National Cohesion and Integration Act

Section 1. Short title Section This Act may be cited as the National Cohesion and Integration Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to justice and human rights; "Commission" means the National Cohesion and Integration Commission established by section 15 ; "commissioner" means a member of the Commission appointed under section 17 ; "development issues" includes issues relating to development in socio- cultural, political and economic sectors; "discrimination" means discrimination as defined under sections 3 and 4 of this Act; "employment" means a situation where an employee does his work wholly or partly in Kenya, (for a fee or not), for the employer; or where the employee does work for the employer outside Kenya and the employee is ordinarily resident in Kenya, either at the time he applies for the job or at any time during the course of the employment and includes a situation where the employer is working through a representative, assign or where he has sub-contracted the employment; "establishment" means a place of employment including aboard a ship or aeroplane registered in Kenya but operating internationally; "ethnic group...

Section 3. Ethnic discrimination Section 3(1)(a) on ethnic grounds he treats that other person less favourably than he treats or would treat other persons; or Section 3(1)(b) which is such that the proportion of persons of the same ethnic group as that other person who can comply with it is considerably smaller than the proportion of persons not of that ethnic group who can comply with it; and Section 3(1)(b)(i) which is such that the proportion of persons of the same ethnic group as that other person who can comply with it is considerably smaller than the proportion of persons not of that ethnic group who can comply with it; and Section 3(1)(b)(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it applied; and Section 3(1)(b)(iii) which is to the detriment of that other person because he cannot comply with it. Section 3(2)(a) which put or would put persons of the same race or ethnic or national origins as that other person at a particular disadvantage when compared with other persons; Section 3(2)(b) which puts that other person at that disadvantage; and Section 3(2)(c) which he cannot show t...

Section 4. Discrimination by way of victimization Section brought proceedings against the discriminator or any other person under this Act;

Section 5. Comparison of persons of different ethnic groups Section A comparison of the case of a person of a particular ethnic group with that of a person not of that group under sections 3 and 4 shall be such that the relevant circumstances in the one case are the same, or not materially different, in another.

Section 6. Harassment on the basis of ethnicity Section 6(1)(a) violating that other person’s dignity; or Section 6(1)(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Section 6(2) Conduct shall be regarded as having the effect specified in subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.

Section 7. Discrimination in employment Section 7(1) All public establishments shall seek to represent the diversity of the people of Kenya in the employment of staff. Section 7(2) No public establishment shall have more than one third of its staff from the same ethnic community. Section 7(3)(a) in the arrangements he makes for the purpose of determining who should be offered that employment; Section 7(3)(b) in the terms he offers him that employment; or Section 7(3)(c) by refusing or deliberately omitting to offer him that employment. Section 7(4)(a) in the terms of employment in which he affords him; Section 7(4)(b) in the way he affords him access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or Section 7(4)(c) by dismissing him, or subjecting him to any other detriment. Section 7(5) It is unlawful for an employer, his representatives or assigns, in relation to employment by him at an establishment, to subject to harassment a person whom he employs or who has applied to him for employment. Section 7(6) Except in relation to discrimination falling within...

Section 8. Exceptions to discrimination in the employment field Section 8(1)(a) being of a particular race or particular ethnic or national origin is a genuine and determining occupational requirement; Section 8(1)(b) it is appropriate to apply that requirement in the particular case and the person to whom that requirement is applied does not meet it; Section 8(1)(c) the job involves cultural entertainment in a capacity for which a person of that ethnic group is required for reasons of authenticity; or Section 8(1)(c)(i) the job involves cultural entertainment in a capacity for which a person of that ethnic group is required for reasons of authenticity; or Section 8(1)(c)(ii) the job involves a work of art, visual image or sequence of visual images for which a person of that ethnic group is required for reasons of authenticity; or Section 8(1)(c)(iii) the holder of the job provides persons of that ethnic group with personal services promoting their welfare, and those services can most effectively be provided by a person of that ethnic group. Section 8(2)(a) who are capable of carrying out the duties falling specified within that paragraph; and Section 8(2)(b) whom it would be reaso...

Section 9. Discrimination in membership of organizations Section 9(1)(a) in the terms in which it is prepared to admit him to membership; or Section 9(1)(b) by refusing or deliberately omitting to accept his application for membership. Section 9(2)(a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or Section 9(2)(b) by depriving him of membership, or varying the terms on which he is a member; or Section 9(2)(c) by subjecting him to any other detriment. Section 9(3) It is unlawful for an organization to which this section applies, in relation to a person’s membership or application for membership of that organization, to subject him to harassment. Section 9(4) Subsection (1) shall not apply to cases where membership is limited to a given religious persuasion or profession.

Section 10. Discrimination by other agencies Section 10(1) Unless as provided under subsection (2), it is unlawful for a qualifying body, licensing authority, planning authority, public authority, employment agency, educational establishment or body offering training, to discriminate against prospective and current clients in the provision of services. Section 10(2)(a) where it is proven that the alleged discriminatory act is a necessary requirement in the nature of business transaction and there is no alternative way of realizing this goal; Section 10(2)(b) in relation to any judicial act (whether done by a court of law, tribunal or other person); or Section 10(2)(b)(i) in relation to any judicial act (whether done by a court of law, tribunal or other person); or Section 10(2)(b)(ii) any act done on the instructions, or on behalf, of a person acting in a judicial capacity; or Section 10(2)(b)(iii) an action undertaken by the Cabinet Secretary for Immigration, under the Kenya Citizenship and Immigration Act (Cap. 170), in relation to cases relating to immigration and nationality.

Section 11. Discrimination in access to and distribution of public resources Section 11(1) Public resources shall be distributed equitably as far as is practicable geographically to take into account Kenya’s diversity population and poverty index. Section 11(2) It shall be unlawful for any public officer, while in charge of public resources and without justification, to distribute resources in an ethnically inequitable manner. Section 11(3)(a) the officer fails to use the criteria established under this Act or any other law in allocating resources by regions; Section 11(3)(b) specific regions consistently receive more resources than other regions and there is no clear justification for it; or Section 11(3)(c) more resources are allocated to regions that require remedial resources than to areas that require start up resources.

Section 12. Discrimination in property ownership, management and disposal Section 12(1)(a) in the terms in which he offers, lets, manages or disposes to him the property; Section 12(1)(b) by unjustifiably refusing his proposal for sale or engagement in the person’s business, where the same conditions do not apply to others who are not of the same ethnic group as the person; Section 12(1)(c) in his treatment of him in relation to any list of person in need of property of that description. Section 12(2)(a) in the way he affords him access to any benefits of facilities, or by refusing or deliberately omitting to afford him access to them; or Section 12(2)(b) by evicting him or subjecting him to any other detriment. Section 12(3) It is unlawful for a person, in relation to such premises as are referred to subsection (1) or (2), to subject a person who applies for, or as the case may be, occupies such premises, to harassment.

Section 13. Hate speech Section 13(1)(a) uses threatening, abusive or insulting words or behaviour, or displays any written material; Section 13(1)(b) publishes or distributes written material; Section 13(1)(c) presents or directs the performance the public performance of a play; Section 13(1)(d) distributes, shows or plays, a recording of visual images; or Section 13(1)(e) provides, produces or directs a programme, which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior, Section 13(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both. Section 13(3) In this section, "ethnic hatred" means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

Section 14. Exceptions to Part Section 14(1)(a) in affording persons of a particular ethnic group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits; Section 14(1)(b) by a person on grounds other than race or ethnic or national origins for the benefit of persons who are not Kenyan in affording them access to facilities for education or training or any ancillary benefits, where it appears to him that the persons in question do not intend to remain in Kenya after the period of education and training there. Section 14(2)(a) affording only persons of a particular racial group access to facilities for training which would help to equip them for that work; or Section 14(2)(b) there were no persons of that group among those doing that work in Kenya; or Section 14(2)(b)(i) there were no persons of that group among those doing that work in Kenya; or Section 14(2)(b)(ii) the proportion of persons of that group among those doing that work in Kenya was small in comparison with the proportion of persons of that group among the population of Kenya. Section 14(3)(a) affording persons who...

Section 15. Establishment of the Commission Section 15(1) There is established a Commission to be known as the National Cohesion and Integration Commission. Section 15(2)(a) suing and being sued; Section 15(2)(b) purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 15(2)(c) borrowing or lending money; and Section 15(2)(d) doing or performing all other things or acts for the furtherance of the provisions of this Act which may lawfully be done or performed by a body corporate.

Section 16. Headquarters Section 16(1) The headquarters of the Commission shall be in Nairobi, but the Commission may establish branches at any place in Kenya. Section 16(2) Subject to the provisions of any other written law as to the meetings of the Commission, the Commission may hold its sittings at any place in Kenya.

Section 17. Membership of the Commission Section 17(1)(a) a chairperson nominated by the President and approved by the National Assembly in accordance with the First Schedule; and Section 17(1)(b) seven commissioners nominated by the President and approved by the National Assembly in accordance with the First Schedule. Section 17(2) The commissioners shall, at their first meeting, elect a vice-chairperson from amongst the commissioners appointed under subsection (1) (b). Section 17(3) The chairperson and vice-chairperson of the Commission shall not be of the same gender. Section 17(4) In appointing members to the Commission, the principles of gender equity, ethnic and regional representation shall apply. [Act No. 6 of 2019 , s. 2.]

Section 18. Qualification of Commissioner Section 18(1)(a) is a citizen of Kenya; Section 18(1)(b) has knowledge and at least ten years experience in the case of the chairperson, and at least two years experience in the case of a commissioner, in matters relating to race, ethnic and human relations, public affairs and human rights, peace and security; Section 18(1)(c) holds a degree from a university recognised in Kenya; and Section 18(1)(d) meets the requirements of Chapter Six of the Constitution. Section 18(2)(a) is a State Officer; Section 18(2)(b) is a member of the governing body of or is actively involved in the affairs of a political party; Section 18(2)(c) has promoted sectoral, ethnic, racial or religious animosity or openly advocated for partisan ethnic positions or interests; Section 18(2)(d) is an undischarged bankrupt; Section 18(2)(e) has served as a Member of the Commission; Section 18(2)(f) has been removed from office for contravening the provisions of the Constitution or any other law; or Section 18(2)(g) has not met his or her legal obligations relating to tax and other statutory obligations.

Section 19. Term of office Section The chairperson and members of the Commission shall be appointed for a single term of six years and are not eligible for re-appointment. [Act No. 6 of 2019 , s. 5.]

Section 20. Secretary to the Commission Section 20(1) There shall be a Secretary to the Commission who shall be appointed by the Commission upon such terms and conditions as the Commission may determine. Section 20(2)(a) be responsible for the administration and day-to-day management of the affairs of the Commission and of the control of the other staff of the Commission; and Section 20(2)(b) perform such other functions as may be assigned by the Commission.

Section 21. Oath of office Section The Chairperson, the commissioners and the Secretary shall each make and subscribe before the Chief Justice the oath or affirmation set out in the Second Schedule.

Section 22. Vacancy Section 22(1)(a) dies; Section 22(1)(b) resigns from office by writing under his hand addressed to the President; Section 22(1)(c) is removed from office in accordance with the provisions of section 23 ; Section 22(1)(d) is convicted of an offence and sentenced to imprisonment for a term of three months or more without the option of a fine; Section 22(1)(e) is unable to discharge the functions of his office by reason of physical or mental infirmity; Section 22(1)(f) is absent from three consecutive meetings of the Commission without good cause; or Section 22(1)(g) is declared bankrupt. Section 22(2) The President shall notify every vacancy in the Gazette within seven days of the occurrence of the vacancy.

Section 23. Removal from office Section 23(1)(a) for misbehaviour or misconduct; or Section 23(1)(b) if convicted of an offence involving moral turpitude, Section 23(2) A person who wishes to have a commissioner removed from office may apply for removal of the commissioner to the President through the Cabinet Secretary, and such application shall be copied to the Chairperson. Section 23(3) Where the subject of an application for removal from office under subsection (2) is the Chairperson, the application shall be made to the Cabinet Secretary and copied to the vice-chairperson. Section 23(4) The Cabinet Secretary shall, within seven days of receipt of an application under subsection (2), forward the application to the relevant Parliamentary Committee, and the Committee shall inquire into the matter and report on the facts to the President through the Cabinet Secretary, giving its recommendations as to whether or not the Chairperson or the commissioner ought to be removed from office, and the Cabinet Secretary shall communicate the recommendations of the Committee to the President. Section 23(5) Where the question of removing the Chairperson or a commissioner has been referred to th...

Section 24. Filling of vacancy Section 24(1) Where a vacancy occurs in the Commission as a result of death, disability, resignation or removal of a commissioner, the President shall appoint a replacement from among the short listed persons considered by the National Assembly in accordance with the First Schedule. Section 24(2) A person who is appointed in place of a commissioner whose office has become vacant under this section shall hold office for the remainder of the term of office of that commissioner.

Section 25. Objects and functions of the Commission Section 25(1) The object and purpose for which the Commission is established is to facilitate and promote equality of opportunity, good relations, harmony and peaceful co-existence between persons of the different ethnic and racial communities of Kenya, and to advise the Government on all aspects thereof. Section 25(2)(a) promote the elimination of all forms of discrimination on the basis of ethnicity or race; Section 25(2)(b) discourage persons, institutions, political parties and associations from advocating or promoting discrimination or discriminatory practices on the ground of ethnicity or race; Section 25(2)(c) promote tolerance, understanding and acceptance of diversity in all aspects of national life and encourage full participation by all ethnic communities in the social, economic, cultural and political life of other communities; Section 25(2)(d) plan, supervise, co-ordinate and promote educational and training programmes to create public awareness, support and advancement of peace and harmony among ethnic communities and racial groups; Section 25(2)(e) promote respect for religious, cultural, linguistic and other forms...

Section 26. Powers of the Commission Section 26(1) The Commission shall have all the powers necessary or expedient for the proper performance of its functions under this Act. Section 26(2)(a) shall not be subject to the direction or control of any other person or authority; Section 26(2)(b) shall publish the names of persons or institutions whose words or conduct may undermine or have undermined or contributed towards undermining good ethnic relations, or who are involved in ethnic discrimination or the propagation of ethnic hate; Section 26(2)(c) may enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purpose for which the Commission is established; Section 26(2)(d) control, supervise and administer the assets of the Commission in such manner and for such purposes as best promote the purpose for which the Commission is established; Section 26(2)(e) receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom; and Section 26(2)(f) open a banking account or banking accounts for the funds of the Commission.

Section 27. Power to summon witnesses Section The Commission shall have power to summon witnesses and to call for the production of books, plans and other documents and to examine witnesses and parties on oath.

Section 28. Summons for attendance of witnesses Section Summons for the attendance of witnesses or other persons or for the production of books, plans and other documents shall be in such form as may be specified by the Commission and shall be signed by the Secretary.

Section 29. Expenses of witnesses Section Every person summoned to attend and give evidence or produce books, plans or other documents at any sitting of the Commission shall be bound to obey the summons served upon him as if such summons were issued by the High Court, and shall be entitled to like expenses as a witness summoned to attend the High Court on a civil trial.

Section 30. Conduct of business of the Commission Section The conduct and regulation of the business and affairs of the Commission shall be as provided in the Third Schedule but subject thereto, the Commission shall regulate its own procedure.

Section 31. Delegation by the Commission Section The Commission may, by resolution either generally or in any particular case, delegate to any committee of the Commission or to any member, officer, employee or agent of the Commission, the exercise of any of the powers or the performance of any of the functions or duties of the Commission under this Act.

Section 32. Remuneration of commissioners Section The Cabinet Secretary shall, in consultation with the National Treasury, determine the remuneration and allowances of the members of the Commission.

Section 33. Staff of the Commission Section 33(1) The Commission may appoint such officers or staff as are necessary for the proper discharge of the functions of the Commission under this Act, upon such terms and conditions of service as the Commission may determine. Section 33(2) The principles of ethnic and gender balance shall guide all staff appointments. Section 33(3) The Government may, upon request by the Commission, second to the Commission such number of public officers as may be necessary for the purposes of the Commission. Section 33(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 34. The seal of the Commission Section 34(1) The common seal of the Commission shall be kept in such custody as the Commission may direct and shall not be used except on the order of the Commission. Section 34(2) The common seal of the Commission when affixed to a document and duly authenticated shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorization of the Commission under this section shall be presumed to have been duly given.

Section 35. 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 for executing the functions, powers or duties of the Commission, render the member, officer, employee or agent personally liable to any action, claim or demand whatsoever.

Section 36. Liability of the Commission for damages Section The provisions of section 35 shall not relieve the Commission of the liability to pay compensation for damage to any person for any personal or proprietary interest sustained by the person as a result of the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works.

Section 17A. Powers of the chairperson Section 17A(1)(a) preside over the meetings of the Commission; and Section 17A(1)(b) be the spokesperson of the Commission. Section 17A(2) If the office of the chairperson becomes vacant or if the chairperson is unable to exercise the powers or perform the functions of his or her office owing to absence, illness or any other cause, the vice-chairperson shall exercise those powers or perform those functions until a substantive chairperson is appointed. [Act No. 6 of 2019 , s. 3.]

Section 37. Funds of the Commission Section monies appropriated by Parliament for the purposes of the Commission;

Section 38. Annual estimates Section 38(1) At least three months 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 38(2)(a) the payment of the salaries, allowances and other charges in respect of the staff of the Commission; Section 38(2)(b) the payment of pensions, gratuities and other charges and in respect of benefits which are payable out of the funds of the Commission; Section 38(2)(c) the maintenance of the buildings and grounds of the Commission; Section 38(2)(d) the funding of training, research and development activities of the Commission; Section 38(2)(e) the proper maintenance, repair and replacement of any installation and of the equipment and other movable property of the Commission; Section 38(2)(f) the creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations or equipment and in respect of such other matters as the Commission may think fit. Section 38(3) The annual estimates shall be approved by the Commission before the commencement of the financial year to which...

Section 39. Accounts and audit Section 39(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 39(2) The Cabinet Secretary for the time being responsible for finance may prescribe the form of any book required to be kept under subsection (1) and unless a form has been prescribed, a form suitable for the purpose shall be used. Section 39(3)(a) a statement of the income and expenditure of the Commission during that financial year; and Section 39(3)(b) a statement of the assets and liabilities of the Commission on the last day of that financial year. Section 39(4) The accounts of the Commission shall be audited and reported upon by the Auditor-General in accordance with the provisions of the Public Audit Act (Cap. 412B).

Section 40. Investment of funds Section 40(1) The Commission may invest any of its funds in securities in which for the time being trustees may by law invest trust funds or in any other securities which the National Treasury may, from time to time, approve. Section 40(2) The Commission may place on deposit with such bank or banks or financial institutions as it may determine, any moneys not immediately required for the purposes of the Commission.

Section 41. Annual reports Section 41(1) The Commission shall cause an annual report to be prepared for each financial year. Section 41(2) The Commission shall submit the annual report to the Cabinet Secretary within three months after the end of the year to which it relates. Section 41(3)(a) the financial statements of the Commission; Section 41(3)(b) a description of the activities of the Commission; Section 41(3)(c) such other statistical information as the Commission considers appropriate relating to complaints to the Commission, investigations by the Commission and reports by the Commission on the results of investigations; Section 41(3)(d) any other information relating to its functions that the Commission considers necessary. Section 41(4) The Cabinet Secretary shall, within thirty days after receiving the annual report, transmit it to the National Assembly. Section 41(5) The Commission shall cause the annual report to be published in the Gazette and in such other manner as the Commission may determine.

Section 42. Special reports Section The Commission may, at any time, submit a special report to the National Assembly through the Cabinet Secretary with respect to any aspect of the functions of the Commission which the Commission considers should, in the national interest, be brought to the attention of the National Assembly because it affects a wide cross section of the populace and there could be disastrous consequences if a report thereon is not brought to the attention of the National Assembly.

Section 62. Offence of ethnic or racial contempt Section 62(1) Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both. Section 62(2) A newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.

Section 63. Offences Section has made a complaint against any person;

Section 64. Offences by body of persons Section where the body of persons is a body corporate, every director and officer of that body corporate shall also be deemed to be guilty of that offence; and

Section 65. Contravention of Act not to create civil or criminal liability Section A contravention of this Act does not create any civil or criminal liability except to the extent expressly provided by this Act.

Section 66. Secrecy of certain information Section 66(1) No person shall, either directly or indirectly, make a record of, disclose or communicate to any person any information to which this section applies unless it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act or any other law. Section 66(2)(a) a member of the Commission; Section 66(2)(b) the Secretary; Section 66(2)(c) a member of staff of the Commission; and Section 66(2)(d) any other person acting under the authority of the Commission. Section 66(3)(a) in the course of performing functions or duties or exercising powers under this Act; or Section 66(3)(b) as a result of another person performing functions or duties or exercising powers under this Act. Section 66(4) A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine of one hundred thousand shillings or to imprisonment for a term of six months or to both.

Section 67. Effect of vacancy or defect in appointment Section An act or decision by the Commission is not invalid only because of a vacancy in its membership, or a defect or irregularity in the appointment of any member.

Section 68. Protection of persons giving evidence and information Section a complaint has been lodged; or