) A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions. Section 10(2) A person charged with an offence under this Act may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the consent of the Director of Public Prosecutions to the institution of a prosecution for the offence has not been obtained, but no further or other proceedings shall be taken until that consent has been obtained. [Act No. 20 of 2020 , Sch.]
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PROCEEDINGS FOR OFFENCES - 11. Place of offence
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For trial purposes, an offence is treated as having been committed either where it actually happened or at any place in Kenya where the offender is found.

Section 11. Place of offence Section For the purposes of the trial of a person for an offence under this Act, the offence shall be deemed to have been committed either at the place in which it was actually committed or at any place in Kenya in which the offender may be found.
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PROCEEDINGS FOR OFFENCES - 12. Exclusion of public from trial
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A court may order the public to be excluded from whole or part of a hearing on prosecution application if publication of evidence or statements would be prejudicial to the interests of the Republic; passing sentence must take place in public.

Section 12. Exclusion of public from trial Section In addition and without prejudice to any powers that a court may possess to order the exclusion of the public from any proceedings, if in the course of proceedings before the court against any person for an offence under this Act or of the proceedings on appeal, application is made by the prosecution, on the grounds that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the interests of the Republic, that all or any portion of the public shall be excluded during the whole or any part of the hearing, the court may make an order to that effect, but the passing sentence shall in any case take place in public.
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PROCEEDINGS FOR OFFENCES - 13. Presumption concerning communication with agent of foreign power
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When a person is prosecuted under section 3, communication with or attempted communication with an agent of a foreign power is evidence that the accused obtained or attempted to obtain information prejudicial to the Republic's safety or interests.

Section 13. Presumption concerning communication with agent of foreign power Section 13(1) On a prosecution for an offence under section 3 of this Act, the fact that the accused person has been in communication with, or has attempted to communicate with, an agent of a foreign power, whether within or outside Kenya, shall be evidence that he has, for a purpose prejudicial to the safety or interests of the Republic, obtained or attempted to obtain information which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power. Section 13(2)(a) he has, either within or outside Kenya, visited the address of an agent of a foreign power or consorted or associated with such an agent; or Section 13(2)(b) either within or outside Kenya, the name or address of, or any other information regarding, such an agent has been found in his possession, or has been supplied by him to any other person, or has been obtained by him from any other person. Section 13(3) Any address, whether within or outside Kenya, reasonably suspected of being an address used for the receipt of communications intended for an agent of a foreign power, or any address at which such an agent resides, or to which he resorts for the purpose of giving or receiving communications, or at which he carries on any business, shall be deemed to be the address of an agent of a foreign power, and communications addressed to that address to be communications with the agent.
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PROCEEDINGS FOR OFFENCES - 14. Presumption as to purpose prejudicial to safety of Republic
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In prosecutions under this Act alleging an act was done for a purpose prejudicial to the safety or interests of the Republic, it is not necessary to prove that purpose if the circumstances of the case, the person's conduct, or the person's known character as proved show that the purpose was prejudicial to the safety or interests of the Republic.

Section 14. Presumption as to purpose prejudicial to safety of Republic Section Where, on a prosecution of a person for an offence under this Act, it is alleged that he did some act for a purpose prejudicial to the safety or interests of the Republic, it shall not be necessary to show that he committed the act for that purpose if, from the circumstances of the case, or from his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the Republic.
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PROCEEDINGS FOR OFFENCES - 15. Presumption as to communication of information concerning prohibited place
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If a code word, plan, article, document or information relating to or used in a prohibited place (or anything in such a place) is made, obtained, collected, recorded, published or communicated by any person other than someone acting under lawful authority, it is presumed to have been for a purpose prejudicial to the safety or interests of the Republic unless the contrary is proved.

Section 15. Presumption as to communication of information concerning prohibited place Section Where any code word, plan, article, document or information relating to or used in any prohibited place, or anything in such a place, is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, it shall be deemed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the Republic, unless the contrary is proved.
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PROCEEDINGS FOR OFFENCES - 16. Proof of lawful authority or excuse
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The person who alleges lawful authority or an excuse must prove it; the prosecution is not required to prove the absence of such authority or excuse.

Section 16. Proof of lawful authority or excuse Section For the avoidance of doubt, it is hereby declared that the burden of proving lawful authority or excuse shall be upon the person alleging it, and accordingly in any proceedings for prosecution for an offence under this Act it shall not be incumbent on the prosecution to prove the lack of any such authority or excuse.

Part IV

SUPPLEMENTAL

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SUPPLEMENTAL - 17. Arrest without warrant
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A police officer may arrest without a warrant any person found committing or reasonably suspected of committing (or attempting or being about to commit) an offence under this Act.

Section 17. Arrest without warrant Section 17(1) Any person who is found committing an offence under this Act, or who is reasonably suspected of having committed, or of having attempted to commit, or of being about to commit, an offence under this Act, may be arrested by a police officer without a warrant. Section 17(2) Any person arrested under subsection (1) of this section shall be brought before a court within twenty-four hours whether or not the police inquiries are completed.
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SUPPLEMENTAL - 18. Search warrant
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A court may issue a search warrant if satisfied on oath that there are reasonable grounds to suspect an offence under the Act; the warrant authorizes named police officers to enter premises (using force if necessary), search people and seize evidence. In urgent cases, a police officer of or above the rank of Assistant Superintendent may by written order grant the same authority.

Section 18. Search warrant Section 18(1) If a court is satisfied by information on oath that there is reasonable grounds for suspecting that an offence under this Act has been or is about to be committed, it may issue a search warrant authorizing any police officer named therein to enter at any time any premises or place named in the warrant, if necessary by force, and to search the premises or place and every person found therein, and to seize any plan, article, or document, or anything that is evidence of an offence under this Act having been or being about to be committed, that he may find on the premises or place or on any such person, and with regard to or in connexion with which he has reasonable grounds for suspecting that an offence under this Act has been or is about to be committed. Section 18(2) Where it appears to a police officer of or above the rank of Assistant Superintendent that the case is one of great urgency and that in the interests of the Republic immediate action is necessary, he may by a written order under his hand give to any police officer the like authority as may be given by a warrant of a court under this section.
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SUPPLEMENTAL - 19. Duty to give information as to commission of certain offences
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The Director of Public Prosecutions may authorize a gazetted police officer to require a person to give information and to attend; any person required who fails to comply or knowingly gives false information commits an offence punishable by up to six months' imprisonment or a fine not exceeding five thousand shillings, or both.

Section 19. Duty to give information as to commission of certain offences Section 19(1) Where the Director of Public Prosecutions is satisfied that there is reasonable ground for suspecting that an offence under this Act has been, or is about to be, committed and for believing that some person is able to furnish information with regard thereto, he may authorize a gazetted police officer to require that person to give any information in his power relating to the offence or suspected offence and, if so required and on tender of his reasonable expenses, to attend at such reasonable time and place as may be specified by the gazetted police officer. Section 19(2) Any person who, having been required in pursuance of an authorization given under subsection (1) of this section to give information or to attend at a specified time and place, fails to comply with the requirement, or knowingly gives false information, shall be guilty of an offence and be liable to imprisonment for a term not exceeding six months or to a fine not exceeding five thousand shillings, or to both such imprisonment and such fine. [Act No. 20 of 2020 , Sch.]
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SUPPLEMENTAL - 20. General penalty
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Anyone guilty of an offence under this Act for which no penalty is provided may be sentenced to imprisonment for up to fourteen years.

Section 20. General penalty Section Any person who is guilty of an offence under this Act for which no penalty is specifically provided shall be liable to imprisonment for a term not exceeding fourteen years.

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