National Gender and Equality Commission Act

The Act may be cited as the National Gender and Equality Commission Act, 2011.

Provides definitions of terms used in the Act (e.g. “Cabinet Secretary”, “Commission”, “gender”, “person with disability”) and states that, until after the first elections, “Cabinet Secretary” is to be construed as “Minister”.

Sets qualification requirements and disqualifications for appointment of the chairperson and members, including educational, experience and constitutional requirements and a list of disqualifying statuses.

Sets a timed multi-step procedure for filling vacancies on the Commission, including convening a selection panel, panel membership, advertising and shortlisting applicants, presidential nomination, National Assembly consideration, appointment by the President, gender/regional/disability representation rules, and limited transitional variations and extensions.

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

The chairperson must convene the Commission's first meeting within seven days of members' appointment, must preside over meetings, be the spokesperson, and supervise and direct the Commission; the vice-chairperson must exercise those powers if the chairperson is vacant or unable to act.

The chairperson and members of the Commission must be appointed for a single six-year term (no re-appointment) and must serve full-time.

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

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

A member appointed to fill a vacancy serves a six-year term and is not eligible for re-appointment.

The Commission may, from time to time, establish committees to better carry out its functions.

The Commission's business and affairs must be conducted according to the Second Schedule, and the Commission may regulate its own procedure except as provided in the Second Schedule.

The Salaries and Remuneration Commission must determine the salaries, allowances and other terms and conditions of service for the chairperson and members of the Commission.

The secretary shall be the Commission's chief executive, head of the secretariat, responsible to the Commission, and shall hold office for five years with eligibility for one five-year re-appointment; the appointment is through a competitive recruitment process and subsection (2) lists qualification requirements.

Specifies grounds for removal of the secretary (incapacity, gross misconduct, incompetence or neglect, violation of the Constitution, or other service-related grounds) and requires notice of allegations and an opportunity to present a defence.

The Commission may appoint staff; appointed staff shall serve on terms the Commission (with Salaries and Remuneration Commission in consultation) determines; the Government may second public officers; seconded officers are deemed Commission officers and subject to its direction and control.

The Commission must keep its common seal in custody as it directs and must not use it except on the Commission's order.

Actions taken by a member, officer, employee or agent of the Commission while executing the Commission’s functions, powers or duties and done in good faith affect personal liability for any action, claim or demand.

The Commission has the power to issue summons when it deems necessary to fulfil its mandate.

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

Establishes the National Gender and Equality Commission as a Commission.

The Commission, as successor Commission, shall be a Commission under Chapter Fifteen of the Constitution and shall have the status and powers of a Commission under that Chapter.

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 principles include "the diversity of the people of Kenya."

The Commission must promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution.

The Commission must consist of a chairperson and four other members appointed in accordance with the Constitution and this Act.

Section 28 gives the Commission powers to employ government officers or agencies for investigations, to summon persons, demand documents, requisition public records (subject to the Constitution and written law), and requires employed officers/agencies to investigate and report; the Commission must verify such reports and may further inquire.

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

This section limits the Commission's jurisdiction in respect of a matter pending before any court or judicial tribunal.

The Commission may investigate or carry out an inquiry into any matter despite a provision in any written law that the action is final or cannot be appealed, challenged, reviewed, questioned or called in question.

Only the person aggrieved may make a complaint to the Commission; if that person cannot act, a family member or other suitable person may; alternatively a member of the National Assembly may complain with the aggrieved person's consent.

Sets how complaints alleging discrimination may be lodged and what the Commission must and may do in relation to such complaints.

Section 34. Discretion not to investigate Section there are in existence adequate remedies under any written law or administrative practice; or

If the Commission decides not to investigate, or discontinues an investigation, it 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 notify the administrative head of the relevant State organ, public office or organization of the intended investigation.

The hearings of the Commission during an inquiry may be open to the public.

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

Persons who give evidence before the Commission are entitled not to be subjected to civil or criminal proceedings for statements made while giving evidence, except where the statement constitutes giving false evidence.

If an inquiry into a discrimination complaint reveals a criminal offence, the Commission must refer the matter to the Director of Public Prosecutions or another relevant authority, or take other action it deems fit against the person(s) concerned.

After concluding an investigation or inquiry, the Commission must make a report to the State organ, public office or organization concerned; the Commission may require that entity to submit a report within a specified period on steps taken to implement recommendations; if recommendations are not implemented in time, the Commission may submit the report to Parliament.

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

If, after an investigation, the Commission believes there is evidence of misconduct by a person or officer investigated under this Act, the Commission must report the matter to the appropriate authority.

The Commission's funds are monies allocated by Parliament.

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

The Commission must prepare, approve and submit annual estimates of its revenue and expenditure before each financial year; it may create funds for future or contingent liabilities.

The Commission must ensure that proper books and records of account are kept for its income, expenditure, assets and liabilities.

The Commission must open and maintain bank accounts necessary to perform its functions.

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

Persons in charge of prisons, remand or mental institutions, or institutions with patients or inmates must ensure correspondence from those persons to the Commission is transmitted in confidence and kept sealed.

Without justification or lawful excuse, obstructing, hindering or threatening the Commission or a member of staff acting under this Act is an offence.

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

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

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

Complaints made to the Kenya National Human Rights and Equality Commission and the former National Commission on Gender and Development immediately before this Act commenced are deemed to have been made to the Commission at commencement.

The Commission must be bound by all contracts, including any contracts of service that were in force when this Act commenced and to which the Kenya National Human Rights and Equality Commission was a party.

Persons who were members of the former National Commission on Gender and Development and who became members of the Kenya National Human Rights and Equality Commission shall become members of the Commission upon commencement of this Act for their unexpired term.

The National Commission on Gender and Development Act, 2003 (No. 13 of 2003) is repealed.