Prevention of Torture Act

Section 1. Short title. Section This Act may be cited as the Prevention of Torture Act.

Section 2. Interpretation. Section In this Act, unless the context otherwise requires— "Board" means the Board of Trustees appointed under section 30 of the Victim Protection Act (Cap. 79A); "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to justice; "Commission" means the Kenya National Commission on Human Rights established under section 3 of the Kenya National Commission on Human Rights Act (Cap. 7I); "cruel, inhuman and degrading treatment or punishment" includes a deliberate and aggravated treatment or punishment not amounting to torture, inflicted by a public officer or a person acting on behalf of a public officer against a person under their custody, causing suffering, gross humiliation or degradation to the person; "intermediary" means a person authorized by a court, on account of their expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counsellor, guardian, children's officer or social worker; "public officer" means a public officer as defined under Article 260 of the Constitution; "torture" has the meaning assigned to it in section 4 ; "victim" m...

Section 3. Application of the Act. Section the alleged offender is a citizen of Kenya;

Section 4. Torture. Section obtaining information or a confession from him or her or any other person;

Section 5. Offence of torture. Section 5(1) Any person who tortures another person commits an offence and shall be liable, on conviction, to imprisonment for a term not exceeding twenty-five years. Section 5(2) If as a result of torture referred to under subsection (1) the victim dies, the person is liable, on conviction, to imprisonment for life.

Section 6. No justification for torture. Section 6(1)(a) a state of war or a threat of war; Section 6(1)(b) internal political instability; or Section 6(1)(c) a public emergency, Section 6(2) An order from a superior officer or a public authority may not be invoked as justification for torture or cruel, inhuman or degrading treatment or punishment. Section 6(3) A person shall not be held liable to disciplinary action or criminal prosecution only on account of refusing to obey an order from a superior officer or public authority to commit, aid or abet in the torture or cruel, inhuman or degrading treatment or punishment or an offence under this Act.

Section 7. Offence of cruel, inhuman or degrading treatment or punishment. Section commits or induces another person to commit cruel, inhuman or degrading treatment or punishment; or

Section 8. Aiding and Abetting. Section A person who attempts, aids, abets, counsels, procures or conspires with another person to commit an offence under this Act 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 fifteen years or both.

Section 9. Offence of using information obtained through torture. Section 9(1) Any information, confession or admission obtained from a person by means of torture or cruel, inhuman or degrading treatment or punishment is inadmissible evidence in any proceedings. Section 9(2) A person who knowingly uses information which is obtained through torture or cruel, inhuman or degrading treatment or punishment commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years or to both. Section 9(3) Despite subsections (1) and (2), any information, confession or admission obtained by means of torture or cruel, inhuman or degrading treatment may be admitted against a person accused of torture or cruel, inhuman or degrading treatment as evidence that the information, confession or admission was obtained by torture or cruel, inhuman or degrading treatment.

Section 10. No immunity or amnesty. Section There shall be no immunity or amnesty granted to a person accused of the offence of torture or cruel, inhuman or degrading treatment or punishment.

Section 11. Sentencing. Section 11(1) In sentencing a person convicted for an offence under this Act, the court shall take into consideration the severity of the act of torture or cruel, inhuman or degrading treatment or punishment. Section 11(2)(a) the duration of the treatment or punishment; Section 11(2)(b) the duration of the physical and mental effects of the treatment or punishment; and Section 11(2)(c) the victim's sex, religion, age and state of health.

Section 12. Powers and functions of the Commission. Section 12(1)(a) investigate alleged violations of the provisions of this Act upon receipt of a complaint or on its own initiative; Section 12(1)(b) promote the right to freedom from torture and cruel, inhuman and degrading treatment and punishment pursuant to the provisions of the Constitution and this Act; Section 12(1)(c) call for information from a public entity or private body to facilitate monitoring of compliance with the provisions of this Act; Section 12(1)(d) monitor the compliance by the State with international treaty obligations relating to torture and cruel, inhuman and degrading treatment and punishment. Section 12(1)(e) issue summons or other orders requiring the attendance of any person before the Commission or the production of any document or record required by the Commission; Section 12(1)(f) recommend effective measures for prevention of torture and cruel, inhuman and degrading treatment and punishment; Section 12(1)(g) create awareness among the public on their right to freedom from torture and cruel, inhuman and degrading treatment or punishment, by means of continuing civic awareness programs, symposia, pub...

Section 13. Procedure for reporting and registration of offences under this Act. Section 13(1)(a) the National Police Service; Section 13(1)(b) the Commission; or Section 13(1)(c) any other relevant institution. Section 13(2)(a) reduce the complaint into writing; and Section 13(2)(b) forward the matter to the police or other investigating authorities for investigation. Section 13(3) A police officer shall receive a complaint of an offence under this Act and forward it, without delay, to the Officer-in-charge of the police station in whose jurisdiction the offence has taken place for initiating investigations. Section 13(4) Upon receipt of the complaint referred to in subsection (3), the Officer-in-charge of the police station shall immediately forward the complaint to the Directorate of Criminal Investigation which shall investigate the offence without delay. Section 13(5) Despite anything in the Criminal Procedure Code (Cap. 75) as to reporting and investigation of crimes, whenever a complaint of torture or other cruel, inhuman or degrading treatment or punishment is received, the person receiving the complaint shall register it in writing. Section 13(6) Where an allegation of tor...

Section 14. Procedure of investigation. Section Subject to section 13 (5), an offence under this Act shall be investigated in accordance with the provisions of the Criminal Procedure Code (Cap. 75).

Section 15. Victim impact statement. Section in order to prove that an offence was committed; and

Section 16. Vulnerable witness. Section 16(1)(a) the alleged victim in the proceedings pending before the court; Section 16(1)(b) a child; or Section 16(1)(c) a person with a mental disability; Section 16(1)(d) a person who is under protection by the Witness Protection Agency established by section 3A of the Witness Protection Act (Cap. 79). Section 16(2)(a) age; Section 16(2)(b) intellectual, psychological or physical impairment; Section 16(2)(c) trauma; Section 16(2)(d) cultural differences; Section 16(2)(e) the possibility of intimidation; Section 16(2)(f) race; Section 16(2)(g) religion; Section 16(2)(h) language; Section 16(2)(i) the relationship of the witness to any party to the proceedings; Section 16(2)(j) the nature of the subject matter of the evidence; or Section 16(2)(k) any other factor the court considers relevant. Section 16(3) The court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of the witness. Section 16(4)(a) allowing the witness to give evidence under the protective cover of a witness protection box;...

Section 17. Remedies. Section 17(1)(a) adequate reparation, including restitution; Section 17(1)(b) adequate compensation; and Section 17(1)(c) rehabilitation. Section 17(2) In the event of the death of the victim as a result of an act of torture or other cruel, inhuman or degrading treatment or punishment, the victim's dependants shall be entitled to reparation. Section 17(3)(a) the costs of medical and psychological treatment; and Section 17(3)(b) any other relief that the court may consider just.

Section 18. Civil action. Section Despite any criminal proceedings instituted under this Act or any order made under section 17 as to restitution or compensation, a person may institute civil proceedings for compensation.

Section 19. Medical treatment and counselling of victim. Section 19(1) A court may at anytime, at the request of a victim of torture or cruel, inhuman or degrading treatment or an intermediary, grant an order for the treatment or counselling of a victim of torture or cruel, inhuman or degrading treatment or punishment. Section 19(2) The expenses incurred for the treatment or professional counselling of a victim granted under this section shall be charged on the Victim Protection Trust Fund established under section 27 of the Victim Protection Act (Cap. 79A). Section 19(3) All medical records relating to treatment pursuant to subsection (1) are the property of the victim and shall only be used as evidence before any court with regard to any offence under this Act pursuant to the prior and informed consent of the victim.

Section 20. Transfer of detainees. Section 20(1) A person having lawful custody of a prisoner or detainee shall not transfer or release the prisoner or detainee, to any place if there are reasonable grounds to believe that the prisoner or detainee is likely to be subjected to torture or cruel, inhuman or degrading treatment or punishment. Section 20(2)(a) citizenship of the prisoner or detainee; Section 20(2)(b) location in which the prisoner or detainee is being held in custody or control; or Section 20(2)(c) location in which or to which the transfer or release is to take place or has taken place.

Section 21. Restriction on extradition or deportation. Section 21(1) Torture is an extraditable offence. Section 21(2) A person shall not be expelled, returned or extradited to another country where there is reason to believe that the person is in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment. Section 21(3) When determining whether there is reason to believe that a person has been tortured or is in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment under subsection (2), the court shall take into account all factors including the existence of a consistent pattern of gross, flagrant or mass violations of human rights in the state seeking extradition of the person. Section 21(4) Where a person is not extradited as a consequence of the provisions of this section, the person shall be prosecuted in Kenya.

Section 22. Assistance to communicate with representative. Section 22(1)(a) a family member; Section 22(1)(b) the nearest representative of the person; or Section 22(1)(c) the State of which the person is a national. Section 22(2) If the person in custody is stateless, the person shall be assisted by the detaining authority to communicate with the representative of the State where the person usually resides.

Section 23. Regulations. Section The Cabinet Secretary may, in consultation with the Board, make regulations for the administration of the Victim Protection Trust Fund in relation to the implementation of this Act.

Section 24. General penalty. Section A person who commits an offence under this Act for which a penalty is not prescribed, shall be liable, on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years or to both.

Section 25. Commission to submit annual report to National Assembly. Section 25(1) The Commission shall submit an annual report to the National Assembly and may, at any time submit special reports to the Cabinet Secretary on any matter relating to its functions. Section 25(2) The annual report submitted by the Commission under sub-section (1) shall include an overall assessment of Government's performance with regard to prevention of torture and cruel, inhumane and degrading treatment during the period under review by the Commission. Section 25(3) The Cabinet Secretary shall every year be required to report to the National Assembly, steps which the government has taken in implementing the recommendations made by the Commission.

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Section 30. Limitation of actions. Section 30(1) Despite the provisions of the Limitation of Actions Act (Cap. 22), an action for reparation under this Act in respect of an act of torture or cruel, inhuman or degrading treatment or punishment or death caused by an act of torture or cruel, inhuman or degrading treatment or punishment may be brought at any time within the period of six years beginning with the date when it first became reasonably practicable for the person concerned to bring an action. Section 30(2) Despite the limitation of proceedings against the Government as provided in the Government Proceedings Act ( Cap. 40 ) and the Public Authorities Limitation Act (Cap. 39), an action for damages or claim against the government or any public body in respect of an act of torture or cruel, inhuman or degrading treatment or punishment or death caused by an act of torture or cruel, inhuman or degrading treatment or punishment may be brought at any time within the period of six years beginning with the date when it first became reasonably practicable for the person concerned to bring an action.

Section 31. Conflict of laws. Section Where there is a conflict between the provisions of this Act and the provisions of any other law in regard to the crimes of torture or cruel, inhuman or degrading treatment or punishment, the provisions of this Act shall prevail.