The Narcotics Drugsand Psychotropic Substances Control Amendment Act 2022 - as Plain Text by MWakili

national council for LAW REPORTOnJG libr ar y SPECIAL ISSUE Kenya Gazette Supplement No.

33 (Acts No.

4) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2022 NAIROBI, 7th March, 2022 CONTENT A ct Page The Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022 51 Pp wn f -.'a29 JUN 2Q22 P.

O.

Box 'n.'443- 00100, NAIRODi, KEr^YA TEL: 2719231 FM : 2712694 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 51 THE NARCOTICS, DRUGS AND PSYCHOTROPIC SUBSTANCES (CONTROL) (AMENDMENT) ACT No.

4 of 2022 Date of Assent: 24th February, 2022 Date of Commencement: 21st March, 2022 AN ACT of Parliament to amend the Narcotics, Drugs and Psychotropic Substances (Control) Act and for connected purposes ENACTED by the Parliament of Kenya, as follows Short title.

1.

This Act may be cited as the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022.

Amendment of 2.

Section 2 of the Narcotics, Drugs and Psychotropic section 2 of No.4 as the of 1994.

Substances (Control) Act, (in this Act referred to principal Act) is amended (a) by inserting the following new definitions in their proper alphabetical sequence Cabinet Secretary means the Cabinet Secretary to for the time being responsible for matters relating i nterior; clandestine laboratory means (a) the purchase or procurement of chemicals, supplies, equipment, or laboratory location for the illegal manufacture of specified controlled substances; (b) the transportation or arranging for the transportation of chemicals, supplies, or equipment for the illegal manufacture of controlled substances; (c) the setting up of equipment or supplies in preparation for the illegal manufacture of specified controlled substances; (d) the activity of compounding, synthesising, concentrating, purification, separating, extracting, or other physical or chemical processing of a substance, i ncluding a controlled substance precursor, or the 52 No.

4 (Amendment) 2022 Narcotics, Drugs and Psychotropic Substances (Control) packaging, repackaging, l abelling, or relabelling of a container holding a substance that is a product of any of these activities, when the substance is to be used for the illegal manufacture of specified controlled substances; (e) the i llegal manufacture of specified controlled substances; or (f) the distribution, diversion or disposal of chemicals, equipment, supplies, or products used in or produced by the i llegal manufacture of specified controlled substances, law enforcement officer means any person who is responsible for the prevention, investigation, apprehension or deterrence of persons suspected to have committed an offence under this Act; market value means value of narcotic drug, psychotropic substance, prohibited plant, precursor or chemicals; precursor chemicals means a substance frequently used in the illicit manufacture of narcotic drugs or psychotropic substances as specified in the Fourth Schedule to this Act; public officer means an officer, employee or member of a public body, including one that is unpaid, part-time or temporary; (b) by inserting the following subsection immediately after subsection (1) (2) Despite subsection (1), references in this Act to the expression Minister shall be construed to mean Cabinet Secretary.

Amendment of 3.

Section 3 of the principal Act is amended by seetion 3 of No.4 deleting subsection (2) and substituting therefor the of 1994.

following new subsection ( 1) (2) A person guilty of an offence under subsection shall be liable (a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment to a 53 2022 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) No.

4 term of not more than five years or to a fine of not more than one hundred thousand shillings; (b) in respect of a narcotic drug or psychotropic substance, other than cannabis, where a person is in possession of less than one gram, to a fine of not l ess than fi ve million shillings, or to imprisonment to a term of not less than five years, or to both such fine and imprisonment; and (c) to, in addition to the sentences in paragraph (a) and (b) respectively, committal to appropriate court appointed treatment programme or to voluntary submission to a rehabilitation programme for a period not less than six months, where the court deems fit.

Amendment of 44.

The principal Act is amended by deleting section section 4 of No.4 of 1994.

and substituting therefor the following new section Penalty for trafficking 4.

Any person who trafficks in, or in narcotic drugs, etc.

has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable (a) in respect of any narcotic drug or psychotropic substance (i) where the person isin possession of between 1 100 grams, to a fine of not less than thirty million toor shillings imprisonment for a term of thirty years, or to both such fine and imprisonment; (ii) where the person isin possession of more than 100 grams, to a fine of not less than f ifty million shilling or three times the market v alu eofthe 54 No.

4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022 narcotic or drug psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment, (b) in respect of precursor chemicals or any substance, other than a narcotic drug or psychotropic substance, which he or she represents or holds out to be a narcotic or psychotropic substance, (i) where the person is in possession of 50 mg or more, to a fine of not less than twenty million shillings or imprisonment for life; and (ii) where a person isin possession of 50 mg or l ess, to a fine of not less than ten million shillings, or to imprisonment to a term of not less than ten years, or to both such fine and imprisonment.

Insertion of 5.

The principal Act is amended by inserting the sections 4A and following new sections immediately after section 4 4B into No.

4 of 1994.

Penalty relating to 4A.

(1) A person who precursor chemicals.

(a) manufactures or is in possession of a substance referred to in the Fourth Schedule f or the purpose of production of any narcotic drug or psychotropic substances; or (b) transports such a substance or supplies it to another person, knowing or having reasonable grounds to suspect that the 55 2022 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) j^o.

4 substance is to be used in or for the unlawful production of a narcotic drug, is guilty of an offence and is liable to, upon conviction, to a fine of not less than fifty million shillings and to imprisonment for a term of not less than twenty years.

(2) The Cabinet Secretary responsible for internal security may make regulations for canying out the purposes of this section and in particular (a) for imposing requirements as to the of tr an sactions documentation involving substances referred to in the Fourth Schedule; (b) adding or deleting substances in the Fourth Schedule as is deemed necessary; (c) keeping of records and furnishing of information on substances as listed; (d) any other matter that may be required to be prescribed.

Conspiracy lo 4B.

(1) A person who, being outside commit offences under this A ct.

Kenya, conspires with a person who is in Kenya to commit an offence under this Act in any place outside Kenya being an act which if committed in Kenya, would constitute an offence under this A ct shall be deemed to have conspired to commit that act in Kenya.

(2) A person who, being in Kenya, conspires with a person who is outside Kenya to commit an offence under this Act in Kenya shall be deemed to have conspired in Kenya to carry out that act.

(3) A person who, being outside Kenya, conspires with a person who is outside 56 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022 No.

4 Kenya to carry out an offence under this Act in Kenya shall be deemed to have conspired in Kenya to do that act.

(4) A person who being in Kenya, conspires with another person who is also in Kenya to commit an offence under this Act in Kenya or outside Kenya commits an offence.

(5) A person who conspires to commit an offence under this section commits an offence and is liable, on conviction, to a fine of not l ess than one hundred million shillings and to imprisonment for life.

Amendment of 6.

Section 5 of the principal Act is amended by section 5 of No.5 deleting subsection (1) and substituting therefor the of 1994.

following new subsection (1) Subject to this Act, any person who (a) smokes, inhales, sniffs or otherwise uses any narcotic drug or psychotropic substance; (b) without lawful and reasonable excuse, is found in any house, room or place to which persons resort for the purpose of smoking, inhaling, sniffing or otherwise using any narcotic drug or psychotropic substance; (c) being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of the preparation of opium for smoking or sale, or the smoking, inhaling, sniffing or otherwise using any narcotic drug or psychotropic substance, commits an offence and shall on conviction, be li able to a fine of not less than (i) two hundred and fifty thousand shillings or a term of imprisonment of not less than five years or to both such fine and imprisonment if the offence relates to paragraphs (a) or (b); or (ii) twenty million shillings or a term of imprisonment of not less than ten years or to 57 2022 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) ^ o.

4 both such fine and imprisonment, if the offence relates to paragraph (c).

of 7.

The principal Act is amended by inserting the insertion ^ j - 1 JT,.

^ c sections 5A and 5B i nto no4 of 1994 following new sections immediately after section 5r/Tb^an owner owner, occupicr Of person any ocLpilr^orTpTrson conccmed witli the management of concerned with the premises, shall keep a register in his management of a premises, and shall enter or cause to be premise.

entered in the register the name and address of every tenant and occupier who occupies the premises, and such other particulars as may be prescribed.

(2) An owner, occupier or person concerned with the management of any premises, shall enter or cause to be entered regularly in a book kept for the purpose, all such particulars, other than particulars prescribed in respect of the register required under subsection (1) to be kept, as may be prescribed.

(3) A person who fails to comply with this section, or who makes or causes or permits to be made in any register or book required in this section to be kept, any entry which he knows or has reason to believe to be false, shall be guilty of an offence and is li abl e to af ine of not less than one m illion shillings or to a term of imprisonment of not less than two years, or both such fine and imprisonment.

Offences relating to 5B(1) Subject to this Act, any person operation of who- clandestine laboratory.

(a) operates a clandestine laboratory; or (b) being the owner, occupier or person concerned with the management of any premises, permits the premises to be used for the purpose of operating 58 No.

4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022 a clandestine laboratory shall be guilty of an offence and is liable to a fine of not less than twenty million shillings or a term of imprisonment of not less than twenty years, or both such fine and imprisonment.

(2) It shall be a defence if a person who is an owner, occupier or a person concerned with the management of any premises, complies with section 5A.

Insertion of 8.

The principal Act is amended by inserting the section 17A into following new section immediately after section 17 No.

4 of 1994.

Penalty for law 17A.

(1) A law enforcement officer or a enforcement officers.

public officer who aids or abets any offence under this Act including through concealing the commission of any offence or colluding with any person suspected of committing an offence under this Aet, commits an offence and shall be liable upon conviction to a fine of not less than twenty million shillings and imprisonment for a term of not less than twenty years.

(2) Any person who, being employed as a law enforcement officer or a puWic officer, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, commits an offence and shall, upon conviction, be liable to a fine of not less than or three hundred thousand shillings imprisonment for a term of not less than five years, or to both.

Amendment of 9.

Section 58 of the principal Act is amended in section 58 of No.5 subsection (2) by deleting the words Attorney-General of 1994.

and substituting therefor the words Director of Public Prosecutions.

Amendment of 10.

Section 59 of the principal Act is amended by section 59 of No.5 after inserting the following new subsection immediately of 1994.

subsection (2) 59 2022 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) j^o.

4 (3) The Director of Public Prosecutions, may request for information, evidence and particulars, where any person, including a foreign government, state or organization or entity alleges or has information that any person in Kenya has committed an offence under this Act, and shall upon receiving such information, evidence and particulars carry out the same in accordance with the law.

I nsertion of 11.

The principal Act is amended by inserting the sections 80A, SOB and 80C into No.

following new sections immediately after section 80 4 of 1994.

Power to intercept 80A.

(1) Subject to subsection (2), a communication and police officer above the rank of Chief the admissibility of intercepted Inspector of Police may, for the purpose of com m unication.

obtaining evidence of the commission of an offence under this Act, apply ex parte, to the High Court for an interception of communications order.

(2) A police officer shall not make an application under subsection (1) unless he has applied for and obtained the written consent of theD irector of Public Prosecutions.

(3) The Court shall, in determining an application under subsection (1), make an order communications a (a) requiring service provider to intercept and retain specified communication of a specified description received or about tobeor transmitted, received or transmitted by that communications service provider; or (b) authorizing the police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication and to r em ove and retain such dev ice.

60 No.

4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022 (4) The Court shall not make an order under subsection (3) unless it is satisfied that the information to be obtained relates to (a) the commission of an offence under this Act; or (b) the whereabouts of the person suspected by the police officer to have committed the offence.

(5) Any information contained in a communication (a) intercepted and retained pursuant to an order under subsection (3); or (b) intercepted and retained in a foreign state in accordance with the law of that foreign state and certified by a Court of that foreign state to have been so intercepted and retained, shall, subj ect to the provisions of any other written law, be admissible in proceedings for an offence under this A ct.

(6) A police officer who intercepts communication other than is provided fo r under this section commits an offence and shall on conviction be li able to imprisonment for a term not exceeding ten years or to a fine of not less than ten million shillings or to both.

Duty to disclose SOB.

(1) A person who has any information relating i nformation that is relevant in to of fences committed under this (a) preventing the commission of an Act, etc.

offence under this Act; or (b) securing the arrest or prosecution of another person f or an offence committed under this Act, shall disclose the information to a police officer.

61 2022 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 4 (2) A person who conceals or fails to disclose information that is relevant in the investigation or prosecution of another person for an offence committed under this Act, commits an offence.

(3) A person who contravenes subsection (1) commits an offence and is li abl e on conviction to af ine of not less than one million or imprisonment of a term of not less than five years, or both.

(4) No civil or criminal proceedings shall lie against any person for disclosing any i nf ormation, in good f aith, under subsection (1).

Collection of 80C.

A person who, in committing or i nform ation.

in instigating, preparing or facilitating the commission of an offence under this Act, holds, collects, generates or transmits i nf ormation for the use in the commission of an offence under this Act, commits an offence, and is liable, on conviction, to afi ne of not l ess t han five million or to imprisonment of a term of not less than five years, or both.

Amendment of 12.

The principal Act is amended in section 81 by section 81 of No.

5 of 1994.

deleting paragraph (b).

Amendment of 13.

Section 85 of the principal Act is amended section 85 of No.

5 of 1994.

(a) in subsection (1) by deleting the words not exceeding two hundred and fifty thousand shillings or imprisonment for a term not exceeding five years or to both such fine and imprisonment and substituting therefor the words not less than five million shillings and imprisonment for a term of not less than five years , one (b) in subsection (2) by deleting the words hundred thousand shillings or to imprisonment for three years and in the case of a continuing offence to a further penalty of twenty thousand shillings and substituting therefor the words not less than 62 No.

4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022 two million shillings and imprisonment for a term of not less than three years and in the case of a continuing offence to a further penalty of one hundred thousand shillings.

Insertion of new 14.

The principal Act is amended by inserting the section 85A into following new section immediately after section 85 No.5 of 1994.

Disqualifi cation if 85A.

A person who is convicted of convicted of an offence under this an offence under this Act shall be Act.

disqualified from being elected or appointed as a public officer for thirty years after the conviction.

Amendment of the 15.

The principal Act is amended by inserting the First Schedule to word tramadol in the First Schedule.

No.

4 of 1994.

Amendment of the 16.

The principal Act is amended by inserting the Second Schedule to word ketamine in the Second Schedule.

No.

4 of 1994.

Insertion of a new 17.

The principal Act is amended by inserting the Schedule into No.

4 following new Schedule immediately after the Third of 1994.

Schedule FOURTH SCHEDULE (section 2) Ephedrine Ergometrine Ergotamine Lysergicacid l-phenyl-2-propanone Pseudoephedrine Acetic anhydride Acetone Anthranilic acid Ethyl ether Phenylacetic acid Piperidine The salts of the substances listed in this Schedule whenever the existence of such salts is possible.

.