Commission on Administrative Justice Act

Section 1. Short title Section This Act may be cited as the Commission on Administrative Justice Act.

Section 2. Interpretation Section 2(1)(a) a decision made or an act carried out in the public service; Section 2(1)(b) a failure to act in discharge of a public duty required of an officer in public service; Section 2(1)(c) the making of a recommendation to a Cabinet Secretary; or Section 2(1)(d) an action taken pursuant to a recommendation made to a Cabinet Secretary; Section 2(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”.

Section 3. Establishment of the Commission Section 3(1) There is established a Commission to be known as the Commission on Administrative Justice. Section 3(2) The Commission shall be the successor to the Public Complaints Standing Committee existing immediately before the coming into force of this Act.

Section 4. Status of successor Commission Section 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.

Section 5. Powers of Commission as a body corporate Section acquire, hold, charge and dispose of movable and immovable property; and

Section 6. Headquarters Section The headquarters of the Commission shall be in the capital city, but the Commission may establish branches at any place in Kenya.

Section 7. Guiding principles of Commission Section the diversity of the people of Kenya;

Section 8. Functions of the Commission Section 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;

Section 9. Membership of Commission Section The Commission shall consist of a Chairperson and two other members appointed in accordance with the Constitution and the provisions of this Act.

Section 10. Qualifications for appointment of Chairperson and members Section 10(1)(a) has knowledge and at least fifteen years experience in matters relating to human rights, law, conflict resolution, arbitration or administrative justice; Section 10(1)(b) holds a degree from a university recognized in Kenya; and Section 10(1)(c) meets the requirements of Chapter Six of the Constitution. Section 10(2)(a) holds a degree from a university recognized in Kenya; Section 10(2)(b) law; Section 10(2)(b)(i) law; Section 10(2)(b)(ii) public administration; Section 10(2)(b)(iii) economics or finance; Section 10(2)(b)(iv) gender and social development; Section 10(2)(b)(v) human rights; Section 10(2)(b)(vi) conflict resolution; Section 10(2)(b)(vii) management; or Section 10(2)(b)(viii) social sciences; Section 10(2)(c) has had a distinguished career in their respective fields; and Section 10(2)(d) meets the requirements of Chapter Six of the Constitution. Section 10(3)(a) is a member of Parliament or a County Assembly; Section 10(3)(b) is a member of the governing body of a political party; Section 10(3)(c) is a member of a local authority; Section 10(3)(d) is an undischarged bankrupt; or Sec...

Section 11. Procedure for appointment of Chairperson and members Section 11(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. Section 11(2)(a) Office of the President; Section 11(2)(b) Office of the Prime Minister; Section 11(2)(c) Ministry responsible for matters relating to justice; Section 11(2)(d) Public Service Commission; Section 11(2)(e) the Association of Professional Societies in East Africa; and Section 11(2)(f) the National Council for Persons with Disabilities. Section 11(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. Section 11(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. Section 11(5) The selection panel shall, within seven days o...

Section 12. Oath of office Section The Chairperson, members and the secretary shall each make and subscribe, before the Chief Justice, to the oath or affirmation set out in the First Schedule.

Section 13. Powers of the Chairperson Section 13(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. Section 13(2)(a) preside over all meetings of the Commission; Section 13(2)(b) be the spokesperson for the Commission; and Section 13(2)(c) supervise and direct the work of the Commission. Section 13(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.

Section 14. Tenure of office Section 14(1) The Chairperson and members of the Commission shall be appointed for a single term of six years and shall not be eligible for re-appointment. Section 14(2) The Chairperson and members of the Commission shall serve on a full-time basis.

Section 15. Vacancy of office of Chairperson and members Section 15(1)(a) dies; Section 15(1)(b) by notice in writing addressed to the President resigns from office; Section 15(1)(c) is removed from office under any of the circumstances specified in Article 251 and Chapter Six of the Constitution. Section 15(2) The President shall notify every resignation, vacancy or termination in the Gazette within seven days.

Section 16. Removal from office Section The Chairperson or member of the Commission may be removed from office in accordance with Article 251 of the Constitution.

Section 17. Filling of vacancy Section 17(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. Section 17(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.

Section 18. Committees of the Commission Section 18(1) The Commission may, from time to time establish, committees for the better carrying out of its functions. Section 18(2)(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; Section 18(2)(b) hire such experts or consultants as are necessary for the functions of the Commission.

Section 19. Procedures of the Commission Section 19(1) The business and affairs of the Commission shall be conducted in accordance with the Second Schedule. Section 19(2) Except as provided in the Second Schedule, the Commission may regulate its own procedure.

Section 20. Terms and conditions of service Section 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.

Section 21. Appointment of secretary Section 21(1) The appointment of the secretary to the Commission under Article 250(12) of the Constitution shall be through a competitive recruitment process. Section 21(2)(a) is a citizen of Kenya; Section 21(2)(b) holds a degree from a university recognized in Kenya; Section 21(2)(c) has had at least ten years proven experience at management level; and Section 21(2)(d) meets the requirements of Chapter Six of the Constitution. Section 21(3) The secretary shall be the chief executive officer of the Commission and head of the secretariat and shall be responsible to the Commission. Section 21(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.

Section 22. Removal of secretary Section 22(1)(a) inability to perform the functions of the office of secretary arising out of physical or mental incapacity; Section 22(1)(b) gross misconduct or misbehaviour; Section 22(1)(c) incompetence or neglect of duty; Section 22(1)(d) violation of the Constitution; or Section 22(1)(e) any other ground that would justify removal from office under the terms and conditions of service. Section 22(2)(a) sufficient notice of the allegations made against him or her; and Section 22(2)(b) an opportunity to present his or her defence against the allegations.

Section 23. Appointment of staff Section 23(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. Section 23(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. Section 23(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. Section 23(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.

Section 24. The common seal of the Commission Section 24(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. Section 24(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.

Section 25. Protection from personal liability Section 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.

Section 26. General powers of Commission Section issue summons as it deems necessary for the fulfilment of its mandate;

Section 27. Powers of a court Section 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;

Section 28. Powers relating to investigations Section 28(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. Section 28(2)(a) summon and enforce the attendance of any person for examination; Section 28(2)(b) require the discovery and production of any document; and Section 28(2)(c) subject to the Constitution and any written law requisition any public records or copy thereof from any public officer. Section 28(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. Section 28(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. Section 28(5) The Commission shall satisfy itself on the correctness of the facts stated and the conclusion, if any, arrive...

Section 29. Jurisdiction in investigations Section 29(1)(a) a public office; Section 29(1)(b) a state corporation within the meaning of the State Corporations Act ( Cap. 446 ); or Section 29(1)(c) any other body or agency of the State. Section 29(2) The Commission shall endeavour to resolve any matter brought before it by conciliation, mediation or negotiation. Section 29(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.

Section 30. Limitation of jurisdiction Section proceedings or a decision of the Cabinet or a committee of the Cabinet;

Section 31. Power not limited by other provisions Section 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.

Section 32. Complaints Section 32(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). Section 32(2)(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 Section 32(2)(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.

Section 33. Form of complaint Section 33(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. Section 33(2) Where a complaint under subsection (1) is made orally, the Commission shall cause the complaint to be recorded in writing. Section 33(3) A complaint under subsection (1) shall be in such form and contain such particulars as the Commission may prescribe. Section 33(4)(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 Section 33(4)(b) without prejudice to paragraph (a), initiate such inquiry as it considers necessary, having regard to the nature of the complaint. Section 33(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. Section 33(6) If on receipt of the information or report the Commission is satisfied either that no further action is required or that the required actio...

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

Section 35. Notice if complaint not investigated Section 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.

Section 36. Representations if adverse findings,etc. Section 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.

Section 37. Notice of investigation to organization Section 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.

Section 38. Hearings of Commission Section The hearings of the Commission during an inquiry shall be open to the public, except where the Commission otherwise decides.

Section 39. Persons likely to be prejudiced or affected to be heard Section 39(1)(a) considers it necessary to inquire into the conduct of any person; or Section 39(1)(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. Section 39(2) This section shall not apply where the credibility of a witness is being impeached.

Section 40. Statements made by persons to the Commission Section 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.

Section 41. Action after inquiry Section 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;

Section 42. Report to organization Section 42(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. Section 42(2)(a) the findings of the investigation and any recommendations made by the Commission; Section 42(2)(b) the action the Commission considers should be taken and the reasons for the action; and Section 42(2)(c) any recommendation the Commission considers appropriate. Section 42(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. Section 42(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.

Section 43. Report to the complainant Section The Commission shall inform the complainant on the results of the investigation in writing.

Section 44. Report of misconduct to appropriate authority Section 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.

Section 45. Funds of the Commission Section monies allocated by Parliament for the purposes of the Commission;

Section 46. Financial year Section The financial year of the Commission shall be the period of twelve months ending on the thirtieth of June in each year.

Section 47. Annual estimates Section 47(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. Section 47(2)(a) payment of the salaries, allowances and other charges in respect of the staff of the Commission; Section 47(2)(b) payment of pensions, gratuities and other charges and in respect of benefits which are payable out of the funds of the Commission; Section 47(2)(c) maintenance of the buildings and grounds of the Commission; Section 47(2)(d) funding of training, research and development of activities of the Commission; Section 47(2)(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. Section 47(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. Section 47(4) No expenditure shall be incurred for the purposes of the Commission except in a...

Section 48. Accounts and audit Section 48(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. Section 48(2)(a) statement of the income and expenditure of the Commission during that year; and Section 48(2)(b) statement of the assets and liabilities of the Commission on the last day of that financial year. Section 48(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 (Cap. 412B).

Section 49. Bank accounts Section The Commission shall open and maintain such bank accounts as shall be necessary for the performance of its functions.

Section 50. Management of information Section 50(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. Section 50(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. Section 50(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 Commission’s findings and recommendations of the Commission.