Counter-Trafficking in Persons Act

Section 1. Short title Section This Act may be cited as the Counter-Trafficking in Persons Act. [ Act No. 12 of 2012 , Sch.]

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Advisory Committee" means the Counter-Trafficking in Persons Advisory Committee established under section 19 ; "Board of Trustees" means the Board of Trustees of the Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") established by section 24 ; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to women and children; "child" has the meaning assigned to it in the Children Act ( Cap. 141 ); "consent" in relation to a person means that the person agrees by choice, and has the freedom and capacity to make that choice; "exploitation" includes but is not limited to— (a) keeping a person in a state of slavery ; (b) subjecting a person to practices similar to slavery ; (c) involuntary servitude; (d) forcible or fraudulent use of any human being for removal of organs or body parts; (e) forcible or fraudulent use of any human being to take part in armed conflict; (f) forced labour ("the extraction of work or services from any person for the purpose of exploitation;") ; (g) child labour; (h) sexual exploitation;...

Section 3. Trafficking in persons Section 3(1)(a) threat or use of force or other forms of coercion; Section 3(1)(b) abduction; Section 3(1)(c) fraud; Section 3(1)(d) deception; Section 3(1)(e) abuse of power or of position of vulnerability; Section 3(1)(f) giving payments or benefits to obtain the consent of the victim of trafficking in persons ("a person who is being or has been trafficked as defined in") ; or Section 3(1)(g) giving or receiving payments or benefits to obtain the consent of a person having control over another person. Section 3(2) The consent of a victim of trafficking in persons ("a person who is being or has been trafficked as defined in") to the intended exploitation shall not be relevant where any of the means set out in subsection (1) have been used. Section 3(3) The recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered " trafficking in persons " even if this does not involve any of the means set out in subsection (1) of this Act. Section 3(4) An act of trafficking in persons may be committed internally within the borders of Kenya or internationally across the borders of Kenya. Section 3(...

Section 4. Acts that promotechildtrafficking Section 4(1)(a) adopts a child or offers a child for adoption; Section 4(1)(b) fosters a child or offers a child for fostering; or Section 4(1)(c) offers guardianship to a child or offers a child for guardianship, Section 4(2) A person who initiates or attempts to initiate adoption, fostering or guardianship proceedings for the purpose of subsection (1) commits an offence. Section 4(3) A person who commits an offence under this section is liable to imprisonment for a term of not less than thirty years or to a fine of not less than twenty million shillings or to both and upon subsequent conviction, to imprisonment for life.

Section 5. Promotion oftrafficking in persons Section knowingly leases, or being the occupier thereof, permits to be used any house, building, or other premises for the purpose of promoting trafficking in persons ;

Section 6. Acquisition of travel documents by fraud or misrepresentation Section A person who knowingly misrepresents any fact for purposes of facilitating the acquisition of travel documents or fraudulently obtains any document from Government agencies, in order to assist in the commission of an offence of trafficking in persons commits an offence and is liable to imprisonment for a term of not less than ten years or to a fine of not less than ten million shillings or to both and upon subsequent conviction, to imprisonment for a term of not less than ten years without the option of a fine.

Section 7. Facilitating entry into or exit out of the country Section A person who facilitates, aids or abets the exit or entry of persons from or to the country at international and local airports, territorial boundaries and seaports for the purpose of promoting trafficking in persons commits an offence and is liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for a term of not less than thirty years without the option of a fine.

Section 8. Interfering with travel documents and personal effects Section confiscates, conceals, alters, destroys or in any other manner deals with any identification or travel documents, of another person in furtherance of trafficking in persons or in order to prevent that other person from leaving the country or seeking redress from the Government or appropriate agencies; or

Section 9. Life threatening circumstances or death Section a victim of trafficking in persons ("a person who is being or has been trafficked as defined in") suffers any permanent or life-threatening bodily harm; or

Section 10. Trafficking in persons for organized crime Section Where in the course of the prosecution of a person under this Act it emerges that, the person being prosecuted engaged in trafficking in persons as part of the activities of an organized criminal group ("a structured group of three or more persons, acting in concert with the aim of committing one or more serious crimes or offences under this Act, in order to obtain directly or indirectly, a financial or other material benefit;") or that person organized or directed other persons to commit an offence as an activity of an organized group, that person is liable to imprisonment for life.

Section 11. Confidentiality Section 11(1) Law enforcement officers or the court and any other person involved in the investigation or trial of an offence under this Act, shall throughout the investigation or trial observe the right to privacy of the victim of trafficking in persons ("a person who is being or has been trafficked as defined in") and of the witnesses. Section 11(2) The court dealing with the trial of an offence under this Act, may after considering all circumstances and for the best interest of the parties, order that the trial be held in camera. Section 11(3) A person who discloses the name and personal circumstances of the victim of trafficking in persons ("a person who is being or has been trafficked as defined in") or any other information tending to establish the identity of a victim of trafficking in persons ("a person who is being or has been trafficked as defined in") and the circumstances of trafficking in persons commits an offence. Section 11(4) Where a trial is conducted in camera, any person who publishes the proceedings of the court commits an offence. Section 11(5) A person who commits an offence under this section is liable to imprisonment for a term o...

Section 12. Victim impact statement Section towards or in connection with the person concerned; or

Section 13. Restitution Section the costs of any medical or psychological treatment;

Section 14. Victim immunity from prosecution Section Notwithstanding the provisions of any other law, a victim of trafficking in persons ("a person who is being or has been trafficked as defined in") shall not be criminally liable for any offence related to being in Kenya illegally or for any criminal act that was a direct result of being trafficked.

Section 15. Support and protection of victims oftrafficking in persons Section 15(1)(a) return to and from Kenya; Section 15(1)(b) resettlement; Section 15(1)(c) re-integration; Section 15(1)(d) appropriate shelter and other basic needs; Section 15(1)(e) psychosocial support; Section 15(1)(f) appropriate medical assistance; Section 15(1)(g) legal assistance or legal information, including information on the relevant judicial and administrative proceedings; or Section 15(1)(h) any other necessary assistance that a victim may require. Section 15(2) When developing the plans under subsection (1), the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") shall consider the age, gender, and the special needs of children and persons with disabilities and the personal circumstances of each victim of trafficking in persons ("a person who is being or has been trafficked as defined in") . Section 15(3) Victims of trafficking in persons may be eligible to work for gain for the duration of their necessary presence in Kenya. Section 15(4) Notwithstanding the provisions of any other law, the victims of trafficking in persons shall...

Section 16. Trafficked person exempt from paying fees in civil suits Section Where a victim of a trafficking in persons offence institutes civil action for damages, the victim of trafficking in persons ("a person who is being or has been trafficked as defined in") shall be exempt from the payment of court fees.

Section 17. Confiscation and forfeiture ofproceeds of crime Section 17(1) In addition to any other penalty prescribed for an offence under this Act and under any other written law, the Court may order the confiscation and forfeiture, of all the proceeds of crime ("any property derived from or obtained, directly or indirectly, through the commission of an offence under this Act;") in favour of the Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") . Section 17(2) All awards for damages shall be taken from the personal and separate property of the person who committed the offence and where the property is insufficient, the balance shall be taken from the Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") . Section 17(3) Where the proceeds of crime ("any property derived from or obtained, directly or indirectly, through the commission of an offence under this Act;") are destroyed, diminished in value or otherwise rendered worthless by any act or omission of the person who committed the offence, directly or indirectly, or have concealed, removed, converted or transferred to prevent them from b...

Section 18. Repatriation of trafficked persons to and from Kenya Section 18(1) Subject to this Act the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") responsible for immigration matters may arrange for the repatriation of the victims of trafficking in persons to their place of origin. Section 18(2) Where a Kenyan victim of trafficking in persons ("a person who is being or has been trafficked as defined in") across the borders does not have proper documentation, the Government shall issue the necessary travel documents to enable the victim of trafficking in persons ("a person who is being or has been trafficked as defined in") to travel and re-enter the country. Section 18(3) Where, in the opinion of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") for the time being in charge of immigration, the repatriation of a victim of trafficking in persons ("a person who is being or has been trafficked as defined in") from Kenya is likely to or would expose the trafficked person to danger, the Cabinet Secretary ("the Cabinet Secretary for the time b...

Section 19. Establishment of theAdvisory Committee Section 19(1) There is established a Committee to be known as the Counter Trafficking in Persons Advisory Committee ("the Counter-Trafficking in Persons Advisory Committee established under;") . Section 19(2)(a) the Principal Secretary in the Ministry responsible for matters relating to immigration; Section 19(2)(b) the Principal Secretary in the Ministry responsible for matters relating to foreign affairs; Section 19(2)(c) the Principal Secretary in the Ministry responsible for matters relating to gender and children; Section 19(2)(d) the Principal Secretary in the Ministry responsible for matters relating to labour; Section 19(2)(e) the Attorney-General; Section 19(2)(ea) the Director of Public Prosecutions; Section 19(2)(f) the Inspector-General of Police; Section 19(2)(g) a representative of the Kenya National Commission for Human Rights; Section 19(2)(h) two representatives from civil society nominated by the respective civil societies dealing with issues relating to women; and children with proven record of involvement in the prevention and suppression of trafficking in persons ; Section 19(2)(i) one person nominated by the C...

Section 20. Functions of theAdvisory Committee Section 20(1) The functions of the Advisory Committee ("the Counter-Trafficking in Persons Advisory Committee established under;") shall be to advise the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") on inter-agency activities aimed at combating trafficking and the implementation of preventive, protective and rehabilitative programmes for trafficked persons. Section 20(2)(a) formulation of a comprehensive and integrated program to prevent and suppress the trafficking in persons ; Section 20(2)(b) coordination of policies and programmes of the agencies to effectively address the issues and problems attendant to trafficking in persons ; Section 20(2)(c) coordination of the dissemination of information on the law and the issues relating to trafficking in persons through concerned agencies and non-governmental organizations; Section 20(2)(d) formulation of programmes for the reintegration of both locally and internationally trafficked persons; Section 20(2)(e) monitoring and evaluation of the progress of Kenya with respect to prevention, protection and prosecution eff...

Section 21. Reporting requirements Section The Advisory Committee ("the Counter-Trafficking in Persons Advisory Committee established under;") shall submit to the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") and to the National Assembly, an annual report of the policies, programmes and activities relating to the implementation of this Act.

Section 22. Establishment of TrustFund Section 22(1) There is established a Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") to be known as the National Assistance Trust Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") for Victims of Trafficking in persons which shall be administered by the Board of Trustees ("the Board of Trustees of the Fund established by;") . Section 22(2) The Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") shall be used for the assistance of victims of trafficking in persons .

Section 23. Sources of theFund Section 23(1)(a) such monies as may be appropriated by Parliament for the purposes of the Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") ; Section 23(1)(b) any proceeds of crime ("any property derived from or obtained, directly or indirectly, through the commission of an offence under this Act;") confiscated or forfeited under section 17 ; Section 23(1)(c) income generated by investments made by the Board of Trustees ("the Board of Trustees of the Fund established by;") ; and Section 23(1)(d) any donation received by the Board of Trustees ("the Board of Trustees of the Fund established by;") for purposes of the Fund ("the National Assistance Trust Fund for Victims of Trafficking in persons established by;") . Section 23(2)(a) the expenses arising out of assistance to the victims of trafficking in persons in the manner referred to in section 15 ; Section 23(2)(b) the balance of damages under section 17 (2); and Section 23(2)(c) such other purposes as the Advisory Committee ("the Counter-Trafficking in Persons Advisory Committee established under;") may recommend.

Section 24.Board of Trustees Section 24(1)(a) the Chairman of the Advisory Committee ("the Counter-Trafficking in Persons Advisory Committee established under;") ; Section 24(1)(b) the Principal Secretary of the Ministry responsible for gender and children; Section 24(1)(c) a representative of the Ministry responsible for gender and children, appointed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") , who shall be the Secretary; Section 24(1)(d) a representative of the Ministry responsible for finance, appointed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to women and children;") responsible for finance; Section 24(1)(e) one person conversant with issues relating to trafficking in persons ; and Section 24(1)(f) one person with experience in financial management, who shall be the treasurer of the Board of Trustees ("the Board of Trustees of the Fund established by;") . Section 24(2) The members of the Board of Trustees ("the Board of Trustees of the Fund established by;") under subsection (1)(e) and (f) shall be appointed by the Cabinet Secretary ("t...

Section 25. Extra-territorial jurisdiction Section 25(1) A citizen of Kenya, or a person who permanently resides in Kenya, who commits an act outside Kenya that constitutes an offence under this Act if committed in Kenya, commits such an offence and is liable on conviction to the same penalty prescribed for such offence under this Act. Section 25(2) A person may not be convicted of an offence under subsection (1) if such a person has been acquitted or convicted in the country where that offence was committed.

Section 26. Other penalties Section 26(1) Where a person who is not a citizen has been convicted of an offence under this Act, the person shall be deported immediately after serving the sentence and shall stand barred permanently from re-entering Kenya. Section 26(2) Any employee or official of a Government agency who knowingly issues or approves the issuance of travel documents or other documents to any person or who fails to observe the prescribed procedures and the requirement as provided for in any law, with the intention of assisting in the commission of an offence under this Act, commits an offence and is liable to imprisonment for a term of not less than - shillings, or to both. Section 26(3) Where an offender had adopted, fostered or had a child in guardianship who is the subject of an offence under this Act, the court seized of the matter shall rescind the adoption, fostering or guardianship of the child and the child shall be dealt with in accordance with the provisions of the Children Act ( Cap. 141 ).

Section 27. Consequential amendments Section The Acts identified in the Second Schedule are amended in the manner set out in that Schedule.

Section 28. Regulations Section any matter which is required or permitted by this Act to be prescribed;