National Cohesion and Integration Act

The Act's short title is "National Cohesion and Integration Act."

This section provides definitions of terms used in the Act (for example "Cabinet Secretary", "Commission", "employment", "establishment", "financial year", and others).

Section 3 defines ethnic discrimination, including less favourable treatment and provisions that disproportionately disadvantage persons of a particular ethnic group; it equates segregation on ethnic grounds with less favourable treatment and excludes treatment based on proven false allegations not made in good faith.

Section concerns discrimination by way of victimization where a person brought proceedings against the discriminator or any other person under this Act.

When comparing a person of a particular ethnic group with a person not of that group under sections 3 and 4, the relevant circumstances in the two cases must be the same or not materially different.

Harassment on the basis of ethnicity includes violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, and such conduct is regarded as having that effect only if, considering all circumstances (including the perception of the other person), it should reasonably be considered as having that effect.

It is unlawful for a qualifying body, licensing authority, planning authority, public authority, employment agency, educational establishment or body offering training to discriminate against prospective and current clients in the provision of services, subject to exceptions in subsection (2).

It is unlawful for any public officer, while in charge of public resources and without justification, to distribute resources in an ethnically inequitable manner.

Section 12 prohibits persons from discriminating in property ownership, management, disposal, access to benefits or facilities, eviction and from subjecting applicants or occupiers of such premises to harassment.

Section 13 prohibits persons from engaging in various forms of hate speech and sets penalties of up to one million shillings, or up to three years' imprisonment, or both.

Allows a person to give non-Kenyans access to education or training benefits on non-racial grounds if it appears they will not remain in Kenya after training.

Public establishments must seek to reflect Kenya's diversity in staff; public establishments must not have more than one third of staff from the same ethnic community; employers must not subject employees or applicants to harassment; subsections (4) and (5) generally do not apply to private enterprise employment (with specified exceptions).

Lists circumstances in the employment field that are exceptions to discrimination, including genuine and determining occupational requirements, appropriateness in particular cases, roles in cultural entertainment requiring a person of a particular ethnic group (including specific items of visual art or images), and personal services promoting welfare that can most effectively be provided by a person of that ethnic group.

Organizations covered by this section must not discriminate in admission, membership terms, access to benefits or services, deprivation or variation of membership, subject members to other detriments, or subject applicants or members to harassment; an exception applies where membership is limited by religion or profession.

Establishes the National Cohesion and Integration Commission and grants it corporate powers including suing and being sued, acquiring and disposing of property, borrowing and lending money, and performing other lawful acts for carrying out the Act.

The Commission's headquarters shall be in Nairobi; the Commission may establish branches anywhere in Kenya and may hold its sittings at any place in Kenya (subject to other written law on meetings).

Section 17 describes Commission membership: a chairperson nominated by the President and approved by the National Assembly; seven commissioners nominated by the President and approved by the National Assembly; the commissioners must elect a vice-chairperson at their first meeting; the chairperson and vice-chairperson must not be of the same gender.

The chairperson has the power to preside over Commission meetings and to act as the Commission's spokesperson.

Sets qualifications and disqualifications for appointment as a Commissioner: required citizenship, education and experience, and compliance with Chapter Six; lists categories of persons who are disqualified.

The chairperson and members of the Commission serve a single six-year term and cannot be re-appointed.

The Commission must appoint a Secretary; the Secretary is responsible for administration, day-to-day management and staff control, and must perform other functions assigned by the Commission.

The Chairperson, the commissioners and the Secretary must each make and subscribe before the Chief Justice the oath or affirmation in the Second Schedule.

The President must notify every vacancy in the Gazette within seven days of its occurrence.

Sets procedures for applying to remove a commissioner, requires the Cabinet Secretary to forward applications within seven days to the relevant Parliamentary Committee, allows the President to suspend or lift suspension of the Chairperson or commissioner, and provides for removal if two thirds of National Assembly members vote to remove on the Parliamentary Committee's recommendation.

When a commissioner's office becomes vacant due to death, disability, resignation or removal, the President must appoint a replacement from the short‑listed persons considered by the National Assembly; that replacement serves the remainder of the former commissioner's term.

Establishes the Commission to facilitate and promote equality of opportunity, good relations, harmony and peaceful co-existence between persons of different ethnic and racial communities and lists functions including promoting elimination of discrimination; discouraging advocacy of discrimination; promoting tolerance and participation; planning and coordinating education and training for public awareness; promoting respect for diversity; promoting equal access to services; promoting dispute resolution; investigating complaints and matters on its own accord; identifying barriers to harmonious relations and recommending remedies; advising on strategic priorities and legislative or administrative review; initiating policy and legal reform; monitoring implementation and recommending penalties; issuing notices to stop violations; undertaking research and reporting to the National Assembly.

The Commission has the powers necessary for performing its functions, is not subject to direction or control by others, must publish names of persons undermining ethnic relations, may associate with bodies inside or outside Kenya, controls its assets, may receive grants and disburse funds, and may open bank accounts for its funds.

The Commission has the power to summon witnesses, require production of books, plans and other documents, and examine witnesses and parties on oath.

Summons must follow the form specified by the Commission and must be signed by the Secretary.

People summoned to appear before the Commission must obey the summons and are entitled to the same witness expenses as for attending the High Court in a civil trial.

The Commission shall regulate its own procedure.

The Commission may, by resolution, delegate any of its powers, functions or duties to a committee or to a member, officer, employee or agent of the Commission.

The Cabinet Secretary must, in consultation with the National Treasury, determine the remuneration and allowances of the members of the Commission.

Section 33 lets the Commission appoint staff on terms it decides; requires ethnic and gender balance to guide appointments; allows the Government to second public officers to the Commission on request; and makes seconded officers subject to the Commission and deemed officers during secondment.

The common seal of the Commission must be kept in custody directed by the Commission and may not be used except on the Commission's order.

Members, officers, employees and agents of the Commission are exempt from personal liability for acts done in good faith while executing the Commission's functions, powers or duties.

The Commission remains liable to pay compensation for personal or proprietary damage to any person caused by its exercise of powers or by failure (wholly or partially) of works.

Monies appropriated by Parliament for the purposes of the Commission are funds of the Commission.

The Commission must prepare, approve and submit annual revenue and expenditure estimates before each financial year; after Cabinet Secretary approval the Commission must not increase any sums without the Cabinet Secretary's written consent.

The Commission must keep proper books and records of account; the Cabinet Secretary responsible for finance may prescribe the form of the books; the Auditor-General must audit and report on the Commission's accounts under the Public Audit Act.

The Commission may invest its funds in approved securities and may place unneeded moneys on deposit with banks or financial institutions it determines.

The Commission must prepare an annual report each financial year, submit it to the Cabinet Secretary within three months after the end of the year, publish it, and the Cabinet Secretary must transmit it to the National Assembly within thirty days of receipt.

The Commission may at any time submit a special report to the National Assembly through the Cabinet Secretary about any aspect of its functions if it considers, in the national interest, that the matter affects a wide cross section of the populace and could have disastrous consequences if not reported.

It is an offence to utter words or publish utterances intended to incite contempt, hatred, hostility, violence or discrimination on the basis of ethnicity or race; offenders face a fine up to one million shillings or up to five years imprisonment.

Section 63 states: 'Offences Section has made a complaint against any person;'.

Directors and officers of a body corporate shall be deemed guilty of an offence committed by that body.

A contravention of this Act does not create any civil or criminal liability except where this Act expressly provides otherwise.

No person shall record, disclose or communicate information covered by this section except when necessary for performing or in connection with performing a function, duty or power under this Act or any other law.

An act or decision by the Commission cannot be held invalid merely because of a vacancy in membership or a defect or irregularity in a member's appointment.

Protection of persons giving evidence and information

Regulations Section generally for the better carrying into effect any of the provisions of this Act;

This Act binds the Government.