Victim Protection Act

Section 1. Short title Section This Act may be cited as the Victim Protection Act.

Section 2. Interpretation Section 2(1)(a) the National Police Service; Section 2(1)(b) the office of the Director of Public Prosecution; and Section 2(1)(c) any other department, office or agency of the state or statutory body that is responsible for investigating or taking any action in relation to an offence punishable under any written law; Section 2(1)(a) the promotion of reconciliation, restitution and responsibility through the involvement of the offender, the victim, their parents, if the victim and offender are children, and their communities; or Section 2(1)(b) a systematic legal response to victims or immediate community that emphasises healing the injuries resulting from the offence; Section 2(2)(a) whether the crime perpetrated against the person has been reported to the police; Section 2(2)(b) whether the perpetrator of the crime has been identified, apprehended, prosecuted or convicted; and Section 2(2)(c) the familial relationships between the perpetrator of the crime and the victim.

Section 3. Objects and purposes Section recognize and give effect to the rights of victims of crime;

Section 4. General Principles Section 4(1) A court, administrative body or a person performing any function under this Act, shall respect and uphold the values and principles in the Constitution, and in particular, be guided be the provisions of Article 10, 27(4), 47, 48 and 49 of the Constitution. Section 4(2)(a) the court, administrative body or person does not discriminate against any victim on the basis of race, colour, gender, age, language, creed, religion, nationality, political or other opinion, cultural belief or practices, property, birth or family status, ethnic or social origin, disability, or any other grounds; Section 4(2)(b) every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken; Section 4(2)(c) the victim's dignity is preserved at all stages of a case involving the victim, from the pre-trial to post-trial phase; Section 4(2)(d) every victim is addressed in a manner appropriate to his or her age, intellectual development, and is spoken to and allowed to speak in his or her language of choice, or through an interpreter if necessary; Section 4(2)(e) every victim is treated in a manner which...

Section 5. Application of Act Section 5(1)(a) a victim of crime committed within Kenya; or Section 5(1)(b) outside Kenya, where the victim is a citizen of Kenya. Section 5(2) The Sexual Offences Act (Cap. 63A) and the Counter-Trafficking In Persons Act (Cap. 61), apply to any person contemplated in subsection (1), except in so far as this Act provides for different procedures in respect of such person. Section 5(3) No victim shall be denied the rights or welfare of a victim under this Act by reason only that similar protection measures are available under any other written law.

Section 6. Preliminary assessment of victims Section 6(1) Any person charged with the duty of assisting victims shall undertake a preliminary assessment of every victim and file a report on the victim, within twenty-four hours of report of the offence. Section 6(2) A report under subsection (1) shall provide the details of the case, including the alleged offender, any other action taken by the victim prior to reporting the case, and details of the victim as set out in section 7 . Section 6(3) A person making a report under subsection (1) shall classify the victims according to the case into general victims and vulnerable victims. Section 6(4) Where there are several victims as a consequence of an act of terrorism, internal civil unrest, war or any other activity that is likely to cause mass victimization, the officers shall immediately open a special register that shall contain the details of victims set out in section 7 .

Section 7. Victims Details Section name, age or, if unknown, the approximate age of the victim;

Section 8. Right to privacy and confidentiality Section 8(1)(a) from the media, whether print, electronic or other types; Section 8(1)(b) from unreasonable intrusion from health professionals; Section 8(1)(c) of confidentiality of their communication with victim support service providers; or Section 8(1)(d) from any other person. Section 8(2)(a) by law, or for the purpose of law enforcement or prosecution or other legal proceedings; or Section 8(2)(b) to ensure the safety and security of any person. Section 8(3) The right to privacy protected under subsection (1) shall be deemed to have been waived where the victim publicizes or consents to publication of matters relating to their case.

Section 9. Rights during the trial process Section 9(1)(a) be present at their trial either in person or through a representative of their choice; Section 9(1)(b) have the trial begin and conclude without unreasonable delay; Section 9(1)(c) give their views in any plea bargaining; Section 9(1)(d) have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law; Section 9(1)(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence; Section 9(1)(f) have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and Section 9(1)(g) be informed of the charge which the offender is facing in sufficient details. Section 9(2)(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and Section 9(2)(b) prejudicial to the rights of the accused; or Section 9(2)(b)(i) prejudicial to the rights of the accused; or Section 9(...

Section 10. Right to protection Section be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;

Section 11. Security of the victim Section 11(1) Any person dealing with a victim shall ensure that the victim shall immediately be secured from further harm before any other action is taken in relation to the victim. Section 11(2)(a) placing the victim in a place of safety, in case of a vulnerable victim; Section 11(2)(b) securing food and shelter until the safety of the victim is guaranteed; Section 11(2)(c) urgent medical treatment for the victim; Section 11(2)(c)(i) urgent medical treatment for the victim; Section 11(2)(c)(ii) immediate psychosocial support for the victim; Section 11(2)(c)(iii) police protection for the victim where appropriate; Section 11(2)(d) placing the victim with a relative where appropriate; Section 11(2)(e) rescuing and placing in a place of safety, any other persons related to the victim who may still be in the custody or control of the offender.

Section 12. Victim impact statements Section 12(1) A victim of a criminal offence may make a victim impact statement to the court sentencing the person convicted of the offence, in accordance with section 329C of the Criminal Procedure Code (Cap. 75) and that statement may be considered by the court in determining the sentence of the offender. Section 12(2) lf a victim expresses a wish to make a victim impact statement, a prosecuting agency shall refer the victim to an appropriate victims' services agency for assistance in preparing the victim impact statement. Section 12(3) A victim has a right to present a victim impact statement in all cases where the court is to consider victim protection and welfare. Section 12(4) The statement referred to under subsection (1) shall include information on the impact of the offence on the victim's life and any concerns the victim may have about their safety.

Section 13. Victim as a complainant Section subject to the provisions of the Evidence Act (Cap. 80), adduce evidence that has been left out;

Section 14. Purpose of support and welfare services Section 14(1) In addition to the enforcement of rights provided under section 8 , the Board shall provide support services as may be appropriate. Section 14(2)(a) deal with physical injury and emotional trauma; Section 14(2)(b) access and participate in the criminal justice process; Section 14(2)(c) participate in restorative justice to obtain reparations; or Section 14(2)(d) cope with problems associated with victimization.

Section 15. Right to choose whether or not to participate in restorative justice Section 15(1) A victim has a right to restorative justice. Section 15(2)(a) the participation of the offender shall not prejudice any of the offender's rights under any law or be deemed as evidence of admission or proof of guilt in respect of the offence complained of; Section 15(2)(b) any of the parties may withdraw their participation to the process at any time; Section 15(2)(c) where a process for restorative justice fails, the criminal trial of the offender shall proceed to final determination, but without prejudice to the right of the victim to seek appropriate relief in civil proceedings; and Section 15(2)(d) The process towards restorative justice does not violate the provisions of Article 159(3) of the Constitution. Section 15(3) Any agreement for restoration or other redress agreed between the victim and the offender shall be recorded and enforced as an order of the Court and may be enforced as a decree of the Court. Section 15(4) Any restorative justice process shall be for a period of six months and may only be extended with the leave of the court.

Section 16. Right to prompt release of victim’s property held as exhibit Section Where a law enforcement agency is in possession of any property of a victim, the head of the law enforcement agency shall, where the agency is satisfied that the property is no longer needed as evidence for an investigation or prosecution, ensure that the property is returned to the victim promptly.

Section 17. Rights of vulnerable victims Section 17(1)(a) physical, intellectual, or psychological impairment; Section 17(1)(b) age; Section 17(1)(c) dependency on the accused; Section 17(1)(d) trauma; Section 17(1)(e) disability; Section 17(1)(f) cultural differences; Section 17(1)(g) religious differences; Section 17(1)(h) gender; Section 17(1)(i) language; Section 17(1)(j) race; Section 17(1)(k) the nature of the offence committed against them; or Section 17(1)(l) health status. Section 17(2) Where the court or competent authority has doubts as to whether a victim should be declared a vulnerable victim in terms of this Act, the court may summon an expert to appear before it and advise it on the vulnerability of the victim. Section 17(3) Upon the declaration that a victim is a vulnerable victim for the purposes of this Act, the court or competent authority shall direct that a representative be appointed in respect of such a victim. Section 17(4) A representative so appointed under this section shall be summoned to appear before the court or competent authority on a specified date and time to act as a representative and shall upon failure to appear as directed, appear before the c...

Section 18. Rights of a child victim Section 18(1) Where it appears to any police officer or the Director of Public Prosecutions or any public officer presiding in a case where there is a vulnerable child victim, and it appears that it would not be prudent to place the victim with the parents, guardians, or care-givers, the child victim shall be committed to a place of safety until the court makes a decision in relation to the matter. Section 18(2) A child victim who is held in any institution shall be accorded treatment in accordance with the Children Act (Cap. 141).

Section 19. Right to information Section 19(1) A victim has the right to information under Article 35 of the Constitution, this Act or any other written law. Section 19(2) The information referred to in subsection (1) shall be such information as is necessary for the realization by the victim of their rights under this Act. Section 19(3) The right to obtain information under this Act shall not unreasonably delay or prejudice the investigation or prosecution or affect the safety or security of any person or in any way, interfere with the course of justice. Section 19(4)(a) the structure and operation of the justice system; Section 19(4)(b) the rights of victims in the justice system; Section 19(4)(c) the rights of the accused in the justice system; Section 19(4)(d) the role of lawyers and other officers of the court in the case; Section 19(4)(e) victim services; Section 19(4)(f) the status of the police investigations; Section 19(4)(g) the specific offences the accused is charged with as relates to the victim and the reasons therefor; Section 19(4)(h) the name or names of the accused; Section 19(4)(i) the dates and locations for hearing of the case; Section 19(4)(j) any interim or f...

Section 20. Right to submit information Section 20(1)(a) police or prosecution on a decision whether or not to lay a charge, or to appeal or withdrawal; Section 20(1)(b) court during plea bargaining, bail hearing and sentencing; Section 20(1)(c) Advisory Committee on the Power of Mercy established under the Power of Mercy Act (Cap. 94), on the release or pardon of a convict. Section 20(2)(a) the information shall be ascertained for submission to the Court; Section 20(2)(b) the victim shall ensure that any information that the victim gives is true; and Section 20(2)(c) the information may be recorded and signed by the victim. Section 20(3) The collection of any views from a victim under this section shall not prejudice or delay any proceedings relating to the offence complained of.

Section 21. Information to be given in appropriate circumstances Section where the offender is serving a custodial sentence, the name and address of the institution where the sentence is being served;

Section 22. Victim services Section 22(1)(a) that all cases shall be investigated and prosecuted timely; Section 22(1)(b) equal access to courtrooms, prosecutors' offices and any other office that may be necessary for a victim; Section 22(1)(c) availability of culturally sensitive services for persons and members of ethno-cultural and religious minorities; Section 22(1)(d) the provision of facilities for persons with disabilities; Section 22(1)(e) every court room shall be fitted with special facilities for victims awaiting courtroom appearance and the same shall be separate from holding facilities for accused persons; Section 22(1)(f) the provision of adequate and effective medical services to victims. Section 22(2) Where there is sufficient reason to believe that a victim may suffer intimidation or retaliation from the accused, offender or any agent of the accused or offender, the Cabinet Secretary for the time being responsible for matters relating to justice shall immediately place the victim under a witness protection program in accordance with the Witness Protection Act (Cap. 79). Section 22(3) Where the property of the victim obtained by the offender in the cause of the comm...

Section 23. Right to compensation Section 23(1) A victim has a right to restitution or compensation from the offender and the enforcement thereof in accordance with this Act. Section 23(2)(a) economic loss occasioned by the offence; Section 23(2)(b) loss of or damage to property; Section 23(2)(c) loss of user over the property; Section 23(2)(d) personal injury; Section 23(2)(e) costs of any medical or psychological treatment; and Section 23(2)(f) costs of necessary transportation and accommodation suffered or incurred as a result of an offence. Section 23(3) A victim has the right to restitution of any property or right to property of which the victim is deprived as a result of an offence in respect of which the victim is entitled to the rights and remedies specified in this Act. Section 23(4) A compensation order made against a convicted offender may be enforced as a judgment in civil proceedings.

Section 24. Award of compensation by Court Section The court may award compensation under this Act and such compensation may include financial compensation for expenses incurred as a result of the loss or injury resulting from the offence complained of which shall be charged from the Fund.

Section 25. Compensation or restitution orders not part of a sentence Section is in addition to any other sentence or order the court may make against a person;

Section 26. Victim restitution Section 26(1)(a) the cost of any damage to the property of the victim; Section 26(1)(b) the costs of any medical or psychological treatment incurred the victim; Section 26(1)(c) the costs of necessary transportation, accommodation and other living expenses relating to the court proceedings leading to the conviction; or Section 26(1)(d) any other relief that the court may consider necessary. Section 26(2) Where the Court orders payment of both a fine and compensation, the enforcement of the compensation order shall take precedence. Section 26(3) In every case, the enforcement of an order for compensation, restitution or restoration shall be governed by the Civil Procedure Rules.

Section 27. Establishment of the Fund Section There is established a Fund to be known as the Victim Protection Trust Fund.

Section 28. Sources of Funds Section 28(1)(a) monies appropriated by the National Assembly; Section 28(1)(b) monies received by the Fund as grants, donations or gifts from non-governmental or non-public sources; Section 28(1)(c) the victim surcharge levy; Section 28(1)(d) income generated by investments made by the Board of Trustees; Section 28(1)(e) interest accruing from the fund. Section 28(2)(a) the expenses arising out of assistance to victims of crime; Section 28(2)(b) balances that may accrue to the Fund; Section 28(2)(c) expenses arising out of administering the fund; Section 28(2)(d) such other purposes as the Board may recommend.

Section 29. Victim surcharge levy Section Without prejudice to section 26 , if a fine is imposed on a person, under any law in Kenya, the person shall pay to the government, at the time and place where the fine is payable, a victim surcharge levy calculated in accordance with a formula prescribed by the Cabinet Secretary for the time being responsible for justice.

Section 30. Board of Trustees Section 30(1)(a) the Secretary of the Board; Section 30(1)(b) one shall be a person with experience in financial management; and Section 30(1)(b)(i) one shall be a person with experience in financial management; and Section 30(1)(b)(ii) the other shall be a person conversant with issues relating to victim protection. Section 30(2) Appointment of members under subsection (1)(b) shall be by notice in the Gazette , and shall serve for a term of three years which may be renewed for a further and final term of three years. Section 30(3) Not more than two thirds of the Board members shall be of the same gender. Section 30(4) The Board of Trustees shall conduct its affairs in accordance with regulations prescribed by the Cabinet Secretary and subject to the law relating to trustees.

Section 31. Establishment of the Board Section 31(1) There is established a board to be known as the Victim Protection Board as a body unincorporated. Section 31(2)(a) a chairperson appointed by the Cabinet Secretary from among the members; Section 31(2)(b) the Director of the Witness Protection Agency who shall be the Secretary; Section 31(2)(c) the Principal Secretary of the Ministry for the time being responsible for matters relating to justice; Section 31(2)(d) the Principal Secretary of the Ministry for the time being responsible for correctional services; Section 31(2)(e) the Principal Secretary of the Ministry for the time being responsible for matters relating to children affairs; Section 31(2)(f) the Director of Public Prosecutions; Section 31(2)(g) the Inspector-General of Police or his or her representative; Section 31(2)(h) one person nominated by the National Gender and Equality Commission; and Section 31(2)(i) two representatives from civil society dealing with issues relating to child and women victims' protection. Section 31(3) The members under subsection (2)(h) and (i), shall be appointed by the Cabinet Secretary, upon nomination by the respective nominating bodie...

Section 32. Functions of the Board Section 32(1) The functions of the Board shall be to advise the Cabinet Secretary on inter-agency activities aimed at protecting victims of crime and the implementation of preventive, protective and rehabilitative programmes for victims of crime. Section 32(2)(a) formulation of a comprehensive and integrated program to protect victims of crime; Section 32(2)(b) coordination of activities relating to protection of victims of crime; Section 32(2)(c) dissemination of information on the law and the issues relating to victim protection through concerned agencies and non-governmental organizations; Section 32(2)(d) development of a charter for victims of crime; Section 32(2)(e) formulating and coordinating training programs for law enforcement agents on victim protection; Section 32(2)(f) monitoring and evaluation of the progress of Kenya with respect to protection of victims of crime; Section 32(2)(g) consultation and advocacy with Government departments and agencies and non-governmental organizations, to advance the purposes of this Act; Section 32(2)(h) compilation and documentation of desegregated data annually, by age, County and gender, of victims...

Section 33. Reporting requirements Section The Board shall, in every year, submit to the Cabinet Secretary and to the National Assembly, an annual report of the policies, programmes and activities relating to the implementation of this Act.

Section 34. Regulations Section 34(1) The Cabinet Secretary may make regulations regarding procedures to be put in place to monitor and assess the proper application of and compliance with this Act. Section 34(2)(a) provide that the implementation of this Act be monitored annually or at such other interval as may be prescribed, with the object of assessing the implications, effectiveness and proper application of and compliance with this Act; Section 34(2)(b) be made after consultation with the Cabinet Secretary for the time being responsible for matters relating to women and children; Section 34(2)(c) the authority of the Cabinet Secretary to make regulations under this Act shall be limited to bringing into effect the provisions of this Act and for the fulfilment of the objectives of this Act; and Section 34(2)(d) the principles and standards applicable to the regulations made under this section are those set out in the Interpretation and General Provisions Act (Cap. 2) and the Statutory Instruments Act (Cap. 2A).

Section 35. Employers not to penalize victims Section 35(1)(a) to appear in court as a witness in a proceeding respecting an offence; Section 35(1)(b) to attend at a meeting with law enforcement officers at the request of those officers to assist in an investigation or preparation for the prosecution of an offence. Section 35(2) A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a term of not exceeding six months, or to both.

Section 36. General Penalties Section A person who contravenes any provision of this Act for which no penalty is specified shall be liable, upon conviction to a fine not exceeding one million or to imprisonment for a term not exceeding ten years.