Kenya National Commission on Human Rights Act

This Act may be cited as the Kenya National Commission on Human Rights Act.

Section 2 names: the National Youth Service; the Kenya Wildlife Service; and any other Disciplined Service established by any written law. It also states "Section 2(2) Spent."

Sets qualifications for appointment of the Chairperson and members, listing education, experience and Chapter Six requirements, and disqualifications.

Sets the procedure and timelines for appointing the Commission's Chairperson and members: the President must convene a selection panel after a vacancy; the panel must invite applications, shortlist candidates and forward names; the President nominates (in certain transitional circumstances) and the National Assembly considers and the President appoints approved nominees.

The Chairperson, members and the secretary must each make and subscribe, before the Chief Justice, the oath or affirmation in the First Schedule.

The Chairperson must convene the Commission's first meeting within seven days of members' appointment; members must elect a vice-Chairperson at that meeting. The Chairperson has powers to preside, speak for, and supervise the Commission, and the vice-Chairperson must act if the Chairperson is vacant or unable.

The Chairperson and members of the Commission are appointed for a single six-year term, cannot be re-appointed, and must serve fulltime.

The President must notify every resignation, vacancy or termination in the Gazette within seven days.

The Chairperson or a member of the Commission may be removed from office in accordance with Article 251 of the Constitution.

If a vacancy arises in the Commission under sections 15 or 16, the normal appointment procedure applies; a member appointed to fill such a vacancy serves for six years and is not eligible for re-appointment.

The Commission may establish committees to help carry out its functions.

The business and affairs of the Commission shall be conducted in accordance with the Second Schedule; except as provided there, the Commission may regulate its own procedure.

Salaries, allowances and other terms of service for the Chairperson and members of the Commission are to be determined by the Salaries and Remuneration Commission.

The appointment of the secretary shall be through a competitive recruitment process.

The secretary may be removed from office for inability due to physical or mental incapacity; gross misconduct or misbehaviour; incompetence or neglect of duty; violation of the Constitution; or any other ground justified under the terms and conditions of service; and before removal the secretary must be given sufficient notice of the allegations and an opportunity to present a defence.

The Commission may appoint staff and determine their terms; staff must serve on terms the Commission (with the Salaries and Remuneration Commission) determines; the Government may second public officers on request; seconded officers are treated as officers of the Commission and subject only to its direction during secondment.

The Commission must direct the custody of its common seal; the seal may be used only on the Commission's order; an affixed and duly authenticated seal is judicially and officially noticed and orders or authorizations are presumed unless proved otherwise.

Members, officers, employees and agents of the Commission are not personally liable for acts done in good faith while carrying out the Commission's functions, powers or duties.

The Commission may issue summons as it deems necessary for the fulfillment of its mandate.

A court has the power to issue summonses or other orders requiring people to attend before the Commission and to produce documents or records relevant to a Commission investigation.

A Commission called the Kenya National Commission on Human Rights is established.

The Commission is a commission under Chapter Fifteen of the Constitution and shall have the status and powers of a Commission, pursuant to Article 59(5)(c).

The Commission has the power to acquire, hold, charge and dispose of movable and immovable property.

The Commission must have its headquarters in the capital city and may establish branches anywhere in Kenya.

Guiding principle: "the diversity of the people of Kenya."

The Commission promotes respect for human rights and develops a culture of human rights in the Republic.

The Commission must be composed of a Chairperson and four other members appointed under the Constitution and this Act.

Section 28 gives the Commission permission to employ government public officers or investigative agencies to assist investigations, requires those officers/agencies to investigate and report, and requires the Commission to verify reports and allows it to make further inquiries including examining investigators.

The Commission must attempt to resolve matters by conciliation, mediation or negotiation; if those methods fail and the Commission finds unjust or unreasonable discrimination it must make recommendations.

Limitation of jurisdiction: a matter pending before any court or judicial tribunal.

The Commission may investigate or carry out an inquiry into any matter even if another written law says the action is final or cannot be appealed or challenged.

A complaint to the Commission may only be made by the person aggrieved or by someone acting on their behalf as defined in subsection (2).

Section 33 allows a person to lodge a human-rights complaint orally or in writing and sets out how the Commission must record, request information, inquire, prescribe complaint form, and inform complainants when no further action is taken.

There is a discretion not to investigate where adequate remedies exist under any written law or administrative practice.

If the Commission decides not to investigate or discontinues an investigation, the Commission must inform the complainant in writing of that decision and the reasons as soon as reasonably practicable.

The Commission must give any person, State organ, public office or organization against whom an adverse finding or recommendation is made an opportunity to make representations before including the finding in its report.

Before starting an investigation under the Act, the Commission must give notice of the intended investigation to the administrative head of the State organ, public office or organization concerned.

Hearings of the Commission during an inquiry must be open to the public, unless the Commission otherwise decides.

If the inquiry is likely to prejudice a person or the Commission considers it necessary to inquire into a person's conduct, that person must be given an opportunity to appear before the Commission and give evidence in their defence.

A person’s statement made while giving evidence before the Commission shall not subject that person to civil or criminal proceedings, except if the statement is false.

When an inquiry shows a criminal offence, the Commission may refer the matter to the Director of Public Prosecutions or another relevant authority or take other action it deems fit against the concerned person(s).

After concluding an investigation or inquiry, the Commission must make a report to the state organ, public office or organization concerned; the report must include findings, recommendations and proposed actions; the Commission may require the investigated entity to report back on implementation within a specified period, and if recommendations are not implemented the Commission must report the failure to the National Assembly.

The Commission must inform the complainant in writing of the results of the investigation.

If, after investigating, the Commission believes there is evidence someone investigated is guilty of misconduct, the Commission must report the matter to the appropriate authority.

The Commission's funds are monies allocated by Parliament for the purposes of the Commission.

The Commission's financial year is the twelve-month period ending on 30 June.

The Commission must prepare annual estimates of its revenue and expenditure before each financial year and must approve them and submit them to the Cabinet Secretary for tabling in the National Assembly.

The Commission must keep proper books and records of account of its income, expenditure, assets and liabilities.

The Commission must open and maintain bank accounts necessary for the performance of its functions.

The Commission and its staff must keep confidential matters they learn in their duties; they generally may not be called to give evidence about such matters (subject to Article 35 of the Constitution); the Commission may disclose such matters in its reports when needed to support its findings and recommendations.

People in charge of prisons, remand or mental institutions, or institutions where persons are patients or inmates must ensure that any correspondence from those persons to the Commission is transmitted in confidence and that such written communication remains sealed.

It is an offence to, without justification or lawful excuse, obstruct, hinder or threaten the Commission or a member of staff acting under this Act.

The Commission must prepare an annual report containing specified contents, submit it to the President and Parliament within six months after the end of the year it covers, and publish it in the Gazette and in at least one national newspaper; the President, National Assembly or Senate may require ad hoc reports.

The Cabinet Secretary must prepare an annual report on implementation of human rights and submit it to Parliament; if any recommendations are not implemented the Cabinet Secretary must report reasons to the National Assembly.

Parliament must, five years after the Act commences, review the Commission's mandate to consider amalgamating it with the commission responsible for administrative justice.

The Commission may make regulations to better carry into effect the provisions of this Act.