Privileges and Immunities Act

Section 1. Short title. Section This Act may be cited as the Privileges and Immunities Act.

Section 2. Interpretation. Section 2(1) In this Act, unless the context otherwise requires— "Commonwealth country" means any country to which, for the time being, section 95 of the Constitution applies; "consular officer" means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions and any person in the service of the Government of a Commonwealth country performing any such functions; "consular post" means any consulate-general, consulate, vice-consulate or consular agency; "diplomatic agent" has the meaning assigned to it in Article 1 in the First Schedule to this Act; "the Cabinet Secretary" means the Cabinet Secretary for the time being responsible for foreign affairs. Section 2(2) In the Articles set out in the First and Second Schedules to this Act— "agent of the receiving State" or "authorities of the receiving State" shall be construed as including a police officer and any person exercising a power of entry to any premises under any written law; "grave crime" shall be construed as meaning any offence punishable (on a first conviction) with imprisonment for a term that may extend to five years or with a more sever...

Section 3. Replacement of existing law Section The following provisions of this Part shall, with respect to the matters dealt with therein, have effect in substitution for any previous written law or rule of law.

Section 4. Application of Convention Section 4(1) Subject to section 15 of this Act, the Articles set out in the First Schedule to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in Kenya and shall for that purpose be construed in accordance with the following provisions of this section. Section 4(2) For the purposes of Article 32 a waiver by the head of the mission of any State or any person for the time being performing his functions shall be deemed to be a waiver by that State. Section 4(3) Articles 35, 36 and 40 shall be construed as granting any immunity or privilege which they require to be granted. Section 4(4) The references in Articles 37 and 38 to the extent to which any immunities and privileges are admitted by the receiving State and to additional immunities and privileges that may be granted by the receiving State shall be construed as referring respectively to the extent to which any immunities or privileges are specified by the Cabinet Secretary by order and to any additional immunities and privileges that may be so specified. Section 4(5) In its application to the immunity granted by paragraphs (2...

Section 5. Application of Convention Section 5(1) Subject to sections 6 (2) and 15 of this Act, the Articles set out in the Second Schedule to this Act (being Articles or parts of Articles of the Vienna Convention on Consular Relations signed in 1963) shall have the force of law in Kenya and shall for that purpose be construed in accordance with the following provisions of this section. Section 5(2) The reference in paragraph 2 of Article 17 to any immunities and privileges accorded by customary international law or by international agreements shall be construed as a reference to any immunities and privileges conferred under Part IV of this Act. Section 5(3) The references in Article 44 to matters connected with the exercise of the functions of members of a consular post shall be construed as matters connected with the exercise of consular functions by consular officers or consular employees. Section 5(4) For the purposes of Article 45 and that Article as applied by Article 58, a waiver shall be deemed to have been expressed by a State if it has been expressed by the head, or any person for the time being performing the functions of head, of the diplomatic mission of that State or,...

Section 6. Agreements Section 6(1) Where any agreement made, whether before or after the commencement of this Act, between Kenya and any other State provides for according to consular posts and persons connected with them immunities and privileges not accorded to them by the other provisions of this Act, the Cabinet Secretary may, by order, exercise, with respect to the consular posts of that State and persons connected with them, the powers specified in the Third Schedule to this Act so far as may be necessary to give effect to that agreement. Section 6(2) Where any agreement made, whether before or after the commencement of this Act, between Kenya and any other State provides for according to consular posts and persons connected with them some but not all of the immunities and privileges accorded to them by the other provisions of this Act, the Cabinet Secretary may, by order, provide for excluding, with respect to consular posts of that State and persons connected with them, any of the immunities and privileges which are not provided for by that agreement.

Section 7. Commonwealth representatives Section 7(1)(a) on persons in the service of the Government of a Commonwealth country holding such offices or class of offices as may be specified in the order, being offices or classes of offices which appear to the Cabinet Secretary to involve the performance of duties substantially corresponding to those which, in the case of a foreign sovereign power, would be performed by a consular officer; Section 7(1)(b) on a person for the time being recognized by the Government of Kenya as the chief representative of any state or province of a Commonwealth country (in this section referred to as a state representative); Section 7(1)(c) on members of the staff of any such person as is mentioned in paragraph (a) or paragraph (b) of this subsection, any immunities or privileges which are conferred by or may be conferred under this Part, and any such order may provide for extending, in relation to premises, official archives, communications, documents and personal property of persons on whom any immunities and privileges are or may be conferred under this section, and in relation to any fees and charges levied by them, the provisions of Articles 31, 32,...

Section 8. Power of consular officer in relation to property of deceased persons Section 8(1) Where any person who is a national of a foreign State is named as executor in the will of a deceased person disposing of property in Kenya, or is otherwise a person to whom a grant of representation to the estate in Kenya of a deceased person may be made, then if the court is satisfied, on the application of a consular officer of the said State, that the said national is not resident in Kenya, and if no application for a grant of such representation is made by a person duly authorized by power of attorney to act for such national in that behalf, the court shall make to that officer any such grant of representation to the estate of the deceased as would be made to him if he were so authorized as aforesaid: Provided that the court may, if it thinks fit, postpone the making of such grant during such period as the court considers appropriate having regard to all the circumstances of the case. Section 8(2)(a) is entitled to payment or delivery of any money or property in respect of any interest in the estate of a deceased person, or vesting in possession on the death of any person, or is entitl...

Section 9. Privileges,etc., of certain international organizations and persons connected therewith Section 9(1) This section shall apply to any organization which the Cabinet Secretary may, by order, declare to be an organization of which Kenya, or the Government, and one or more foreign sovereign powers, or the government or governments thereof, are members. Section 9(2)(a) provide that any organization to which this section applies (hereinafter referred to as the organization) shall, to such extent as may be specified in the order, have the immunities and privileges set out in Part I of the Fourth Schedule to this Act, and shall also have the legal capacities of a body corporate; Section 9(2)(b) any persons who are representatives (whether of governments or not) on any organ of the organization or are members of any committee of the organization or of an organ thereof; Section 9(2)(b)(i) any persons who are representatives (whether of governments or not) on any organ of the organization or are members of any committee of the organization or of an organ thereof; Section 9(2)(b)(ii) such number of officers of the organization as may be specified in the order, being the holders of s...

Section 10. Representatives at international conferences Section Where a conference is held in Kenya and is attended by the representatives of the Government of Kenya and of the government or governments of one or more other States, and it appears to the Cabinet Secretary that doubts may arise as to the extent to which the representatives of such other States and members' of their official staffs are entitled to diplomatic immunities and privileges, he may, by notice in the Gazette , specify the persons aforesaid and the Articles set out in the First Schedule to this Act which shall apply to them, and, for the purposes of those Articles, every representative of a State who is for the time being specified in such a notice shall be deemed to be a head of the mission and such of his official staff as are for the time being included in the notice shall be deemed to be members of the diplomatic staff.

Section 11. Technical assistance,etc., agencies Section 11(1)(a) declare that such agency is one to which this section applies; Section 11(1)(b) provide that, to such extent as may be specified in the order, such agency shall have the immunities and privileges set out in Part I of the Fourth Schedule to this Act; Section 11(1)(c) confer upon such classes of officers and servants of such agency as may be specified in the order, to such extent as may be so specified, the immunities and privileges set out in Part III of the said Fourth Schedule, and for the purposes of any such order references in the said Fourth Schedule to the organization shall be construed as references to the external agency named in the order. Section 11(2) An order under subsection (1) of this section shall be so framed as to secure that there are not conferred on any person any immunities or privileges greater in extent than those which are required to be conferred on that person by the agreement concerned and that no immunity or privilege is conferred on any person who is a citizen of, or permanently resident in, Kenya. Section 11(3) Where immunities and privileges are conferred upon any person by an order un...

Section 12. Modification in respect of the United Nations Organization Section any reference to the governing body or any committee of the organization shall be construed as referring to the General Assembly or any council or other organ of the United Nations Organization; and

Section 13. Reciprocal treatment Section Notwithstanding the foregoing provisions of this Part, the Cabinet Secretary may decline to accord immunities and privileges to, or may withdraw immunities and privileges from, nationals or representatives of any State on the ground that such State is failing to accord corresponding immunities and privileges to citizens or representatives of Kenya.

Section 9A. The International Criminal Court Section The judges, officials and staff of the International Criminal Court, and any counsel, experts, witnesses and other persons required to be present at the seat of that Court, shall have the privileges and immunities set out in article 48 of the Rome Statute and the agreement on privileges and immunities contemplated in that article. [Act No. 16 of 2008 , s. 174.]

Section 14. Oaths and notarial acts Section required by any person for use in that State or under the laws thereof; or

Section 15. Restriction of immunities, privileges or powers Section If it appears to the Cabinet Secretary that the immunities, privileges or powers accorded to a diplomatic mission or consular post of Kenya in the territory of any state, or to persons connected with that mission or post, are less than those accorded by this Act to the diplomatic mission or consular post of that State, or to the persons connected therewith, the Cabinet Secretary may, by order, withdraw such of the immunities, privileges or powers accorded by this Act from the diplomatic mission or consular post of that State, or from such persons connected therewith, as appears to the Cabinet Secretary to be proper.

Section 16. Evidence Section If in any proceedings any question arises whether or not any person is entitled to the benefit of any immunity or privilege, or to exercise any power, under this Act, a certificate given by the Cabinet Secretary stating any fact relating to that question shall be conclusive evidence of that fact, and any such certificate purporting to be signed by the Cabinet Secretary shall be presumed to have been signed by him until the contrary is proved.

Section 17. Making of orders Section Any order made under this Act shall, unless a draft thereof has been laid before Parliament and approved by resolution before the making thereof, be laid before Parliament without unreasonable delay, and, if a resolution is passed by Parliament within twenty days on which Parliament next sits after such order is laid before it that the order be annulled, it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the making of any new order.