LAWS OF KENYA COMMISSION ON ADMINISTRATIVE JUSTICE ACT NO.
23 OF 2011 Revised Edition 2013 (2011) Published by the National Council for Law Reporting with the Authority of the Attorney General www.kenyalaw.org COMMISSION ON ADMINISTRATIVE JUSTICE ACT No.
23 of 2011 ARRANGEMENT OF SECTIONS Section PART IPRELIMINARY Short title.
PART IIESTABLISHMENT AND STATUS OF COMMISSION Establishment of the Commission.
Status of successor Commission.
Powers of Commission as a body corporate.
Guiding principles of Commission.
Functions of the Commission.
Membership of Commission.
0Qualifications for appointment of chairperson and members.
1Procedure for appointment of chairperson and members.
2Oath of office.
3Powers of the chairperson.
4Tenure of office.
5Vacancy of office of chairperson and members.
6Removal from office.
7Filling of vacancy.
8Committees of the Commission.
9Procedures of the Commission.
0Terms and conditions of service.
1Appointment of secretary.
2Removal of secretary.
3Appointment of staff.
4The common seal of the Commission.
5Protection from personal liability.
6General powers of Commission.
7Powers of a court.
PART IIIINVESTIGATIONS BY THE COMMISSION 8Powers relating to investigation.
9Jurisdiction in investigations.
0Limitation of jurisdiction.
1Power not limited by other provisions.
3Form of complaint.
4Discretion not to investigate.
5Notice if complaint not investigated.
6Representations if adverse findings.
7Notice of investigation to organization.
8Hearings to Commission.
9Persons likely to be prejudiced or affected to be heard.
1Action after inquiry.
PART IVREPORT AND RECOMMENDATIONS 2Report of organization.
3Report to the complainant.
4Report of misconduct, to appropriate authority.
PART VFINANCIAL PROVISIONS 5Funds of the Commission.
8Accounts and audit.
PART VIMISCELLANEOUS PROVISIONS 0Management of information.
1Correspondence from persons in custody, etc.
3Report of the Commission.
4Report to Parliament on the implementation of report.
5Review of mandate.
PART VIISAVINGS AND TRANSITIONAL PROVISIONS 7Transfer of complaints to the Commission 8Contracts.
FIRST SCHEDULE OATH/AFFIRMATION OF CHAIRPERSON/A MEMBER/SECRETARY SECOND SCHEDULE MEETINGS AND PROCEDURE OF THE COMMISSION COMMISSION ON ADMINISTRATIVE JUSTICE ACT No.
23 of 2011 Date of Assent: 27th August, 2011 Commencement: 5th September, 2011 AN ACT of Parliament to restructure the Kenya National Human Rights and Equality Commission and to establish the Commission on Administrative Justice pursuant to Article 59(4) of the Constitution; to provide for the membership, powers and functions of the Commission on Administrative Justice, and for connected purposes.
ENACTED by the Parliament of Kenya, as follows PART IPRELIMINARY Short title.
This Act may be cited as the Commission on Administrative Justice Act, 2011.
(1) In this Act, unless the context otherwise requires administrative action means any action relating to matters of administration and includes (a) a decision made or an act carried out in the public service; (b) a failure to act in discharge of a public duty required of an officer in public service ; (c) the making of a recommendation to a Cabinet Secretary; or (d) an action taken pursuant to a recommendation made to a Cabinet Secretary; Cabinet Secretary means the Cabinet Secretary for the time being responsible for matters relating to public service; chairperson means the chairperson appointed in accordance with section 11; Commission means the Commission on Administrative Justice established under section 3; Public Complaints Standing Committee means the public Complaints Standing Committee established by Gazette Notice No.5826 of 29th June 2007; public office has the meaning assigned to it under Article 260 of the Constitution; public officer has the meaning assigned to it under Article 260 of the Constitution; secretary means the secretary to the Commission appointed by the Commission under Article 250(12) of the Constitution in accordance with the procedure set out in section 22; (2) Despite subsection (1), until after the first elections under the Constitution, references in this Act to the expression Cabinet Secretary shall be construed to mean Minister.
PART IIESTABLISHMENT AND STATUS OF COMMISSION Establishment of the Commission.
(1) There is established a Commission to be known as the Commission on Administrative Justice.
(2) The Commission shall be the successor to the Public Complaints Standing Committee existing immediately before the coming into force of this Act.
Status of successor Commission.
For the avoidance of doubt, the Commission shall be a Commission within the meaning of Chapter Fifteen of the Constitution and shall have the status and powers of a Commission under that Chapter.
Powers of Commission as a body corporate.
In addition to the powers of a Commission under Article 253 of the Constitution, the Commission shall have power to (a) acquire, hold, charge and dispose of movable and immovable property; and (b) do or perform all such other things or acts for the proper discharge of its functions under the Constitution and this Act as may lawfully be done or performed by a body corporate.
The headquarters of the Commission shall be in the capital city, but the Commission may establish branches at any place in Kenya.
Guiding principles of Commission.
In fulfilling its mandate, the Commission shall act in accordance with the values and principles set out in the Constitution and the laws of Kenya, and shall observe and respect- (a) the diversity of the people of Kenya; (b) impartiality and gender equity; (c) all treaties and conventions which have been ratified by Kenya and in particular the fact that human rights are indivisible, interdependent, interrelated and of equal importance for the dignity of all human beings; and (d) the rules of natural justice.
Functions of the Commission.
The functions of the Commission shall be to (a) investigate any conduct in state affairs, or any act or omission in public administration by any State organ, State or public officer in National and County Governments that is alleged or suspected to be prejudicial or improper or is likely to result in any impropriety or prejudice; (b) investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector; (c) report to the National Assembly bi-annually on the complaints investigated under paragraphs (a) and (b), and the remedial action taken thereon; (d) inquire into allegations of maladministration, delay, administrative injustice, discourtesy, incompetence, misbehavior, inefficiency or ineptitude within the public service; (e) facilitate the setting up of, and build complaint handling capacity in, the sectors of public service, public offices and state organs; (f) work with different public institutions to promote alternative dispute resolution methods in the resolution of complaints relating to public administration; (g) recommend compensation or other appropriate remedies against persons or bodies to which this Act applies; (h) provide advisory opinions or proposals on improvement of public administration, including review of legislation, codes of conduct, processes and procedures; (i) publish periodic reports on the status of administrative justice in Kenya; (j) promote public awareness of policies and administrative procedures on matters relating to administrative justice; (k) take appropriate steps in conjunction with other State organs and Commissions responsible for the protection and promotion of human rights to facilitate promotion and protection of the fundamental rights and freedoms of the individual in public administration; (l) work with the Kenya National Commission on Human Rights to ensure efficiency, effectiveness and complementarity in their activities and to establish mechanisms for referrals and collaboration; and (l)perform such other functions as may be prescribed by the Constitution and any other written law.
Membership of Commission.
The Commission shall consist of a chairperson and two other members appointed in accordance with the Constitution and the provisions of this Act.
Qualifications for appointment of chairperson and members.
(1) A person shall be qualified for appointment as the chairperson of the Commission if the person- (a) has knowledge and at least fifteen years experience in matters relating to human rights, law, conflict resolution, arbitration or administrative justice; (b) holds a degree from a university recognized in Kenya; and (c) meets the requirements of Chapter Six of the Constitution.
(2) A person shall be qualified for appointment as a member of the Commission if the person- (a) holds a degree from a university recognized in Kenya; (b) has knowledge and at least ten years experience in matters relating to any of the following fields- (i) law; (ii) public administration; (iii) economics or finance; (iv) gender and social development; (v) human rights; (vi) conflict resolution; (vii) management; or (viii) social sciences; (c) has had a distinguished career in their respective fields; and (d)meets the requirements of Chapter Six of the Constitution.
(3) A person shall not be qualified for appointment as the chairperson or a member of the Commission if such person (a) is a member of Parliament or a County Assembly; (b) is a member of the governing body of a political party; (c) is a member of a local authority; (d) is an undischarged bankrupt; or (e) has been removed from office for contravening the provisions of the Constitution or any other law.
Procedure for appointment of chairperson and members.
(1) The President shall, within fourteen days of the commencement of this Act convene a selection panel for the purpose of selecting suitable candidates for appointment as the chairperson or member of the Commission.
(2) The selection panel convened under subsection (1) shall consist of one person from each of the following bodies representatively (a) Office of the President; (b) Office of the Prime Minister; (c)Ministry responsible for matters relating to justice; (d) Public Service Commission; (e) the Association of Professional Societies in East Africa; and (f) the National Council for Persons with Disabilities.
(3) The selection panel shall, subject to this section, determine its own procedure and the Ministry responsible for Public Service shall provide it with such facilities and other support as it may require for the discharge of its functions.
(4) The selection panel shall, within seven days of its convening, invite applications from qualified persons and publish the names and qualifications of all applicants in the Gazette and two daily newspapers of national circulation.
(5) The selection panel shall, within seven days of receipt of applications under subsection (4), consider the applications, interview and shortlist at least three persons qualified for appointment as chairperson and five persons qualified for appointment as members of the Commission, and shall forward the names of the selected candidates to the President for nomination.
(6) Until after the first general election after the commencement of this Act, the President in consultation with the Prime Minister shall, within seven days of receipt of the names forwarded under subsection (5), nominate one person for appointment as chairperson and two persons for appointment as members of the Commission, and shall forward the names of the persons nominated to the National Assembly.
(7) The National Assembly shall, within twenty-one days of the day it next sits after receipt of the names of the nominees under subsection (6), consider all the nominations received and approve or reject any nomination.
(8) Where the National Assembly approves the nominees, the Speaker shall, forward the names of the approved persons to the President for appointment.
(9) The President shall, within seven days of the receipt of the approved nominees from the National Assembly, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly.
(10) Where the National Assembly rejects any nomination, the Speaker shall, within three days, communicate the decision of the National Assembly to the President to submit fresh nominations.
(11) Where a nominee is rejected by Parliament under subsection (10), the President in consultation with the Prime Minister shall, within seven days, submit to the National Assembly a fresh nomination from amongst the persons shortlisted and forwarded by the selection panel under subsection (5).
(12) If Parliament rejects all or any subsequent nominee submitted by the President for approval under subsection (11), the provisions of subsections (5) and (6) shall apply.
(13) In short listing, nominating or appointing persons as chairperson and members of the Commission, the selection panel the National Assembly and the President shall ensure that not more than two-thirds of the members are of the same gender, shall observe the principle of gender equity, regional and ethnic balance and shall have due regard to the principle of equal opportunities for persons with disabilities.
(14) After the first elections after the commencement of this Act, the member of the selection panel specified under subsection (2) (b) shall be replaced by a representative of the Public Service Commission.
(15) Despite the foregoing provisions of this section, the President, in consultation with the Prime Minister 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.
Oath of office.
The chairperson, members and the secretary shall each make and subscribe, before the Chief Justice, the oath or affirmation set out in the First Schedule.
Powers of the chairperson.
(1) The chairperson shall, within seven days of the appointment of the members, convene the first meeting of the Commission at which the members shall elect the vice-chairperson of the Commission from amongst the members.
(2) The chairperson shall (a) preside over all meetings of the Commission; (b) be the spokesperson for the Commission; and (c) supervise and direct the work of the Commission.
(3) If the office of chairperson become vacant or if the chairperson is unable to exercise the powers or perform the functions of his office owing to absence, illness or any other cause, the vice-chairperson shall exercise those powers or perform those functions.
Tenure of office.
(1) The chairperson and members of the Commission shall be appointed for a single term of six years and are not eligible for re-appointment.
(2) The chairperson and members of the Commission shall serve on a full-time basis.
Vacancy of office of chairperson and members.
(1) The office of the chairperson or a member of the Commission shall become vacant if the holder (a) dies; (b) by notice in writing addressed to the President resigns from office; (c) is removed from office under any of the circumstances specified in Article 251 and Chapter Six of the Constitution.
(2) The President shall notify every resignation, vacancy or termination in the Gazette within seven days.
Removal from office.
The chairperson or member of the Commission may be removed from office in accordance with Article 251 of the Constitution.
Filling of vacancy.
(1) Where a vacancy occurs in the membership of the Commission under section 15 or 16, the appointment procedure provided for under this Act shall apply.
(2) A member appointed under subsection (1) to fill a vacancy shall serve for a term of six years but shall not be eligible for reappointment.
Committees of the Commission.
(1) The Commission may, from time to time establish, committees for the better carrying out of its functions.
(2) The Commission may (a) co-opt into the membership of a committee established under subsection (1), other persons whose knowledge and skills are necessary for the functions of the Commission; (b) hire such experts or consultants as are necessary for the functions of the Commission.
Procedures of the Commission.
(1) The business and affairs of the Commission shall be conducted in accordance with the Second Schedule.
(2) Except as provided in the Second Schedule, the Commission may regulate its own procedure.
Terms and conditions of service.
The salaries and allowances payable to, and other terms and conditions of service of the chairperson and members of the Commission shall be determined by the Salaries and Remuneration Commission.
Appointment of secretary.
(1) The appointment of the secretary to the Commission under Article 250 (12) of the Constitution shall be through a competitive recruitment process.
(2) A person shall be qualified for appointment as a secretary to the Commission if the person (a) is a citizen of Kenya; (b) holds a degree from a university recognized in Kenya; (c) has had at least ten years proven experience at management level; and (d) meets the requirements of Chapter Six of the Constitution.
(3) The secretary shall be the chief executive officer of the Commission and head of the secretariat and shall be responsible to the Commission.
(4) The secretary shall hold office for a term of five years and shall be eligible for re-appointment for a further term of five years.
Removal of secretary.
(1) The secretary may be removed from office by the Commission in accordance with the terms and conditions of service for (a) inability to perform the functions of the office of secretary arising out of physical or mental incapacity; (b) gross misconduct or misbehavior; (c) incompetence or neglect of duty; (d) violation of the Constitution; or (e) any other ground that would justify removal from office under the terms and conditions of service.
(2) Before the secretary is removed under subsection (1), the secretary shall be given (a) sufficient notice of the allegations made against him or her; and (b) an opportunity to present his or her defence against the allegations.
Appointment of staff.
(1) The Commission may appoint such staff as may be necessary for the proper discharge of its functions under this Act, and upon such terms and conditions of service as the Commission may determine.
(2) The staff appointed under subsection (1) shall serve on such terms and conditions as the Commission, in consultation with the Salaries and Remuneration Commission, may determine.
(3) The Government may, upon request by the Commission, second to the Commission such number of public officers as may be necessary for the proper performance of the functions of the Commission.
(4) A public officer seconded to the Commission shall, during the period of secondment, be deemed to be an officer of the Commission and shall be subject only to the direction and control of the Commission.
The common seal of the Commission.
(1) The Common seal of the Commission shall be kept in such custody as the Commission shall direct and shall not be used except on the order of the Commission.
(2) The common seal of the Commission when affixed to a document and duly authenticated shall be judicially and officially noticed and, unless the contrary is proved, any necessary order or authorization of the Commission under this section shall be presumed to have been duly given.
Protection from personal liability.
No matter or thing done by a member of the Commission or any officer, employee or agent of the Commission shall, if the matter or thing is done in good faith while executing the functions, powers or duties of the Commission, render the member, officer, employee or agent personally liable for any action, claim or demand whatsoever.
General powers of Commission.
In addition to the powers conferred in Article 252 of the Constitution, the Commission shall have power to - (a)issue summons as it deems necessary for the fulfillment of its mandate; (b) require that statements be given under oath or affirmation and to administer such oath or affirmation; (c) adjudicate on matters relating to administrative justice; (d) obtain, by any lawful means, any information it considers relevant, including requisition of reports, records, documents and any information from any person, including governmental authorities, and to compel the production of such information for the proper discharge of its functions; (e)by order of the court, enter upon any establishment or premises, and to enter upon any land or premises for any purpose material to the fulfillment of the mandate of the Commission and in particular, for the purpose of obtaining information , inspecting any property or taking copies of any documents, and for safeguarding any such property or document; (f) interview any person or group of persons; (g) subject to adequate provision being made to meet his expenses for the purpose, call upon any person to meet with the Commission or its staff, or to attend a session or hearing of the Commission, and to compel the attendance of any person who fails to respond to a request of the Commission to appear and to answer questions relevant to the subject matter of the session or hearing.
Powers of a court.
In the performance of its functions under this Act, the Commission shall have the powers of a court 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 the person's knowledge relevant to any investigation by the Commission.
PART III INVESTIGATIONS BY THE COMMISSION Powers relating to investigations.
(1) The Commission may, for the purpose of conducting any investigation pertaining to an inquiry, employ the services of any public officer or investigation agency of the Government at the expense of the Commission.
(2) For the purpose of investigating any matter pertaining to an inquiry, a public officer or agency whose services are employed 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 document; and (c) subject to the Constitution and any written law requisition any public records or copy thereof from any public officer.
(3) The provisions of section 40 shall apply in relation to any statement made by a person before any public officer or agency whose services are employed 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 employed under subsection (1) shall investigate 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 or persons who conducts or assists in the investigation) as it deems fit.
Jurisdiction in investigations.
(1) The Commission shall investigate any complaint, or on its own initiative, investigate any matter arising from the carrying out of an administrative action of (a) a public office; (b) a state corporation within the meaning of the State Corporations Act(Cap.
446); or (c) any other body or agency of the State.
(2) The Commission shall endeavor to resolve any matter brought before it by conciliation, mediation or negotiation.
(3) If the matter referred to under subsection (2) cannot be resolved by conciliation, mediation or negotiation and the Commission determines that the administrative action was carried out unjustly or unreasonably, the Commission shall make such recommendations as it deems fit.
Limitation of jurisdiction.
The Commission shall not investigate (a) proceedings or a decision of the Cabinet or a committee of the Cabinet; (b) a criminal offence; (c) a matter pending before any court or judicial tribunal; (d) the commencement or conduct of criminal or civil proceedings before a court or other body carrying out judicial functions; (e) the grant of Honours or Awards by the President; (f) a matter relating to the relations between the State and any foreign State or international organization recognized as such under international law; (g) anything in respect of which there is a right of appeal or other legal remedy unless, in the opinion of the Commission, it is not reasonable to expect that right of appeal or other legal remedy to be resorted to; or (h) any matter for the time being under investigation by any other person or Commission established under the Constitution or any other written law.
Power not limited by other provisions.
The Commission may investigate an administrative action despite a provision in any written law to the effect that the action is final or cannot be appealed, challenged, reviewed, questioned or called in question.
(1) A complaint to the Commission may only be made by the person aggrieved by the matter complained of or on his behalf as specified under subsection (2).
(2) A complaint may be made on behalf of an aggrieved person (a) if the aggrieved person is dead or otherwise not able to act for himself or herself, by a member of his or her family or other person suitable to represent the aggrieved person; or (b) by a member of the National Assembly with the consent of the aggrieved person or other person who, under paragraph (a), is entitled to make the complaint on behalf of the aggrieved person.
Form of complaint.
(1) A person wishing to lodge a complaint under this Act may do so orally or in writing addressed to the secretary or such other person as may be duly authorised by the Commission for that purpose.
(2) Where a complaint under subsection (1) is made orally, the Commission shall cause the complaint to be recorded in writing.
(3) A complaint under subsection (1) shall be in such form and contain such particulars as the Commission may prescribe.
(4) Upon receipt of a complaint under subsection (1), the Commission may (a) call for information or a report regarding such complaint from any person within such reasonable time as may be specified by the Commission; and (b) without prejudice to paragraph (a), initiate such inquiry as it considers necessary, having regard to the nature of the complaint.
(5) If the information or report called for under subsection 4(a) is not received within the time stipulated by the Commission, the Commission may proceed to inquire into the complaint without such information or report.
(6) 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 a State organ or other body responsible for the matters complained of, the Commission shall, in writing, inform the complainant accordingly and take no further action.
Discretion not to investigate.
The Commission may decline to investigate a complaint if the Commission considers that (a) there are in existence adequate remedies under any written law or administrative practice ; or (b) the complaint is trivial, frivolous, vexatious or is not made in good faith.
Notice if complaint not investigated.
If the Commission decides not to investigate a complaint or to discontinue the investigation of a complaint, the Commission shall inform the complainant in writing of that decision and the reasons for the decision as soon as reasonably practicable.
Representations if adverse findings, etc.
The Commission shall give any person, State organ, public office or organization against whom an adverse finding or recommendation is made, an opportunity to make representations concerning the finding or recommendation before the Commission includes the finding in its report.
Notice of investigation to organization.
Before commencing an investigation under this Act, the Commission shall give notice of the intended investigation to the administrative head of the State organ, public office or organization to which the investigation relates.
Hearings of Commission.
The hearings of the Commission during an inquiry shall be open to the public, except where the Commission otherwise decides.
Persons likely to be prejudiced or affected to be heard.
(1) Subject to subsection (2),if at any stage of an inquiry the Commission (a) considers it necessary to inquire into the conduct of any person; or (b) is of the opinion that the reputation of any person is likely to be prejudiced by the inquiry, it shall give that person an opportunity to appear before the Commission by himself or by an advocate to give evidence in his own defence.
(2) This section shall not apply where the credibility of a witness is being impeached.
Statements made by persons to the Commission.
No statement made by a person in the course of giving evidence before the Commission shall subject such person to any civil or criminal proceedings except for giving false evidence by such statement.
Action after inquiry.
The Commission may, upon inquiry into a complaint under this Act take any of the following steps (a) where the inquiry discloses a criminal offence, refer the matter to the Director of Public Prosecutions or any other relevant authority or undertake such other action as the Commission may deem fit against the concerned person or persons; (b) recommend to the complainant a course of other judicial redress which does not warrant an application under Article 22 of the Constitution; (c) recommend to the complainant and to the relevant governmental agency or other body concerned in the alleged violation, other appropriate methods of settling the complaint or to obtain relief; (d) provide a copy of the inquiry report to all interested parties; and (e) submit summonses as it deems necessary in fulfillment of its mandate.
PART IVREPORT AND RECOMMENDATIONS Report to organization.
(1) After concluding an investigation or an inquiry under this Act, the Commission shall make a report to the State organ, public office or organization to which the investigation relates.
(2) The report shall include (a) the findings of the investigation and any recommendations made by the Commission; (b) the action the Commission considers should be taken and the reasons for the action; and (c) any recommendation the Commission considers appropriate.
(3) The Commission may require the State organ, public office or organization that was the subject of the investigation to submit a report to the Commission within a specified period on the steps, if any, taken to implement the recommendations of the Commission.
(4) If there is failure or refusal to implement the recommendations of the Commission within the specified time, the Commission may prepare and submit to the National Assembly a report detailing the failure or refusal to implement its recommendations and the National Assembly shall take appropriate action.
Report to the complainant.
The Commission shall inform the complainant on the results of the investigation in writing.
Report of misconduct to appropriate authority.
If, after an investigation, the Commission is of the opinion that there is evidence that a person, an officer or employee of the State organ, public office or organization which was investigated under this Act is guilty of misconduct, the Commission shall report the matter to the appropriate authority.
PART V FINANCIAL PROVISIONS.
Funds of the Commission.
The funds of the Commission shall consist of (a) monies allocated by Parliament for the purposes of the Commission; (b) such monies or assets as may accrue to the Commission in the course of the exercise of its powers or in the performance of its functions under this Act; and (c) all monies from any other source provided, donated or lent to the Commission.
The financial year of the Commission shall be the period of twelve months ending on the thirtieth of June in each year.
(1) Before the commencement of each financial year, the Commission shall cause to be prepared estimates of the revenue and expenditure of the Commission for that year.
(2) The annual estimates shall make provision for all the estimated expenditure of the Commission for the financial year concerned and, in particular, shall provide for the (a) payment of the salaries, allowances and other charges in respect of the staff of the Commission; (b) payment of pensions, gratuities and other charges and in respect of benefits which are payable out of the funds of the Commission; (c) maintenance of the buildings and grounds of the Commission; (d) funding of training, research and development of activities of the Commission; (e) creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations, equipment and in respect of such other matters as the Commission may think fit.
(3) The annual estimates shall be approved by the Commission before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for tabling in the National Assembly.
(4) No expenditure shall be incurred for the purposes of the Commission except in accordance with the annual estimates approved under subsection (3).
Accounts and audit.
(1) The Commission shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Commission.
(2) Within a period of three months after the end of each financial year, the Commission shall submit to the Auditor-General the accounts of the Commission in respect of that year together with a (a) statement of the income and expenditure of the Commission during that year; and (b) statement of the assets and liabilities of the Commission on the last day of that financial year.
(3) The annual accounts of the Commission shall be prepared, audited and reported upon in accordance with the provisions of Articles 226 and 229 of the Constitution and the Public Audit Act (No.
12 of 2003).
The Commission shall open and maintain such bank accounts as shall be necessary for the performance of its functions.
PART VIMISCELLANEOUS PROVISIONS Management of information.
(1) The Commission and the staff of the Commission shall maintain confidence in respect of all matters that come to their knowledge in the exercise of their duties.
(2) Subject to the provisions of Article 35 of the Constitution, the Commission and the staff of the Commission shall not be called to give evidence in respect of any matter that comes to their knowledge in the exercise of their duties.
(3) Notwithstanding subsection (1), the Commission may disclose in any report made by the Commission under this Act, any matter that in the opinion of the Commission may be disclosed in order to establish grounds for the Commissions findings and recommendations of the Commission.
Correspondence from persons in custody, etc 1.
Every person in charge of a prison, remand or mental institution where a person is held in custody, or of any institution where a person is a patient or inmate shall ensure, notwithstanding the provisions of any other written law, that any correspondence from such person to the Commission is transmitted in confidence and any written communication in that regard shall remain sealed.
A person who (a) without justification or lawful excuse, obstructs, hinders or threatens the Commission or a member of staff acting under this Act; (b) submits false or misleading information; (c) fails to honour summons; or (d)misrepresents to or knowingly misleads the Commission or a member of staff of the Commission acting under this Act, 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 two years or to both.
Report of the Commission.
(1) The report of the Commission under Article 254 of the Constitution shall, in respect of the financial year to which it relates, contain- (a) the financial statements of the Commission; (b) a description of the activities the Commission; (c) recommendations on specific actions to be taken in furtherance of the findings of the Commission; (d) recommendations on legal and administrative measures to address specific concerns identified by the Commission; and (e) any other information relating to its functions that the Commission considers relevant.
(2) The Commission shall publish the report in the Gazette and in at least one newspaper with national circulation.
(3) The President, the National Assembly or the Senate may at any time require the Commission to submit a report on a particular issue.
Report to Parliament on the implementation of report.
(1) The Cabinet Secretary shall, prepare an annual report and submit the report to Parliament in accordance with Article 153(4)(b) of the Constitution.
(2) Where any of the recommendations contained in a report submitted under subsection (1) have not been implemented, the Cabinet Secretary shall report to Parliament the reasons therefor.
Review of mandate.
Parliament shall, upon expiry of five years from the date of commencement of this Act, and pursuant to Article 59(4) of the Constitution, review the mandate of the Commission with a view to amalgamating the Commission with the commission responsible for human rights.
The Commission may make regulations for the better carrying into effect of the provisions of this Act.
PART VIISAVINGS AND TRANSITIONAL PROVISIONS Transfer of complaints to the Commission.
All complaints relating to maladministration, which immediately before the commencement of this Act were made to the Kenya National Human Rights and Equality Commission and the former Public Complaints Standing Committee at the commencement of this Act, shall be deemed to have been made to the Commission.
The Commission shall be bound in all contracts, including contracts of service, if any, subsisting at the commencement of this Act and to which the Public Complaints Standing Committee was party.
(1) Notwithstanding the provisions of this Act (a) any order or notice made or issued by the Kenya National Human Rights and Equality Commission and the former Public Complaints Standing Committee shall be deemed to have been made or issued under this Act; (b) any function carried out by the Kenya National Human Rights and Equality Commission and the former Public Complaints Standing Committee during the transition period shall be deemed to have been carried out under this Act; (c) all rights, powers and duties, whether arising under any written law or otherwise which immediately before the coming into operation of this Act were vested in the Public Complaints Standing Committee shall be transferred to, vested imposed on, or be enforceable by or against the Commission; (d) all actions, suits or legal proceedings by or against the Public Complaints Standing Committee shall be carried out on, prosecuted by or against the Commission and no such suit, action or legal proceedings shall abate or be affected by the coming into operation of this Act; and (e) all assets and liabilities which immediately before the commencement of this Act were vested in, or enforced against, the Public Complaints Standing Committee shall, by virtue of this paragraph, vest in the Commission.
FIRST SCHEDULE (s.12) OATH/AFFIRMATION OF THE OFFICE OF CHAIRPERSON/A MEMBER/SECRETARY having been appointed (the chairperson/member of /Secretary to) the Commission on Administrative Justice, do solemnly (swear/ declare and affirm) that I will at all times obey, respect and uphold the Constitution of Kenya and all other laws of the Republic; that I will faithfully and fully, impartially and to the best of my ability, discharge the trust and perform the functions and exercise the powers devolving upon me by virtue of this appointment without fear, favour, bias, affection, ill-will or prejudice.
(SO HELP ME GOD).
Sworn/Declared by the said.
Before me this Day Of.
SECOND SCHEDULE (s.
19) MEETINGS AND PROCEDURE OF THE COMMISSION Meetings.
(1) The Commission shall decide when and where it meets and the meetings shall be convened by the chairperson.
(2) The Commission shall have at least four meetings in every financial year and not more than four months shall elapse between one meeting and the next meeting.
(3) Unless three quarters of the members otherwise agree, at least seven days notice in writing of a meeting shall be given to every member.
(4) A meeting shall be presided over by the chairperson or in his or her absence by the vice-chairperson.
(5) The members of the Commission shall elect a vice-chairperson from among themselves- (a) at the first sitting of the Commission; and (b) whenever it is necessary to fill the vacancy in the office of the vice-chairperson.
(6) The chairperson and vice-chairperson shall not be of the same gender.
(7) The Commission may invite any person to attend any of its meetings and to participate in its deliberations, but such person shall not have a vote in any decision of the Commission.
Conflict of interest.
(1) If any person has a personal or fiduciary interest in any matter before the Commission, and is present at a meeting of the Commission or any committee at which any matter is the subject of consideration, that person shall as soon as is practicable after the commencement of the meeting, declare such interest and shall not take part in any consideration or discussion of, or vote on any question touching such matter.
(2) A disclosure of interest made under sub-paragraph (1) shall be recorded in the minutes of the meeting at which it is made.
(3) A person who contravenes sub-paragraph (1) commits an offence and is liable, upon conviction, to a fine not exceeding three million shillings, or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.
(4) No member or staff of the Commission shall transact any business or trade with the Commission directly or indirectly.
(1) Subject to sub-paragraph (2), the quorum of the meeting shall not be less than half of the appointed members.
(2) Where there is a vacancy in the Commission, the quorum of the meeting shall not be less than three appointed members.
A question before the Commission shall be decided with a supporting vote of at least two thirds of the members present.
Rules of procedure and minutes.
The Commission shall (a) determine rules of procedure for the conduct of its business; and (b) keep minutes of its proceedings and decisions.
SUBSIDIARY LEGISLATION L.N.64/2013 THE COMMISSION ON ADMINISTRATIVE JUSTICE REGULATIONS, 2013 PART IPRELIMINARY Citation.
These Regulations may be cited as the Commission on Administrative Justice Regulations, 2013.
23 of 2011;.
In these Regulations, unless the context otherwise requires Act means the Commission on Administrative Justice Act, 2013; admission means the process by which the eligibility of a complaint to determination by the Commission is done; Chairperson means the Chairperson of the Commission appointed in accordance with section 11 of the Act; Commission means the Commission on Administrative Justice established under section 3 of the Act; Commissioner means a member of the Commission appointed under section 11 of the Act; Complainant means a person or institution alleging breach of any matter under the mandate of the Commission; Complaint means an oral, written or any other communication made or addressed to the Commission or taken up by the Commission against a State Office or State Officer or Public Officer or Public Office; hearing means a sitting of a hearing panel for the purpose of enabling it to reach or announce a decision on a complaint under adjudication; investigation includes the formal process following a preliminary inquiry or on the Commissions own motion of establishing the facts in a matter, by an investigator, upon a decision of the Commission; mediation means the process by which the Commission assists a complainant and the respondent to reach a fair settlement regarding the complaint and may include, the process of conciliation or negotiation; respondent means a person or institution against whom or who the complaint is made; State office has the meaning assigned to it under Article 260 of the Constitution; and State officer has the meaning assigned to it under Article 260 of the Constitution.
PART IILODGING AND HANDLING PROCEDURE OF A COMPLAINT Lodging of Complaints.
A complaint may be lodged at the offices of the Commission or at such place or places and in such form as the Commission may from time to time determine.
Parties to a Complaint.
A complaint may be lodged by the complainant in person or by a person acting on behalf of the complainant or by any other person authorized by law to act for the complainant, provided that the Commission may admit anonymous complaints.
Form of a Complaint.
(1) Where the complaint is made orally, or otherwise, or the complainant cannot read or write, the complaint may be reduced to writing by a designated officer of the Commission.
(2) A written complaint shall be in such form as the Commission may determine and shall include (a) the name and contact details of the complainant; (b) the particulars of the respondent; (c) the substance of the complaint in sufficient detail to enable the Commission to act.
(3) The complainant may attach or provide any documents necessary to support the complaint.
(4) Despite the foregoing, a complaint may be made anonymously, or treated in such a manner as to protect the identity of, or particulars of, the complainant where necessary, as may be directed by the Chairperson.
Principles of natural justice.
In the determination of complaints under these Regulations, the Commission shall have due regard to the principles of natural justice and shall not be bound by any legal or technical rules of evidence applicable to proceedings before a court of law.
The Commission shall not charge any fee in the lodging and determination of complaints.
Service of process.
(1) Any document required or authorized to be served under these Regulations shall, where practicable, be served personally on the person by delivering or tendering the document to that person.
(2) Where it is not possible to effect personal service, the document may be served in such manner as the Commission may determine.
(3) Any document requiring service under these Regulations shall be served by an officer of the Commission or any other person authorized to do so by the Commission.
Screening of Complaints.
(1) A Complaint shall, upon being entered into the register under regulation 16, be forwarded to the appropriate Department in the Commission for screening.
(2) The Commission, upon screening the complaint, may- (a) admit the complaint; (b) where appropriate, advise the complainant in writing that the matter is not within the mandate of the Commission; or (c) advise the complainant that the matter lies for determination by another body or institution and refer the same to the said body or institution.
Discontinuation of a complaint.
Where, in the opinion of the Commission, a complaint does not merit further consideration, it may discontinue further proceedings on the complaint, record its reasons and notify the complainant accordingly.
(1) Where a complaint has been discontinued under regulation 10, the complainant may, in writing, appeal to the Chairperson against the discontinuation.
(2) Where an appeal is disallowed, the complaint shall be closed and the appellant notified appropriately.
(3) For purposes of this regulation, a letter under the hand of the Chairperson notifying the complainant of the decision of the Commission shall be considered as notice for the purposes of this regulation.
Withdrawal and lapse of complaint.
(1) A complainant may, in writing, withdraw a complaint pending before the Commission at any stage during its consideration.
(2) Where a complainant unjustifiably fails or neglects to respond to communication from the Commission within three months from the date of the last communication, the Commission may deem the complaint to have lapsed.
(3) Despite the provisions of paragraphs (1) and (2), the Commission may, in its discretion, proceed to deal with a complaint in the public interest.
(4) Where a complaint has lapsed, the complainant may apply to the Chairperson for re-admission of the complaint and give reasons in support of the application for re-admission to the satisfaction of the Chairperson.
Joint consideration of complaint.
(1) Where two or more complaints are lodged in which the same or similar allegations are raised against a respondent or respondents, the Commission may (a) consolidate the complaints; or (b) treat one complaint as a test complaint and stay further action on the other complaints pending resolution of the test complaint.
(2) The decision on a test complaint shall apply, mutatis mutandis, to all other complaints with which the test complaint was consolidated.
The Commission may take judicial notice of facts that are publicly known.
Proceedings before the Commission shall be conducted in the English or Swahili languages.
(2) The Commission shall endeavour to ensure that a party who cannot speak or understand the language of proceedings is entitled to the services of an interpreter to be provided by the Commission.
(3) For purposes of paragraph (2), interpretation shall include interpretation for braille, sign-language or such other interpretation as may be deemed necessary.
Register of Complaints.
The Commission shall keep a register of complaints in which all complaints shall, upon receipt, be entered.
PART IIIADMISSION AND RESOLUTION OF A COMPLAINT Action on complaint.
(1) Upon admission of a complaint, the Commission shall draft a communication in form CAJ 1-1 or CAJ 2-1, as applicable, set out in the First Schedule, to the respondent.
(2) Upon the expiry of fourteen working days, if there is no response after receipt, a reminder giving seven days to comply in form CAJ3-1 set out in the Second Schedule shall be communicated to the respondent.
(3) If there is still no response under paragraph (2), a further and final reminder giving seven days to comply in form CAJ3-1 set out in the Second Schedule, shall be send to the respondent.
(4) If upon the expiry of twenty-eight days there is still no response, the Commission shall issue summons or make such other orders to attend to the respondent in a form to be determined by the Commission.
Failure to respond to Summon.
If a respondent fails to respond to the summonses or other orders referred to in regulation 17, the Commission may proceed to (a) determine the complaint in the absence of the respondent; (b) institute legal proceedings against the respondent under to section 52 (c) of the Act; (c) cite the respondent as an unresponsive State or Public Office or Officer or declare such State or Public Officer to be unfit to serve in the Public Service; (d) take appropriate action against the unresponsive State or Public Office or Officer through Performance Contracting; or (e) report the respondent in the Commissions Statutory Reports.
Resolution of complaint.
In resolving a complaint, the Commission may (a) conduct investigations; (b) requisite and obtain information or documents; (c) conduct an inquiry; (d) undertake mediation, negotiation and conciliation; (e) constitute a hearing panel; (f) invite or summon any person or persons to attend to the Commission; (g) obtain warrants of arrest for breach of any summons or orders of the Commission; or (h) obtain orders from court authorizing search or seizure.
Action against respondent.
After adopting any of the options stated in regulation 19, the Commission may determine the complaint and (a) make a formal determination that the respondent is in breach of the Constitution, the Act or any other legislation; (b) declare the respondent to be a person ineligible to hold a state or public office; (c) enter the name of the respondent in the Commissions Citation Register which shall be signed and sealed by the Chairperson and which shall include the nature of the complaint and the determination made; or (d) make any other adverse finding against the respondent.
Determination of complaint.
In determining the complaint, the Commission may (a) recommend an appropriate remedy; (b) award appropriate compensation to the complainant; (c) recommend the removal of the respondent from State or Public office; (d) issue a formal caution or warning to the respondent; or (e) publish the action taken in the Commissions Statutory Report.
PART IVINVESTIGATIONS Investigations.
(1) Where the complaint has been admitted, or where the commission has taken up a matter on its own initiative, the Chairperson may commission an investigation by an officer of the Commission or any public office or investigation agency.
(2) The investigator may, subject to the direction and control of the Commission (a) issue summonses or requisition information in form to be determined by the Commission; (b) administer an Oath or Affirmation; (c) requisite any document or information from any person or institution; and (d) by order of court, enter into any establishment or premises, conduct inspections or collect documents.
(3) Upon completion of the investigation, the investigator shall prepare a report and submit it to the Chairperson of the Commission.
(4) Upon review of the report, the Commission may (a) conduct a formal hearing; (b) undertake a mediation or a conciliation; (c) refer the complaint to the appropriate public body for further action; or (d) determine the complaint appropriately.
(5) The Commission shall keep a record of each investigation and may publish the findings and recommendations, pursuant to an investigation, and may include these in its Statutory Report.
PART VMEDIATION, CONCILIATION AND NEGOTIATION Mediation and conciliation procedure.
(1) The Commission may, in writing, advise the parties to a complaint that the dispute may be best resolved through mediation and conciliation.
(2) Where both parties to a complaint consent to mediation and conciliation, the Commission shall, in consultation with the parties, fix an appropriate date for a meeting.
(3) The Commission shall issue a mediation notice which shall include (a) the names of the parties to the complaint; and (b) the date, time and venue of the mediation meeting.
(4) Upon the issuance of a mediation notice, but before the date of the meeting, the Chairperson shall constitute a mediation panel consisting of at least one Commissioner and such number of other persons as the Chairperson may consider necessary.
Procedures at conciliation meeting.
During the mediation or meeting, the panel appointed under regulation 23(4) may apply such procedures as it may, in the interests of the parties, deem appropriate in the circumstances.
(1) At the conclusion of the mediation process, both parties shall sign a mediation and conciliation agreement bearing the common seal of the Commission and signed by the designated Commissioner.
(2) A mediation or conciliation agreement signed under this regulation, shall be deemed to be a determination of the Commission, and shall be enforceable as such.
(3) Despite provisions of this regulation, the Commission may make awards for compensation under this Part.
PART VICOMMISSION HEARINGS Hearings.
(1) The Commission may conduct a hearing on any complaint or matter under its jurisdiction where it considers desirable or appropriate to do so.
(2) A hearing panel shall consist of such persons as the Chairperson may appoint.
(3) Unless the circumstances otherwise require, for reasons stated, the Commission shall conduct its hearings in public.
Hearing procedure 7.
(1) Upon determination that a complaint should be addressed through a hearing, the Commission shall issue a notice to the concerned parties on the constitution of a hearing panel and require them to enter appearance.
(2) The notice referred to in paragraph (1) shall be in the form to be determined by the Commission and shall include (a) the names of the parties; (b) the date, place and time of the hearing; (c) the penalty for non-compliance; (d) the duration within which appearance is required; and (e) a notice that a party may appear in person or with an advocate, representative or intermediary.
(3) An appearance before the hearing panel shall be made within fourteen days from the date of service of the notice to the parties under paragraph (2).
(4) Where a party has entered appearance under to paragraph (3), the Commission shall give directions and fix a hearing date.
(5) For purpose of this regulation, a letter or any other sufficient indication in writing, by a party, informing the Commission that the party shall appear on the date and place of hearing, shall be considered as notice of appearance by that party.
(6) Upon fixing a hearing date, a hearing notice in form to be determined by the Commission, shall be served on all the parties.
Default in appearance.
(1) Where a party to a complaint has been duly served and fails to appear as required, the hearing panel may proceed to hear the respondent and make orders in default of appearance as it may deem fit.
(2) If, on the day fixed for the hearing of a complaint, the respondent appears in answer to the summons but the complainant does not appear, or vice-versa, the hearing panel may, if satisfied that a hearing notice was duly served, proceed to dispense with the complaint on the basis of the evidence before it.
(3) Where a complaint is determined under paragraphs (1) and (2), the party in default may move the Commission to set aside the decision and reinstate the complaint subject to satisfying the Commission that there were satisfactory grounds and reasons for non-attendance at the hearing.
(4) The hearing panel may, upon consideration of the motion under paragraph (3), set aside the decision and fix a new date for the hearing of the complaint with notice to both parties, and upon such terms and conditions as it deems fit.
Procedure at hearing.
(1) Despite the provisions of this regulation, a hearing panel may adopt a suitable procedure for the purpose of resolving the matter while avoiding unnecessary legal technicalities and formalities.
(2) The parties shall be heard in such order as the hearing panel shall determine and shall be entitled to give evidence, call witnesses, question any witnesses and address the hearing panel both on the evidence and generally on the subject matter of the complaint.
(3) The hearing panel may, at any time, put questions to either party or any witnesses and may, at its discretion, call such additional evidence or expert testimony as it considers necessary.
(4) The hearing panel shall enter an appropriate decision on part or all of the complaint.
(5) The hearing panel may, for sufficient reason, at any time before or after the beginning of the hearing, adjourn the proceedings and in every such case the Commission shall fix a date for further hearing of the complaint.
(6) In the course of the proceedings, the hearing panel may make such preservatory or interim orders, as it may deem fit and just in the circumstances.
(7) Evidence before the hearing panel may be given orally, or if the hearing panel so orders, by affidavit or written statement, but the hearing panel may at any stage require the personal attendance of any witness, deponent or author of a written statement or document.
(8) At any hearing, the hearing panel may, if it is satisfied that it is just and reasonable to do so with no resulting prejudice to the respondent, permit a party to rely on grounds not stated in his complaint, or as the case may be, his reply, and adduce any evidence not initially presented to the Commission.
(9) Evidence before the hearing panel shall be given on oath or affirmation and for that purpose, the hearing panel shall administer such oath or affirmation.
(10) The evidence of the parties and that of each witness shall be recorded by the hearing panel or by any person authorized to do so by the Commission.
Change of Advocate.
An advocate who appears for a party at any stage shall be deemed to be that partys advocate throughout the proceedings unless (a) the party to the complaint files a written revocation of the advocates authority with the Commission; (b) the advocate files a written notice of withdrawal from the matter with the Commission.
After concluding the hearing of the matter, the hearing panel shall render a decision reflecting substantive justice.
(2) A decision under paragraph (1) shall be in writing and shall state (a) the nature of the complaint; (b) a summary of the relevant facts and evidence adduced before the panel; (c) the determination and reasons supporting the panels decision; (d) the remedy to which the complaint is entitled; and (e) the order of the panel necessary to enforce the remedy.
(3) Where the decision of the hearing panel is not given immediately after the hearing of the complaint, the panel shall deliver the decision on notice.
(4) After the decision is rendered, the Commission may correct typographical errors without prejudice to the substance of its findings.
(1) The orders made in a decision of the hearing panel shall be extracted, sealed and authenticated as orders of the Commission and shall be signed by the Chairperson.
(2) Orders of the Commission shall be enforced in similar manner as Orders of Court.
Copies of proceedings.
Parties may obtain a copy of the Commissions decision free of charge.
PART VIIMISCELLANEOUS Amicus curiae.
The Commission may, on its own motion or upon invitation, seek to join legal proceedings in a court of law or judicial tribunal as interested party, interveners or amicus curiae, provided that when the Commission is requested to do so it may, upon giving written reasons, decline to be enjoined in such proceedings.
(2) In determining whether to join proceedings as interested parties, interveners or amicus curiae, the Commission shall satisfy itself that the issues before the court (a) are matters of broad public interest; (b) are matters raising substantial policy implications; (c) are matters affecting public administration; (d) are matters relating to administrative justice; (e) are matters concerning leadership and integrity; or (f) are matters of interest to the Commission in light of its mandate.
The Commission may from time to time determine any other forms for the better carrying out of the provisions of the Act and these Regulations.
Case not covered by Regulations.
Any case not covered by these Regulations shall be dealt with in accordance with such instructions as the Commission may issue from time to time.
FIRST SCHEDULE FORM: CAJ 1-1 (r.
17 (1)) COMPLAINT.
Complainants Name/Anonymous [ss.32 & 33]:.
Complainants ID Number [ss.32 & 33]:.
Subject of Complaint:.
Public Officer/Institution complained against:.
Screening/Categorisation: Within CAJ Mandate? YES:_ NO:_.
FORM CAJ 2-1r.
17 (1)) NOTICE OF COMPLAINT & CALL FOR INFORMATION.
Summary of Complaint:.
Recommendation/Call for Information/ Direction/Mediation/Review of legislation, Processes & Procedures:.
Certification: SECOND SCHEDULE FORM CAJ 3-1 (r.
17 (2), (3)) SUMMONS TO ATTEND THE COMMISSION.
Reasons for Summons:.
TAKE NOTICE that a Summons has been issued to secure your attendance before the Commission on Administrative Justice pursuant to Article 252(3) of the Constitution as read with sections 27 & 28 of The Commission on Administrative Justice Act 2011 for the purpose/s of production of documents/discovery of documents/examination, particulars of which are set out below:.
Time-frame and Penal Notice: You have 7 working days from the day following service of this Summons to attend to this Summons, otherwise you will be personally liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.
Certification: SHAPE \* MERGEFORMAT PAGE 28 No.
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2013] Commission on Administrative Justice No.
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