Persons Deprived of Liberty Act

Section 1. Short title Section This Act may be cited as the Persons Deprived of Liberty Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "advocate" has the meaning assigned to it under section 2 of the Advocates Act (Cap. 16); "Cabinet Secretary" means the Cabinet Secretary responsible for matters relating to the administration of justice; "child" has the meaning assigned to it under Article 260 of the Constitution. "competent authority" means any person, officer or body responsible for or dealing with matters relating to persons deprived of liberty; "Consultative committee" means the committee established under section 29; "detained person" means a person deprived of liberty under authority of the law either by a law enforcement official for the purpose of investigation of a crime or so as to be charged with an offence or by a private person where there is reasonable suspicion that a crime has been committed; or a person deprived of liberty by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship or for protection; "disability" has the meaning assigned to it under Article 260 of the Constitution; "family member" in relation to a pers...

Section 3. Rights of persons deprived of liberty Section 3(1) Every person deprived of liberty is entitled to the protection of all fundamental rights and freedoms subject to such limitations as may be permitted under the Constitution. Section 3(2) Nothing in this Act may be construed as limiting the rights and freedoms of persons deprived of liberty otherwise than in accordance with Articles 29(f) and 51 of the Constitution. Section 3(3)(a) personal details of the person detained, including name, age and address; Section 3(3)(b) physical condition of the person detained, held in custody or imprisoned; Section 3(3)(c) reason for the detention, custody or imprisonment; Section 3(3)(d) steps taken to ensure that the person arrested or detained is subjected to due process of the law; and Section 3(3)(e) the medical history of the person detained, held in custody or imprisoned.

Section 4. Limitation of right to privacy Section if the limitation is for the purposes of maintenance and preservation of national security to the extent provided for in the Constitution;

Section 5. Right to humane treatment and human dignity of persons deprived of liberty Section 5(1) A person deprived of liberty shall at all times be treated in a humane manner and with respect for their inherent human dignity. Section 5(2) Any person who subjects a person deprived of liberty to cruel, inhuman or degrading treatment commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding two years, or to both.

Section 6. Additional rights upon arrest Section a reasonable opportunity to secure any personal property within their possession that is not subject to exhibition as evidence in relation to any charge; and

Section 7. Due process of the law Section the right to be promptly informed in a language the person understands of the reasons for their deprivation of liberty and of the charges, if any, preferred against them;

Section 8. Right to communicate Section 8(1)(a) upon the first instance of detention, being held in custody or imprisonment; and Section 8(1)(b) upon transfer or movement from one institution to another. Section 8(2) The person in charge of a facility at which the person deprived of liberty is held shall facilitate the communication specified in subsection (1) without charge. Section 8(3) Nothing in this section shall limit the right of any person deprived of any liberty to communicate with any other person except in such circumstances as may be specified in Regulations.

Section 9. Right to inspect receipt book, personal property etc Section 9(1) An institution holding arrested persons shall maintain a receipt book which shall be used by the law enforcement official to list the property in the possession of the person upon arrest. Section 9(2) The person arrested or held in detention shall have the right to inspect the receipt book and verify the accuracy of the record specified in subsection (1). Section 9(3) Upon release, the person arrested or detained, shall have the right to restoration of all his or her property. Section 9(4) If any of the personal property to which this section relates is not restored to the person deprived of liberty on his or her release, a record of the reason for its retention shall be entered in the receipt book. Section 9(5) Nothing in this section limits the right of any person deprived of liberty to authorize the release of their property to which this section relates to a person of their choice and a record of that authority or direction shall be recorded in the receipt book.

Section 10. Restriction on searches Section 10(1) A person deprived of liberty shall not be subjected to an unreasonable body search. Section 10(2) A body search of any person shall be carried out only by a person of the same sex. Section 10(3) Despite subsection (2), an intersex person has the right to decide the sex of the person by whom they should be searched. Section 10(4) An intrusive search or search in or around a concealed body cavity shall only be undertaken in privacy and by a person of the same sex with due regard to personal safety and health. Section 10(5) A person who carries out the search shall conduct it with decency and in a manner that affords the person being searched the privacy and dignity consistent with the purpose of the search.

Section 11. Aliens deprived of liberty Section 11(1) Aliens deprived of liberty, shall be informed, without delay and in any case before they make any statement to the competent authorities, of their right to consular or diplomatic assistance, and to request that consular or diplomatic authorities be notified of their deprivation of liberty forthwith. Section 11(2) Where consular assistance is not available, the alien will be entitled to legal aid and assistance in accordance with any written law.

Section 12. Right to reasonable accommodation Section 12(1) A person deprived of liberty shall not be confined in crowded conditions. Section 12(2) The Cabinet Secretary shall by Regulations determine the maximum number of persons deprived of liberty that may be accommodated in any given facility or prison and the minimum space or area of such accommodation. Section 12(3)(a) men and women who are deprived of liberty, detained, held in custody or imprisoned are accommodated in separate detention facilities; Section 12(3)(b) children deprived of liberty, detained, held in custody or imprisoned are held separate from adults in facilities conducive to their special needs and age; Section 12(3)(c) male and female children are accommodated in separate facilities; Section 12(3)(d) mothers with infant children are accommodated in facilities separate from those in which other persons deprived of liberty are held; Section 12(3)(e) intersex persons deprived of liberty are held separate from other persons; Section 12(3)(f) older members of society deprived of liberty are held in accommodation appropriate to their special needs and age; Section 12(3)(g) refugees, asylum seekers or refugee statu...

Section 13. Right to nutritious diet Section 13(1) A person deprived of liberty shall be entitled to a nutritious diet approved by competent authorities. Section 13(2) A diet under subsection (1) shall take into account the nutritional requirements of children, pregnant women, lactating mothers and any other category of persons whose physical conditions require a prescribed diet. Section 13(3) For the purposes of this subsection (1), "competent authority" means a qualified medical practitioner or qualified nutritionist. Section 13(4) A medical officer of health may prescribe a particular diet for a particular person deprived of liberty, depending on the medical condition of the patient. Section 13(5) As far as possible in the circumstances of any case, in providing food and water to persons deprived of liberty, consideration shall be made for their various religious needs. Section 13(6) Subject to any limitations prescribed in Regulations, persons deprived of liberty may be entitled to receive food and non-alcoholic beverages from any person.

Section 14. Decent beddings and clothing Section 14(1) A person deprived of liberty shall be provided with beddings sufficient to meet the requirements of hygiene and climatic conditions. Section 14(2) A person deprived of liberty shall be provided with clothing sufficient to meet requirements of hygiene, climatic conditions and special needs on account of gender and religion. Section 14(3) The Competent Authority shall ensure that beddings and clothing referred to in subsections (1) and (2) are maintained in good repair and hygienic conditions. Section 14(4) In addition to appropriate beddings and clothing, women who are deprived of liberty shall be provided with adequate sanitary materials.

Section 15. Right to healthcare Section A person detained, held in custody or imprisoned is, on the recommendation of a medical officer of health, entitled to medical examination, treatment and healthcare, including preventive healthcare.

Section 16. Confidentiality to health information Section 16(1) A person deprived of liberty has a right to confidentiality regarding his or her health status. Section 16(2)(a) facilitate effective health care for the person deprived liberty ; and Section 16(2)(b) facilitate the protection of other persons deprived of liberty and the officers under whose charge such persons are accommodated.

Section 17. Right to freedom of conscience, religion, belief and opinion Section 17(1) Nothing in this Act may be construed as limiting the right to freedom of conscience, religion, belief and opinion of any person deprived of liberty, except to the extent that the right or freedom is incompatible with the fact that the person is deprived of liberty. Section 17(2) Subject to subsection (1), every competent authority under whose charge a person deprived of liberty is placed shall take all practical and reasonable measures to ensure the enjoyment of the rights and freedoms protected under Article 32 of the Constitution. Section 17(3) A person deprived of liberty shall not be subjected to treatment that unreasonably violates their religious practices and convictions.

Section 18. Right to education and access to information Section 18(1)(a) to access educational opportunities and reading material that is beneficial to their rehabilitation and personal development; and Section 18(1)(b) to reasonable access to news media. Section 18(2) Subject to subsection (1), every Competent Authority under whose charge a person deprived of liberty is placed shall take all practical and reasonable measures possible to facilitate enjoyment of the right to education and access to information. Section 18(3) So far as is practically reasonable, the education of children detained in prison shall be integrated with the current system of education.

Section 19. Freedom from forced labour Section 19(1) Except in the execution of a lawful sentence, a person deprived of liberty shall not be subjected to forced labour. Section 19(2)(a) to ensure cleanliness of the premises at which they are accommodated; or Section 19(2)(b) to facilitate their rehabilitation and personal development, by among other things, being engaged in such day to day activities as the Cabinet Secretary may prescribe.

Section 20. Recreational and cultural activities for persons deprived of liberty Section The Cabinet Secretary shall take such reasonable and practical measures to ensure the establishment of recreational and cultural facilities in all institutions in which persons deprived of liberty are held for the benefit of their mental and physical health.

Section 21. Right of children detained or held in prison Section 21(1) Where a child is detained or deprived of liberty in execution of a lawful sentence, the competent authority shall within forty eight hours notify a parent or guardian of the child of such detention or deprivation of liberty. Section 21(2) Where a child arrested or detained in prison is transferred from one institution to another, the Competent Authority effecting the transfer shall within seven days notify a parent or guardian of the child of such transfer. Section 21(3) Where no parent or guardian is traceable the Competent Authority shall notify an administrative officer in the area where the child's home is located. Section 21(4) Where a child is born of a person deprived of liberty, the fact of the birth in a detention facility or prison shall not be entered in the certificate of birth.

Section 22. Care of infants by mothers Section 22(1) A mother deprived of liberty is entitled to take personal care of the child until such child attains the age of four years. Section 22(2) A mother and child held in detention are entitled to diet, clothing, healthcare and facilities necessary for the developmental needs of the child.

Section 23. Rights of persons with disabilities Section 23(1) Where persons with disabilities are deprived of liberty under any legal process, they shall be treated on an equal basis with others and shall be entitled to such guarantees as are in accordance with the Constitution and the law relating to the protection of the rights of persons with disabilities. Section 23(2) Persons with disabilities deprived of liberty shall be accommodated in facilities that adequately meet their personal needs, taking into account the condition and nature of their disability. Section 23(3) The Competent Authorities shall take appropriate measures to facilitate humane treatment and respect for the privacy, legal capacity and inherent human dignity of persons with disabilities deprived of liberty.

Section 24. Right to visits Section 24(1) A person held in lawful custody or detained in prison shall be entitled to receive at least one visitor once every seven days. Section 24(2) Any person detained in prison in execution of a lawful sentence is entitled to be visited at least once every fourteen days. Section 24(3) Nothing in this section limits the number of days on which a person deprived of liberty may be visited by his or her legal counsel or other representative in exercise of his or her right of access to justice. Section 24(4) Any discussion between a legal counsel and the person deprived of liberty pursuant to subsection (3), shall be held in privacy. Section 24(5) Subject to Regulations, the right to visits under this section includes the right of persons deprived of liberty to be visited by human rights officers of duly recognized institutions for the purposes of inspecting and assessing the conditions under which such persons are held.

Section 25. Family days Section The Competent Authorities in charge of the premises in which persons deprived of liberty are accommodated shall designate certain days as family days during which persons deprived of liberty may be visited by and interact with their family members at least once every three months.

Section 26. Rehabilitation based programmes Section persons imprisoned or detained under the Community Service Orders Act (Cap. 93); and

Section 27. Complaints by persons deprived of liberty Section 27(1) Any person deprived of liberty who considers that his or her right under this Act has been denied or violated may lodge a complaint either orally or in writing to the administrative officer in charge of the facility in which the person is detained. Section 27(2) In addition to the provisions of subsection (1), complaints may be instituted by a person acting on behalf of a person deprived of liberty who cannot act in their own name. Section 27(3) Where the complaint is made orally, the officer in charge shall cause it to be recorded in writing. Section 27(4)(a) a written statement of the measures taken to address the complaint; Section 27(4)(b) the recommendations made in settlement of the complaint. Section 27(5)(a) name of the complainant; Section 27(5)(b) nature of the complaint; Section 27(5)(c) time and date the complaint was lodged; Section 27(5)(d) the measures taken to address the complaint; and Section 27(5)(e) the findings and recommendations made in settlement of the complaint. Section 27(6) Where a complaint is made against the officer in charge of the facility, the same may be lodged with the Cabinet Se...

Section 28. Prison discipline Section 28(1) A person deprived of liberty and who is charged with a prison offence shall be informed in writing of the nature and particulars of the offence. Section 28(2) Prison discipline of the offending person deprived of liberty shall be administered in accordance with the Prisons Act (Cap. 90). Section 28(3) All disciplinary proceedings referred to in subsection (1) shall be conducted in accordance with the principles of fair administrative action prescribed under Article 47 of the Constitution.

Section 29. Establishment, functions and composition of Consultative Committee Section 29(1) There is established a committee to be known as the Consultative Committee on Persons Deprived of Liberty. Section 29(2) The Consultative Committee shall deliberate on and resolve matters relating to persons deprived of liberty. Section 29(3)(a) the Cabinet Secretary responsible for matters relating to persons deprived of liberty or his or her representative appointed in writing, who shall be the chairperson; Section 29(3)(b) the Attorney-General or his or her representative; Section 29(3)(c) the Commissioner of Prisons or his or her representative who shall be the secretary; Section 29(3)(d) the Director of Medical Services or his or her representative; Section 29(3)(e) the Inspector-General of Police or his or her representative; Section 29(3)(f) the Director of Probation Services or his or her representative; Section 29(3)(g) a representative of the Kenya National Commission on Human Rights; Section 29(3)(h) a representative of the National Gender and Equality Commission; Section 29(3)(i) a representative from the Council of the Law Society of Kenya; Section 29(3)(j) one person nominated...

Section 30. Regulations Section 30(1) The Cabinet Secretary may make Regulations generally to give effect to the provisions of this Act. Section 30(2)(a) the restriction on the supply of food and drink from outside the institution in which the person deprived of liberty is held; Section 30(2)(b) the form and manner of communication for persons deprived of liberty; Section 30(2)(c) the maximum number of persons deprived of liberty that may be held in a facility; Section 30(2)(d) the form and manner of visits to persons deprived of liberty; Section 30(2)(e) the form and manner of accommodation with respect to the separate categories of persons deprived of liberty; Section 30(2)(f) the form and manner of family days held in institutions holding persons deprived of liberty; Section 30(2)(g) individuals or groups that may visit persons deprived of liberty during family days; Section 30(2)(h) instances when a person deprived of liberty may be allowed to leave the institution in which the person is held; Section 30(2)(i) practical and reasonable measures for the enjoyment of the rights to freedom of conscience, religion, belief and opinion by persons deprived of liberty; Section 30(2)(j)...

Section 31. General penalty Section 31(1) Any person who wilfully and without lawful justification denies or deprives a person deprived of liberty any of the rights protected under this Act, commits an offence, and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment. Section 31(2) A person is not guilty of an offence under this Act if it is shown to the satisfaction of the court that the denial or deprivation of rights mentioned in subsection (1) is justified on the grounds of limitation of such rights under this Act or any other written law.

Section 32. Non-derogation from other laws relating to rights of persons deprived of liberty Section 32(1) The provisions of this Act shall be in addition to and not in derogation from any other law relating to the rights of persons deprived of liberty. Section 32(2) Notwithstanding subsection (1) this Act does not apply to persons deprived of liberty in consequence of disciplinary action under any law relating to persons serving in the Kenya Defence Forces.