No 45 Of 2016 - as Plain Text by MWakili

SPECIAL ISSUE Kenya Gazette Supplement No.

U5 (Acts No.45) REPUBLIC OF KENYA KENYA GAZETTE PPLEM SU ENT ACTS, 201 6 NAIROBI, 30th December, 2016 CONTENT ,' .- .,a ', L,-_ ,i./ l't'l ? P.O ., r,f1 00 .,,\ I rtt - )G24 I 135 THE WITNESS PROTECTION (AMENDMENT) ACT,2016 No.

45 of 2016 Date of Assent: 23rd December, 2016 Date of Cornmencement: l3th January,2017 AN ACT of Parllament to amend the Witness Protection Act to align the Act with the Constitution and for connected purposes ENACTED by the Parliament of Kenya, as follows- 1.

This Act may be cited as the Witness Protection Short titlc.

(Amendment) Act, 2016.

2.

Section 2 of the Witness Protection Act, 2006, in Amendment of this Act referred to as "the principal Act" is amended- section 2 of No.

16 of2006.

(a) by deleting the definition of the term "committee" and substituting therefor the following new definition- "Committee" means the Witness Protection Complaints Committee established under section 3U of this Act; (b) by deleting the definition of the word "Minister" and substituting therefor the following new definition- "Minister" means the Attorney-General; (c) by deleting the definition of the word "Tribunal"; (d) bV deleting the definition of the word "witness" and substituting therefor the following new definition- "witness" means a person who has made a statement or has given or agreed to give evidence in relation to an offence or criminal proceedings in Kenya or outside Kenya, and requires protection on the basis of an existing threat or risk".

(e) by inserting the following definitions in proper alphabetical order- 1 136 Witne ssP rot ec tion ( Amendmen t 2016 ) No.45 "Commission" means the Salaries and Remuneration Commission established under Article 230 of the Constitution; "law enforcement agency" means a government agency responsible for the enforcement of the law; "public interest" means matter affecting the welfare of the state or the rights, health, or finances of the general public; "protection officer" includes an officer of the agency charged with the responsibility of protecting a witness; "threat" means the possibility of adverse consequences for a witness as a result of giving evidence in the proceedings and includes any danger, physical or psychological, that may result from the involvement of the person in the proceedings; "risk" means the likelihood or possibility that a threat may occur; "security officer" means a person who has been trained on security matters charged with the responsibility of ensuring physical safety.

3.

The principal Act is amended by repealing section Repeal and 3 and replacing it with the following new section- replacement of section 3 of No.

16 of 2006.

Application.

3.

(1) This Act shall apply to- (a) a witness in criminal proceedings; and (b) a witness who is required to give evidence in a prosecution or inquiry held before a court, commission, or tribunal outside Kenya- lt37 2016 Witness Protection (Amendment) No.

45 (i) for the purposes of any treaty or agreement to which Kenya is a party; or (ii) in circumstances prescribed by Regulations made under this Act.

(2) A person is a protected person for purposes of this Act if that person qualifies for protection- (a) by virtue of being related to a witness; (b) on account of a testimony given by a witness; or (c) for any other reason which the Director may consider sufficient.

4.

Section 3D of the principal Act is amended by Amendment of inserting the following new subsection immediately after section 3D of No.

subsection (2)- 16 of 2006.

(3) A person who disobeys a summons issued by the Agency commits an offence and shall upon conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.

5.

Section 3E of the principal Act is amended- Amendment of section 3E of No.

(a) by deleting (1) I6 of 2006.

subsection and substituting therefor the following new subsection- (1) There shall be a Director of the Agency who shall be appointed by the Advisory Board on such terms and conditions as the Board may, in consultation with the Commission, approve.

(b) in subsection (3), by inserting the following new paragraph immediately after paragraph (c)- (d) meets the requirements of Chapter Six of the Constitution.

(c) by inserting the following new subsections immediately after subsection (4)- I 138 Witness Protection ( Amendment ) 2015 No.45 (4A) The Director may, in writing, delegate any power or function confelred to the office under this Act to a senior officer of the Agency.

(4B) An officer of the Agency to whom a power or function has been delegated under iubsection (4A) shall exercise that power or perform that function subject to the general directions of the Director.

(4C) The Director may at any time in writing withdraw a delegation under subsection (4A).

(4D) The delegation of any power or function does not prevent the Director from exercising or performing that power or function in person.

(d) by deleting subsection (7) and substitutirtg therefor the following new subsection- (7) A petson desiring the removal of the Director shall present a petition to the Board which shall be in writing, setting out the alleged facts constituting the grounds for removal of the Director.

(e) by inserting the following new subsection immediately after subsection (7)- (7A) The Board shall consider the petition and, if it is satisfied that it discloses the existence of a ground under subsection (6), the Board shall dismiss the Director.

(0 by deleting subsection (8); (g) by deleting subsection (9); (h) by deleting subsection (10); and (i) by deleting subsection (ll).

6.

Section 3F of the principal Act is amended- Amendment of section 3F of No.

I6 of 2006.

(a) in subsection (l), by deleting the word "Committee" and substituting therefor the word "Commission"; I 139 2Ol5 Witness Protection(hnendment) No.45 (b) in subsection (2) by inserting the words "security officers" immediately after the words "protection officers"; (c) in subsection (5)- (i) by deleting the word "Committee" appearing in the opening sentence and substituting therefor the word "Commission"; and (ii) by inserting the following new paragraph immediately after paragraph (b)- (c) that the remuneration and conditions of service may differ from those applicable in the public service.

7.

The principal Act is amended by repealing section Repcaland 3H and reptading iiwith the following new siction- :pJffiTilrk 16 of 2006.

RrndsorrlrcAgcrrcy.

3H.

(1) Except as otherwise provided in section 3I, the expenses incurred by the Agency in accordance with this Act shall be charged and issued out of the Consolidated Fund and the appropriation for the expenses shall be included in the Appropriation Bill introduced in the National Assembly to authorize the withdrawal from the Consolidated Fund.

(2) Without prejudice to subsection (1), there may be made to the Agency grants, gifts, donations or bequests towards the achievement of the objects of the Agency.

(3) The Agency shall not accept any I grant, gift, donation or bequest made on any I condition that the Agency performs any function or discharges any duty or obligation other than duties under this Act.

I8.

Section 3J of the principal Act is amended- Amendment of section 3J of No, of 2OO6.

IIIIII 140 No.

45 Witness Protection (Amendment) 2016 (a) in subsection (2), by deleting the words "within three months before the commencement of the financial year" and substituting therefor the words "in accordance with the law relating to the public finance management"; and (b) in subsection (4), by deleting the words "Minister and the Treasury" and substituting therefor the words "National Treasury".

9.

Section 3P of the principal Act is amended by Amendment of (2) and substituting therefor the section 3P of No.

deleting subsection 16 of 2006.

following new subsection- (2) The Board shall be an unincorporated body consisting of- (a) the Solicitor General as chairperson; (b) the Principal Secretary responsible for matters I relating to foreign affairs; (c) the Principal Secretary responsible for matters relating to finance; (d) the Chief Registrar of the Judiciary; (e) the Director-General of the National Intelligence Service; (f) the Inspector-General of the National Police Service; (g) the Commissioner-General of Prisons; (h) the Director of Public Prosecutions; and (i) the Chairperson of the Kenya National Commission on Human Rights.

10.

The principal Act is amended by repealing section Repeal and it with the following new section- replacement of I 3R and replacing section 3R of No.

II6 of 2006.

Allowances.

3R.

Members of the Board shall be paid such allowances as may be determined from time to time by the Cabinet Secretary I responsible for finance in consultation with I the Commission.

II1l ll4l ( Witne ssP rot ec tion Amendment 2016 ) No.45 11.

The principal Act is amended in Part 1A by Amendment of deleting sub-title C and substituting therefor the following Part IA of No.

16 new sub-title- of 2006.

C.

The Witness Protection Complaints Committee.

12.

The principal Act is amended by repealing section Repeal and 3U and replacing it with the following new section- replacement of section 3U of No.

I6 of 2006.

Establishment of the 3u.

( 1) There is established a Witness Drotection committee to be known as the Witness it,,rii,liJ'""'"" Committee.

Protection Complaints Committee.

(2) The Committee shall consist of- (a) a chairperson who shall be a person qualified to be appointed a judge of the High Court; and (b) four other members- (i) one of whom shall be an advocate of the High Court of five years standing; (iD two members with relevant experience in handling complaints relating to human rights and intelligence respectively; and (iii) one member who shall either be a retired senior witness protection officer or a person with experience in witness protection.

(3) The chairperson and members of the Committee shall be appointed by the Attorney-General and shall serve on part- time basis.

(4) A person shall not be qualified to be appointed as a chairperson or a member of the Committee if that person- tt42 ( 2016 WP ro tion Ame ndmen t itne ss tec ) No.45 (a) is a member of the public service or is a member of a governing body of a political party; or (b) has not met the requirements of Chapter Six of the Constitution.

(5) The chairperson and members shall hold office for a non-renewable term of six years.

(6) The Attorney-General may- (a) by regulations provide guidelines for the operation of the committee; and (b) designate staff to facilitate the operations of the Committee.

13.

The principal Act is amended by inserting the Inscrtion of a ncw following new section immediately after section 3U- scction 3V in No.

16 of 2006.

Functionsof 3V.

(l) The Committee shall receive, Committcc.

consider and determine- (a) appeals from decisions of the Director under this Act; and (b) complaints against staff of the Agency.

(2) A person aggrieved by the decision of the Committee may, within thirty days of that decision, appeal to the High Court.

14.

Section 4 of the principal Act is amended by Amcndmcntof adding the words "within or outside Kenya'n at the end of scction 4 of No.

"relocation" in subsection (2Xb).

l6 of 2006.

word appearing 15.

Section 5 of the principal Act is amended by Amcndment of inserting the following new subsection immediately after section 5 of No.

(7)- 16 of 2006.

subsection (8) A person admitted into the programme shall be protected for as long as the danger or risk to their safety persists.

1143 ( W ine ssP rotcc tip.nA,nndtwnt 2016 ) No.

ali 16.

Section 6 (l) of the principal Act is amended by Amndmcilof inserting the following new paragraphs immediately after stim6of l{o, (g)- 16of2006.

paragraph (h) the public intercst in the prosccution of the case; (i) ability of the person to adapt to the programrrc and its measures.

17.

Section 22(l) of the principal Act is amendd by Amcn&ncilof deleting paragraph (b) and substituting therefor the scctim 22 ofl{o.

16of Iff.

following new paragraph- (b) for the purposs of investigation by the Director of Public Prosecutions, the National Police Services or other law enforcement agencies; or.

18.

The principal Act is amended by inserting the lrrcnfrnof kt new Part immediately qfter Pafi IItr.

|IIAof No.

16of following 2flb.

PART IIIA -R,ECIPROCAL PR.OTECTION ARRANGEMENTS WTITH AON.EIGN COUNTRIES Admissionof 29A.

(l) fire Director, in consultatinn wimcsses fiom with the Attorney-Creneral, may on the basis tlfi:ffi;.

on rcciprocal of any traty or convention ratified by besis' Kenya enrcr iirto a written agremcnt with L competent authority from s forcign countfy- (a) to admit, on reciprocal basis, qualifying witnesses from that country into the witness protection programme under this Acti or (b) to have Kenyan witnsss protected under the witness protection rcgimc of that forcign counry.

(2) The pafticulars for the agrement referred to under subsection ( I ) shall include- tt44 No.

45 Witness Protection (Amendment) 2016 (a) personal particulars and relevant documentation with respect to the Witnesses sought to be protected; (b) the reasons for their protection, and the nature of the risk or threat they are facing; (c) the period of protection; (d) the source of funding to meet their protection costs; and (e) any other relevant particulars.

Application for 29B.

(l) An application for protection admission of a under thid Part shall be in the prescribed foreign witness.

form.

(2) Upon receipt of an application under subsection (1), the Director shall assess and, after consultation with the Attorney-General, determine whether or not to admit the witness into the prograrnme.

(3) Before a foreign witness is admitted into the prograrnme under this section, the Director shall- (a) request to be furnished with such further information as may be necessary; and (b) confirm that the foreign authority requesting for such protection shall provide all the resources and other material necessary for the 'protection.

(4) Where it is decided to admit a foreign witness in the progralnme, the Director shall liaise with the Cabinet Secretary responsible for immigration for the necessary permits.

(5) The Agency may make Regulations to give full effect of this Part.

tt45 2016 Witness Protection (Amendment) No.

45 Admission of 29C.

(D Subject to the provisions of witnesses at any other law, the Directol may upon request of court, tribunal, intemational request from an international court, or tribunal, commission, institution or organisation to to which Kenya is a and after a party.

which Kenya is PartY, consultations with the Attorney-General, admit any witness to the programme.

(2) The provisions of this Part relating to the protection of foreign witnesses shall, with necessary modifications, apply to a request made pursuant to this section.

The principal Act is amended by inserting a new I;::'*#nK;.

19.

section immediately after section 30E- 16o12006.

Prohibitionagainst 30F.

(1) A person shall not intimidate, intrmidation.

harass, obstruct, threaten, hinder or prevent iiH::;#;:,".

a witness with intention to subvert the course ofjustice.

(2) A person who contravenes the provisions of subsection (1) commits an offence and is liable, on conviction, to a term of imprisonment not exceeding five years.

20.

The principal Act is amended by repealing section Repeal of section 35ofNo.

16of 35.

2006.

21.

The principal Act is amended by repealing section Repeal and replacement of 36 and replacing it with the following section- section 36 of No.

l6 of 2006.

Regulations and 36.

(1) The AttorneY-General may rules.

make Regulations for or with respect to any matter which by this Act is required or permitted to be prescribed or which is n"c"rsary or expedient to be prescribed for carrying out or giving effect to this Act.

t146 Wiarcss Pmtectlon ( tE Ancndmcnt) 2016 No.

(2) The Chief Justice may, in consultstim with thc Director, make such nrles of court as may be required or permitted by this Act to be made or as may be necessary or expedient to be made for carrying out or giving effect to this Act.

(l) (3) Without prejudice to subsections and (2) the naturp and scope of the Rcgulations and rules shall- (a) be in line with the general purpose and obiletives of this Act; (b) be limited only to the matters set out in this Acq and (c) comply to the drafting standards set out under this Act.

.