Anti Corruption And Economic Crimes Act - as Plain Text by MWakili

LAWS OF KENYA The AnTi-CorrupTion And eConomiC Crimes ACT Chapter 65 Revised Edition 2009 (2003) Published by the National Council for Law Reporting with the Authority of the Attorney General www.kenyalaw.org 2 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 CHAPTER 65 THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT part I - prelImInary 1Short title and commencement.

2Interpretation.

part II - appoIntment of SpeCIal magIStrateS 3Power to appoint special judges.

4Cases triable by special Magistrates.

5Procedure and powers of special Magistrates.

part III - Kenya antI-CorruptIon CommISSIon and advISory Board A- Kenya Anti-Corruption Commission 6Establishment of Commission.

7Functions of Commission.

8Director and staff of the Commission.

9Deputy Director.

10Independence of Commission and Director.

11Cap.

446 not to apply.

12Co-operation with other bodies.

13Financial arrangements.

14Accounts and audit.

15Annual report.

B - Kenya Anti-Corruption Advisory Board 16Establishment of Advisory Board.

17Functions of Advisory Board.

18Independence of Advisory Board.

19Committees of the Board.

20Chairman and Vice-chairman.

21Secretary.

22Procedures of the Advisory Board.

part Iv - InveStIgatIonS 23Investigators.

24Identication for investigators.

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65 3 25Complaint not investigated.

25ACessation of investigations.

26Statement of suspects property.

27Requirement to provide information.

28Production of records and property.

29Search of premises.

30Admissibility of things produced or found.

31Surrender of travel documents.

32Arrest of persons.

33Disclosure that may affect investigation.

34Impersonating Investigator.

35Investigation report.

36Quarterly reports.

37Annual report on prosecutions.

part v - offenCeS 38Meaning of agent and principal.

39Bribery involving agents.

40Secret inducements for advice.

41Deceiving principal.

42Conicts of interest.

43Improper benets to trustees for appointments.

44Bid rigging, etc.

45Protection of public property and revenue, etc.

46Abuse of ofce.

47Dealing with suspect property.

47AAttempts, conspiracies etc.

48Penalty for offence under this Part.

49Custom not a defence.

50Impossibility, no intention, etc.

not a defence.

part vI - CompenSatIon and reCovery of Improper BenefItS 51Liability for compensation.

52Liability for improper benets.

53Liability-miscellaneous provisions.

54Compensation orders on conviction.

55Forfeiture of unexplained assets.

56Order preserving suspect property, etc.

56AAppointment of receiver.

56BOut of Court settlement.

part vII - evIdenCe 57Unexplained assets, etc.

as corroboration.

58Presumption of corruption if act shown.

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65 Anti-Corruption and Economic Crimes [Rev.

2009 59Certicates to show value of property, etc.

60Rule, etc.

relating to accomplices.

61Certicates to show ofce and compensation.

part vIIa - exeCutIon 61AExecution against the Commission.

part vIII - mISCellaneouS 62Suspension, if charged with corruption or economic crime.

63Suspension, etc.

if convicted of corruption or economic crime.

64Disqualication if convicted of corruption or economic crime.

65Protection of informers.

66Obstructing persons under this Act, etc.

67Conduct outside Kenya - offences.

68Regulations.

part Ix - repeal, tranSItIon and amendmentS 69Interpretation.

70Repeal of Cap 65.

71Offences under repealed Act.

72Temporary Director, etc.

73Transfer from anti-corruption unit of the Kenya Police Force.

74Amendment of section 42 of Cap 22.

First Schedule: Provisions relating to the Staff of the Commission Second Schedule: Provisions relating to Members of the Advisory Board Third Schedule: Provisions as to the Conduct of Business and Affairs of the Advisory Board www.kenyalaw.org Rev.

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65 5 CHAPTER 65 THE ANTI-CORRUPTION AND ECONOMIC CRIMES 3 of 2003, ACT 7 of 2007, Sch.

th Date of Assent: 30 April, 2003 nd Date of Commencement: 2 May, 2003 AN ACT of Parliament to provide for the prevention, investigation and punishment of corruption, economic crime and related offences and for matters incidental thereto and connected therewith ENACTED by the Parliament of Kenya as follows:- part I prelImInary 1.

This Act may be cited as the Anti-Corruption and Economic Short title and nd commencement.

Crimes Act, 2003 and shall come into force on 2 May, 2003.

2.

(1) In this Act, unless the context otherwise requires- Interpretation.

7 of 2007, Sch.

Advisory Board means the Kenya Anti-Corruption Advisory Board established under Part III; Assistant Director means an Assistant Director of the Commission; benet means any gift, loan, fee, reward, appointment, service, favour, forbearance, promise or other consideration or advantage; Commission means the Kenya Anti-Corruption Commission established under Part III; corruption means- (a) an offence under any of the provisions of sections 39 to 44, 46 and 47; (b) bribery; (c) fraud; (d) embezzlement or misappropriation of public funds; (e) abuse of ofce; www.kenyalaw.org 6 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (f) breach of trust; or (g) an offence involving dishonesty- (i) in connection with any tax, rate or impost levied under any Act; or (ii) under any written law relating to the elections of persons to public ofce; Director means the Director of the Commission; economic crime means- (a) an offence under section 45; or (b) an offence involving dishonesty under any written law providing for the maintenance or protection of the public revenue; investigator means a person authorized by the Director under section 23 to conduct an investigation on behalf of the Commission; Minister means the Minister responsible for integrity issues; private body means any person or organisation not being a public body and includes a voluntary organisation, charitable organisation, company, partnership, club and any other body or organisation howsoever constituted; public body means- (a) the Government, including Cabinet, or any department, service or undertaking of the Government; (b) the National Assembly or the Parliamentary Service; (c) a local authority; (d) any corporation, council, board, committee or other body which has power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law; or www.kenyalaw.org Rev.

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65 7 (e) a corporation, the whole or a controlling majority of the shares of which are owned by a person or entity that is a public body by virtue of any of the preceding paragraphs of this denition; public ofcer means an ofcer, employee or member of a public body, including one that is unpaid, part-time or temporary; unexplained assets means assets of a person- (a) acquired at or around the time the person was reasonably suspected of corruption or economic crime; and (b) whose value is disproportionate to his known sources of income at or around that time and for which there is no satisfactory explanation.

(2) For the purposes of this Act, a person shall be deemed to be in possession of any record, property, information or other thing if the possession of it is under his control.

part II - appoIntment of SpeCIal magIStrateS 3.

(1) The Chief Justice may, by notication in the Kenya Gazette, Power to appoint appoint as many special Magistrates as may be necessary for such area special magistrates.

or areas or for such case or group of cases as may be specied in the 7 of 2007, Sch.

notication to try the following offences, namely- (a) corruption and economic crimes and related offences; and (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specied in paragraph (a).

(2) A person shall not be qualied for appointment as a special Magistrate under this Act unless he is or has been a chief magistrate or a principal magistrate or an advocate of at least ten years standing.

4.

(1) Notwithstanding anything contained in the Criminal Cases triable by Procedure Code, or in any other law for the time being in force, the special Magistrates.

7 of 2007, Sch.

offences specied in this Act shall be tried by special Magistrates Cap.

75.

only.

(2) Every offence specied in this Act shall be tried by the special Magistrate for the area within which it was committed, or, as the case may be, by the special Magistrate appointed for the case, or where there are more special Magistrates than one for such area, by one of them as may be specied in this behalf by the Chief Justice.

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65 Anti-Corruption and Economic Crimes [Rev.

2009 Cap.

75.

(3) When trying any case, a special Magistrate may also try any offence, other than an offence specied in this Act, with which the accused may, under the Criminal Procedure Code, be charged at the same trial.

Cap.

75.

(4) Notwithstanding anything contained in the Criminal Procedure Code, a special Magistrate shall, as far as practicable, hold the trial of an offence on a day-to-day basis until completion.

Procedure and 5.

(1) A special Magistrate may, with a view to obtaining the powers of special evidence of any person supposed to have been directly or indirectly Magistrates.

concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstance within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall be a pardon for purposes of section 77 (6) of the Constitution.

Cap.

75.

(2) The provisions of the Criminal Procedure Code and the Cap.

10.

Magistrates Courts Act shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Magistrate; and for the purposes of the said provisions, the Court of the special Magistrate shall be deemed to be a Court and the person conducting a prosecution before a special Magistrate shall be deemed to be a public prosecutor.

(3) A special Magistrate may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted.

part III - Kenya antI-CorruptIon CommISSIon and advISory Board A-Kenya Anti Corruption Commission Establishment of 6.

(1) The Kenya Anti-Corruption Commission Establishment is Commission.

hereby established as a body corporate.

(2) The Commission shall have all the powers necessary or expedient for the performance of its functions.

(3) Without limiting the generality of subsection (2), the Commission shall have perpetual succession and a common seal and shall be capable of- (a) suing and being sued in its corporate name; and (b) holding and alienating moveable and immovable www.kenyalaw.org Rev.

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65 9 property.

7.

(1) The Commission shall have the following functions- Functions of Commission.

(a) to investigate any matter that, in the Commissions opinion, raises suspicion that any of the following have occurred or are about to occur- (i) conduct constituting corruption or economic crime; (ii) conduct liable to allow, encourage or cause conduct constituting corruption or economic crime; (b) to investigate the conduct of any person that, in the opinion of the Commission, is conducive to corruption or economic crime; (c) to assist any law enforcement agency of Kenya in the investigation of corruption or economic crime, (d) at the request of any person, to advise and assist the person on ways in which the person may eliminate corrupt practices; (e) to examine the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices and to secure the revision of methods of work or procedures that, in the opinion of the Commission, may be conducive to corrupt practices; (f) to advise heads of public bodies of changes in practices or procedures compatible with the effective discharge of the duties of such bodies that the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt practices; (g) to educate the public on the dangers of corruption and economic crime and to enlist and foster public support in combating corruption and economic crime; (h) to investigate the extent of liability for the loss of or damage to any public property and- (i) to institute civil proceedings against any person for the recovery of such property or for compensation; and (ii) to recover such property or enforce an order for com- www.kenyalaw.org 10 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 pensation even if the property is outside Kenya or the assets that could be used to satisfy the order are outside Kenya; and (iii) to carry out any other functions conferred on the Com- mission by or under this Act or any other law.

(2) A matter may be investigated by the Commission under subsection (1) at the request of the National Assembly, the Minister or the Attorney-General, or on receipt of a complaint, or on its own initiative.

(3) The Commission may refer any offence that comes to its notice in the course of an investigation under subsection (1) to any other appropriate person or body.

Director and staff of 8.

(1) The Commission shall have a Director who shall be the the Commission.

chief executive ofcer of the Commission and who shall be responsible for its direction and management.

(2) The Commission shall have up to four Assistant Directors to assist the Director.

(3) The Director and Assistant Directors shall be persons recommended by the Advisory Board and approved by the National Assembly for appointment to their respective positions.

(4) On the approval of a person by the National Assembly under subsection (3), the President shall appoint the person concerned to the ofce in respect of which the approval was given.

(5) The terms and conditions of service of the Director and the Assistant Directors shall be determined by the Advisory Board.

(6) The Commission may, upon such terms and conditions of service as the Commission may determine, employ such staff or hire the services of such consultants, experts or independent investigators as may be necessary for the proper performance of its functions.

(7) The First Schedule shall have effect in respect of the staff of the Commission.

Deputy Director.

9.

(1) The Director shall appoint one of the Assistant Directors as Deputy Director.

(2) The Director may at any time revoke an appointment under this section and appoint another Assistant Director as Deputy Director.

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65 11 (3) During the illness or absence of the Director or a vacancy in the ofce of the Director, the Deputy Director shall have and may exercise and perform the powers and functions of the Director and shall be deemed to be the Director.

10.

In the performance of their functions, the Commission and Independence of the Director shall not be subject to the direction or control of any other Commission and person or authority, and shall be accountable only to Parliament.

Director.

11.

The State Corporations Act shall not apply to the Cap.

446 not to Commission.

apply.

12.

(1) The Commission may in the performance of its functions Co-operation with work in co-operation with any other persons or bodies it may think other bodies.

appropriate, and it shall be the duty of any such person or body to afford the Commission every co-operation.

(2) Without limiting the generality of subsection (1), such persons or bodies include the Controller and Auditor-General and the Director of the Criminal Investigation Department.

(3) The Commission may in the performance of its functions work in co-operation with any foreign government or international or regional organization.

13.

(1) The nancial year of the Commission shall be the period Financial of twelve months ending on 30th June in each year.

arrangements.

(2) At least three months before the commencement of each nancial year, the Director shall cause estimates of the revenue and expenditure of the Commission for that year to be prepared and submitted to the Minister and the Treasury for approval.

(3) The estimates shall make provision for all the estimated expenditures of the Commission for the nancial year and, in particular, shall provide for expenditures for- (a) the payment of salaries, allowances and other charges in respect of the staff of the Commission; (b) the payment of pensions, gratuities and other charges in respect of former staff of the Commission; (c) the proper maintenance of buildings and grounds of the Commission; www.kenyalaw.org 12 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (d) the maintenance, repair and replacement of the equipment and other property of the Commission; and (e) the payment of allowances and expenses of the Advisory Board.

(4) The Commission shall make provision for the renewal of depreciating assets and the payment of pensions and other retirement benets by the establishment of sinking funds and for contributions to such reserve and stabilization funds as may be required.

(5) The expenditures of the Commission shall be charged on and issued out of the Consolidated Fund without further appropriation other than this Act.

(6) Without prejudice to subsection (5), there may be made to and accepted by the Commission such grants, gifts, donations or bequests as the Advisory Board may approve: Provided that no grant, gift, donation or bequest shall be approved if it is made on any condition that the Commission perform any function or discharge any duty or obligation other than a function, duty or obligation aimed at achieving its objects.

Accounts and audit.

14.

(1) The Commission shall cause to be kept proper books and records of account of its income, expenditure, assets and liabilities.

Cap.

412.

(2) The annual accounts of the Commission shall be prepared, audited and reported upon in accordance with the Exchequer and Audit Act.

Annual report.

15.

(1) The Director shall cause an annual report to be prepared for each nancial year.

(2) The Director shall submit the annual report to the Advisory Board and the Minister within four months after the end of the year to which it relates.

(3) The annual report shall contain, in respect of the year to which it relates- (a) the nancial statements of the Commission; and (b) a description of the activities of the Commission.

(4) Without limiting what may be included in the annual report, the annual report shall include- www.kenyalaw.org Rev.

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65 13 (a) the information set out in the quarterly reports under section 36 for the year to which the annual report relates; (b) a summary of the steps taken, during the year, in each civil proceeding instituted by the Commission and the status, at the end of the year, of each such civil proceeding; and (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.

(5) The Minister shall, within thirty days after receiving the annual report, transmit it to the National Assembly.

(6) The Commission shall cause the annual report to be published in the Gazette and in such other manner as the Commission may determine.

B-Kenya Anti-Corruption Advisory Board 16.

(1) The Kenya Anti-corruption Advisory Board is hereby Establishment of established.

Advisory Board.

(2) The Advisory Board shall be an unincorporated body consisting of- (a) one member nominated by each of the following- (i) the Law Society of Kenya; (ii) the Institute of Certied Public Accountants of Kenya; (iii) the International Federation of Women Lawyers (FIDA) Kenya Chapter; (iv) the Kenya Association of Manufacturers; (v) the joint forum of religious organizations described in subsection (3); (vi) the Federation of Kenya Employers; (vii) the Kenya Bankers Association; (viii) the Central Organisation of Trade Unions; www.kenyalaw.org 14 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (ix) the Association of Professional Societies in East Africa; (x) the Architectural Association of Kenya; (xi) the Institution of Engineers of Kenya; and (xii) the Kenya Medical Association; and (b) the Director.

(3) The joint forum of religious organizations referred to in subsection (2)(a)(v) shall consist of representatives of- (a) the Supreme Council of Kenya Muslims; (b) the Kenya Episcopal Conference; (c) the National Council of Churches of Kenya; (d) the Evangelical Fellowship of Kenya; and (e) the Hindu Council of Kenya.

(4) The Second Schedule shall apply in respect of the Advisory Board and its members.

Functions of 17.

(1) The principal function of the Advisory Board is to Advisory Board.

advise the Commission generally on the exercise of its powers and the performance of its functions under this Act.

(2) The Advisory Board shall have such other functions as may be conferred on it by or under this Act.

Independence of 18.

In the performance of its functions, the Advisory Board shall Advisory Board.

not be subject to the direction or control of any other person or authority and shall be accountable only to Parliament.

Committees of the 19.

(1) For the better performance of its functions, the Advisory Board.

Board may establish committees in respect of the investigative, preventive and educational functions of the Commission or in respect of any other matter.

(2) The Advisory Board may delegate any of its powers and functions to any such committee, subject to subsection (3).

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65 15 (3) The Advisory Board may not delegate the power or function to do any of the following- (a) recommend a person to be appointed as Director or Assistant Director; (b) appoint a person to be an acting Assistant Director or revoke such an appointment; (c) recommend the termination of a persons appointment as the Director or an Assistant Director; (d) request the appointment of a Tribunal under paragraph 5 (4) of the First Schedule.

20.

(1) The Advisory Board shall nominate one of its nominated Chairman and members to be the Chairman of the Advisory Board and another of its Vice-chairman.

nominated members to be its Vice-chairman.

(2) The members so nominated shall be appointed to their respective ofces by the President.

(3) Subject to an earlier resignation or termination, the Chairman and Vice-chairman shall each hold ofce until his current term as a member of the Advisory Board expires.

21.

The Director shall be the secretary of the Advisory Board.

Secretary.

22.

(1) The business and affairs of the Advisory Board shall be Procedures of the conducted in accordance with the Third Schedule.

Advisory Board.

(2) Except as provided in the Third Schedule, the Advisory Board may regulate its own procedure.

(3) Seven nominated members of the Advisory Board shall constitute a quorum for the transaction of any business of the Board.

(4) The Advisory Board may invite any person to attend any of its meetings and to participate in its deliberations, but such an invitee shall not have a vote in any decision of the Board.

part Iv - InveStIgatIonS 23.

(1) The Director or a person authorized by the Director may Investigators.

conduct an investigation on behalf of the Commission.

7 of 2007, Sch.

(2) Except as otherwise provided by this Part, the powers conferred www.kenyalaw.org 16 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 on the Commission by this Part may be exercised, for the purposes of an investigation, by the Director or an investigator.

(3) For the purposes of an investigation, the Director and an investigator shall have the powers, privileges and immunities of a police ofcer in addition to any other powers the Director or investigator has under this Part.

Cap.

75.

(4) The provisions of the Criminal Procedure Code, the Evidence Cap.

80.

Act, the Police Act and any other law conferring on the police the powers, Cap.

84.

privileges and immunities necessary for the detection, prevention and investigation of offences relating to corruption and economic crime shall, so far as they are not inconsistent with the provisions of this Act or any other law, apply to the Director and an investigator as if reference in those provisions to a police ofcer included reference to the Director or an investigator.

24.

(1) The Commission shall issue identication documentation Identication for investigators.

to an investigator and such identication shall be evidence that the person to whom it is issued is an investigator.

(2) The identication documentation issued by the Commission shall be signed by the Director.

Complaint not 25.

If the Commission receives a complaint concerning corrupt investigated.

conduct on the part of any person and the Commission declines to investigate or discontinues its investigation before the investigation is concluded, the Commission shall inform the complainant in writing of its decision and of the reasons for its decision.

Cessation of 25A.

(1) The Commission may, in consultation with the Minister investigations.

and the Attorney General, tender an undertaking in a form prescribed 7 of 2007, Sch.

by the Minister, not to institute or continue with investigations against any person suspected of an offence under this Act.

(2) Where the Commission intends to take action as specied in subsection (1), it shall by notice in the daily newspapers invite interested persons to approach it for such an undertaking within a period specied in the notice.

(3) An undertaking under this section shall only be made in cases where the suspected person- (a) makes a full and true disclosure of all material facts relating to past corruption or economic crime; (b) through the Commission, pays or refunds to, or deposit www.kenyalaw.org Rev.

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65 17 with, the Commission for, all persons affected, any property or money irregularly obtained, with interest thereon at a rate prescribed by the Minister; (c) makes reparation to any person affected by his corrupt conduct; and (d) pays for all loss of public property occasioned by his corrupt conduct.

(4) The Commission shall publish its intention to make the undertaking by notice in at least two newspapers of national circulation- (a) stating the name of the proposed beneciary of the undertaking; (b) stating the offence of which the person is suspected; (c) conrming that the person has fullled all the conditions set out in subsection (2); and (d) inviting any person with an objection to the proposed undertaking to forward their objections to the Commission within a period specied in the notice.

(5) An aggrieved person may object to the proposed undertaking on the grounds that- (a) the suspected person has not fully satised the conditions set out in subsection (2); or (b) he has any other evidence relevant under this section which may affect the Commissions decision regarding the undertaking.

(6) The Commission shall consider all objections submitted and shall take such action as may be appropriate in the circumstances.

(7) The Commission shall not make any undertaking in respect of corrupt conduct or economic crime which leads to circumstances which cause a danger to public safety, law and order.

(8) Any person in respect of whom the Commission makes an undertaking under this section shall be disqualied from holding public ofce.

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2009 Statement of 26.

(1) If, in the course of investigation into any offence, the suspects property.

Director is satised that it could assist or expedite such investigation, 7 of 2007, Sch.

the Director may, by notice in writing, require a person who, for reasons to be stated in such notice, is reasonably suspected of corruption or economic crime to furnish, within a reasonable time specied in the notice, a written statement in relation to any property specied by the Director and with regard to such specied property- (a) enumerating the suspected persons property and the times at which it was acquired; and (b) stating, in relation to any property that was acquired at or about the time of the suspected corruption or economic crime, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property.

(2) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

(3) The powers of the Commission under this section may be exercised only by the Director.

27.

(1) The Commission may apply ex-parte to the court for an Requirement to order requiring an associate of a suspected person to provide, within provide information, etc.

a reasonable time specied in the order, a written statement stating, in 7 of 2007, Sch.

relation to any property specied by the Director, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property.

(2) In subsection (1), associate of a suspected person means a person, whether or not suspected of corruption or economic crime, who the investigator reasonably believes may have had dealings with a person suspected of corruption or economic crime.

(3) The Commission may by notice in writing require any person to provide, within a reasonable time specied in the notice, any information or documents in the persons possession that relate to a person suspected of corruption or economic crime.

(4) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

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65 19 (5) No requirement under this section requires anything to be disclosed that is protected by the privilege of advocates including anything protected by section 134 or 137 of the Evidence Act.

Cap.

80.

28.

(1) The Commission may apply, with notice to affected parties, Production of records to the court for an order to- and property.

(a) require a person, whether or not suspected of corruption 7 of 2007, Sch.

or economic crime, to produce specied records in his possession that may be required for an investigation; and (b) require that person or any other to provide explanations or information within his knowledge with respect to such records, whether the records were produced by the person or not.

(2) A requirement under subsection (1)(b) may include a requirement to attend personally to provide explanations and information.

(3) A requirement under subsection (1) may require a person to produce records or provide explanations and information on an ongoing basis over a period of time, not exceeding six months.

(4) The six month limitation in subsection (3) does not prevent the Commission from making further requirements for further periods of time as long as the period of time in respect of which each requirement is made does not exceed six months.

(5) Without affecting the operation of section 30, the Commission may make copies of or take extracts from any record produced pursuant to a requirement under this section.

(6) A requirement under this section to produce a record stored in electronic form is a requirement- (a) to reduce the record to hard copy and produce it; and (b) if specically required, to produce a copy of the record in electronic form.

(7) In this section, records includes books, returns, bank accounts or other accounts, reports, legal or business documents and correspondence other than correspondence of a strictly personal nature.

(8) The Commission may by notice in writing require a person to www.kenyalaw.org 20 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 produce for inspection, within a reasonable time specied in the notice, any property in the persons possession, being property of a person reasonably suspected of corruption or economic crime.

(9) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

(10) No requirement under this section requires anything to be disclosed that is protected by the privilege of advocates including Cap.

80.

anything protected by section 134 or 137 of the Evidence Act.

Search of premises.

29.

(1) The Commission may, with a warrant, enter upon and search any premises for any record, property or other thing reasonably suspected to be in or on the premises and that has not been produced by a person pursuant to a requirement under the foregoing provisions of this Part.

(2) The power conferred by this section is in addition to, and does not limit or restrict, a power conferred by section 23 (3) or by any other provision of this Part.

Admissibility of 30.

Where the notice is directed at a person under investigation things produced or or a person who has been charged with an offence of corruption or an found.

economic crime, any statement, record or information given pursuant 7 of 2007, Sch.

to such notice, shall not be given in evidence against such person in any criminal proceedings except where such person is charged with knowingly or recklessly giving false information.

Surrender of travel 31.

(1) On the ex parte application of the Commission, a court documents.

may issue an order requiring a person to surrender his travel documents to the Commission if- (a) the person is reasonably suspected of corruption or economic crime; and (b) the corruption or economic crime concerned is being investigated.

(2) If a person surrenders his travel documents pursuant to an order under subsection (1), the Commission- (a) shall return the documents after the investigation of the corruption or economic crime concerned is completed, if no criminal proceedings are to be instituted; and www.kenyalaw.org Rev.

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65 21 (b) may return the documents, at its discretion, either with or without conditions to ensure the appearance of the person.

(3) A person against whom an order under subsection (1) is made may apply to the court to discharge or vary the order or to order the return of his travel documents and the court may, after hearing the parties, discharge or vary the order, order the return of the travel documents, or dismiss the application.

(4) If a person fails to surrender his travel documents pursuant to an order under subsection (1), the person may be arrested and brought before the court and the court shall, unless the court is satised that the person does not have any travel documents, order that the person be detained pending the conclusion of the investigation of the corruption or economic crime concerned.

(5) A person who is detained pursuant to an order under subsection (4) shall be released if- (a) he surrenders his travel documents to the Commission; (b) he satises the court that he does not have any travel documents; or (c) the investigation of the corruption or economic crime concerned is completed and the court is satised that no criminal proceedings are to be instituted.

(6) A person who is detained pursuant to an order under subsection (4) shall be brought before the court at least every eight days or at such shorter intervals as the court may order, to determine if the person should be released under subsection (5).

32.

Without prejudice to the generality of section 23 (3), the Arrest of persons.

Director and an investigator shall have power to arrest any person for and charge them with an offence, and to detain them for the purpose of an investigation, to the like extent as a police ofcer.

33.

(1) No person shall, except with leave of the Director or with Disclosure that may other lawful excuse, disclose the details of an investigation under this affect investigation.

Act, including the identity of anyone being investigated.

(2) A person who contravenes this section is guilty of an offence and is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

www.kenyalaw.org 22 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 Impersonating 34.

(1) No person other than an investigator shall represent himself investigator.

to be or act as an investigator.

(2) A person who contravenes this section is guilty of an offence and is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

Investigation report.

35.

(1) Following an investigation the Commission shall report to the Attorney-General on the results of the investigation.

(2) The Commissions report shall include any recommendation the Commission may have that a person be prosecuted for corruption or economic crime.

Quarterly reports.

36.

(1) The Commission shall prepare quarterly reports setting out the number of reports made to the Attorney-General under section 35 and such other statistical information relating to those reports as the Commission considers appropriate.

(2) A quarterly report shall indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted.

(3) The Commission shall give a copy of each quarterly report to the Attorney-General.

(4) The Attorney-General shall lay a copy of each quarterly report before the National Assembly.

(5) The Commission shall cause each quarterly report to be published in the Gazette.

Annual report on 37.

(1) The Attorney General shall prepare an annual report with prosecutions.

respect to prosecutions for corruption or economic crime.

(2) The year covered by an annual report shall be the year ending on December 31st.

(3) The annual report for a year shall include a summary of the steps taken, during the year, in each prosecution and the status, at the end of the year, of each prosecution.

(4) The annual report shall also indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted and shall set out succinctly the reasons for not accepting the recommendation.

www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 23 (5) The annual report for a year need not include the status of a prosecution that has been nally concluded in a previous year if that status was included in a previous annual report.

(6) The Attorney-General shall lay each annual report before the National Assembly within the rst ten sitting days of the National Assembly following the end of the year to which the report relates.

(7) The rst annual report following the coming into operation of this section shall cover the period from the coming into operation of this section to the following December 31st.

part v offenCeS 38.

(1) In this Part- Meaning of agent agent means a person who, in any capacity, and whether in and principal.

the public or private sector, is employed by or acts for or on behalf of another person; principal means a person, whether in the public or private sector, who employs an agent or for whom or on whose behalf an agent acts.

(2) If a person has a power under the Constitution or an Act and it is unclear, under the law, with respect to that power whether the person is an agent or which public body is the agents principal, the person shall be deemed, for the purposes of this Part, to be an agent for the Government and the exercise of the power shall be deemed to be a matter relating to the business or affairs of the Government.

(3) For the purposes of this Part- (a) a Cabinet Minister shall be deemed to be an agent for both the Cabinet and the Government; and (b) the holder of a prescribed ofce or position shall be deemed to be an agent for the prescribed principal.

(4) The regulations made under this Act may prescribe ofces, positions and principals for the purposes of subsection (3)(b).

39.

(1) This section applies with respect to a benet that is an Bribery involving inducement or reward for, or otherwise on account of, an agent- agents.

(a) doing or not doing something in relation to the affairs or 7 of 2007, Sch.

business of the agents principal; or www.kenyalaw.org 24 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (b) showing or not showing favour or disfavour to anything, including to any person or proposal, in relation to the affairs or business of the agents principal.

(2) For the purposes of subsection (1)(b), a benet, the receipt or expectation of which would tend to inuence an agent to show favour or disfavour, shall be deemed to be an inducement or reward for showing such favour or disfavour.

(3) A person is guilty of an offence if the person- (a) corruptly receives or solicits, or corruptly agrees to receive or solicit, a benet to which this section applies; or (b) corruptly gives or offers, or corruptly agrees to give or offer, a benet to which this section applies.

Secret inducements 40.

(1) This section applies with respect to a benet that is an for advice.

inducement or reward for, or otherwise on account of, the giving of advice to a person.

(2) A person is guilty of an offence if the person- (a) receives or solicits, or agrees to receive or solicit, a benet to which this section applies if the person intends the benet to be a secret from the person being advised; or (b) gives or offers, or agrees to give or offer, a benet to which this section applies if the person intends the benet to be a secret from the person being advised.

(3) In this section, giving advice includes giving information.

Deceiving principal.

41.

An agent who, to the detriment of his principal, makes a statement to his principal that he knows is false or misleading in any material respect is guilty of an offence.

(2) An agent who, to the detriment of his principal, uses, or gives to his principal, a document that he knows contains anything that is false or misleading in any material respect is guilty of an offence.

42.

(1) If an agent has a direct or indirect private interest in a Conicts of interest.

decision that his principal is to make the agent is guilty of an offence if- (a) the agent knows or has reason to believe that the principal is unaware of the interest and the agent fails to disclose the www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 25 interest; and (b) the agent votes or participates in the proceedings of his principal in relation to the decision.

(2) A private body may authorize its agent to vote or participate in the proceedings of the private body and the voting or participation of an agent as so authorized is not a contravention of subsection (1).

(3) An agent of a public body who knowingly acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body is guilty of an offence.

(4) Subsection (3) does not apply with respect to an employment contract of the agent, or a related or similar contract or agreement or to any prescribed contract, agreement or investment.

43.

(1)This section applies with respect to a benet that is an Improper benets inducement or reward for the appointment of a person as a trustee of to trustees for property or for joining or assisting in such an appointment.

appointments.

(2) Subject to subsection (3), a person is guilty of an offence if the person- (a) receives or solicits, or agrees to receive or solicit, from a trustee of property a benet to which this section applies; or (b) gives or offers, or agrees to give or offer, to a trustee of property a benet to which this section applies.

(3) Subsection (2) does not apply to anything done with the informed consent of every person benecially entitled to the property or in accordance with an order of a court.

(4) In this section, trustee of property includes- (a) an executor or administrator appointed to deal with the property; (b) a person who, under a power of attorney or a power of appointment, has authority over the property; and (c) a person or a member of a committee managing or administering, or appointed or employed to manage or administer, the property on behalf of a person under an www.kenyalaw.org 26 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 inrmity or incapacity of mind.

Bid rigging, etc.

44.

(1) This section applies with respect to a benet that is an inducement or reward for- (a) refraining from submitting a tender, proposal, quotation or bid; (b) withdrawing or changing a tender, proposal, quotation or bid; or (c) submitting a tender, proposal, quotation or bid with a specied price or with any specied inclusions or exclusions.

(2) A person is guilty of an offence if the person- (a) receives or solicits or agrees to receive or solicit a benet to which this section applies; or (b) gives or offers or agrees to give or offer a benet to which this section applies.

Protection of public 45.

(1) A person is guilty of an offence if the person fraudulently property and revenue, or otherwise unlawfully- etc.

(a) acquires public property or a public service or benet; (b) mortgages, charges or disposes of any public property; (c) damages public property, including causing a computer or any other electronic machinery to perform any function that directly or indirectly results in a loss or adversely affects any public revenue or service; or (d) fails to pay any taxes or any fees, levies or charges payable to any public body or effects or obtains any exemption, remission, reduction or abatement from payment of any such taxes, fees, levies or charges.

(2) An ofcer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person- (a) fraudulently makes payment or excessive payment from public revenues for- (i) sub-standard or defective goods; www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 27 (ii) goods not supplied or not supplied in full; or (iii) services not rendered or not adequately rendered; (b) wilfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures; or (c) engages in a project without prior planning.

(3) In this section, public property means real or personal property, including money, of a public body or under the control of, or consigned or due to, a public body.

46.

A person who uses his ofce to improperly confer a benet on himself or anyone else is guilty of an offence.

Abuse of ofce.

47.

(1) A person who deals with property that he believes or has Dealing with suspect reason to believe was acquired in the course of or as a result of corrupt property.

conduct is guilty of an offence.

(2) For the purposes of this section, a person deals with property if the person- (a) holds, receives, conceals or uses the property or causes the property to be used; or (b) enters into a transaction in relation to the property or causes such a transaction to be entered into.

(3) In this section, corrupt conduct means- (a) conduct constituting corruption or economic crime; or (b) conduct that took place before this Act came into operation and which- (i) at the time, constituted an offence; and (ii) if it had taken place after this Act came into operation, would have constituted corruption or economic crime.

47A.

(1) A person who attempts to commit an offence involving Attempts, corruption or an economic crime is guilty of an offence.

conspiracies etc.

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65 Anti-Corruption and Economic Crimes [Rev.

2009 7 of 2007, Sch.

(2) For the purposes of this section, a person attempts to commit an offence of corruption or an economic crime if the person, with the intention of committing the offence, does or omits to do something designed to its fulllment but does not fulll the intention to such an extent as to commit the offence.

(3) A person who conspires with another to commit an offence of corruption or economic crimes is guilty of an offence.

(4) A person who incites another to do any act or make any omission of such a nature that, if that act were done or the omission were made, an offence of corruption or an economic crime would thereby be committed, is guilty of an offence.

Penalty for offence 48.

(1) A person convicted of an offence under this Part shall be under this Part.

liable to- (a) a ne not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both; and (b) an additional mandatory ne if, as a result of the conduct that constituted the offence, the person received a quantiable benet or any other person suffered a quantiable loss.

(2) The mandatory ne referred to in subsection (1)(b) shall be determined as follows- (a) the mandatory ne shall be equal to two times the amount of the benet or loss described in subsection (1)(b); (b) if the conduct that constituted the offence resulted in both a benet and loss described in subsection (1)(b), the mandatory ne shall be equal to two times the sum of the amount of the benet and the amount of the loss.

Custom not a 49.

In Prosecution of an offence under this Part, it shall be no defence.

defence that the receiving, soliciting, giving or offering of any benet is customary in any business, undertaking, ofce, profession or calling.

Impossibility, no 50.

In a prosecution of an offence under this Part that involves a intention, etc.

not a benet that is an inducement or reward for doing an act or making an defence.

omission, it shall not be a defence- (a) that the act or omission was not within a persons power or that the person did not intend to do the act or make the omission; or www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 29 (b) that the act or omission did not occur.

part vI - CompenSatIon and reCovery of Improper BenefItS 51.

A person who does anything that constitutes corruption or Liability for economic crime is liable to anyone who suffers a loss as a result for an compensation.

amount that would be full compensation for the loss suffered.

52.

A person who receives a benet the receipt of which would Liability for improper constitute an offence under section 39, 40 or 43 is liable, for the value benets.

of the benet, to the following persons- (a) if the receipt constitutes an offence under section 39, to the agents principal; (b) if the receipt constitutes an offence under section 40, to the person advised; or (c) if the receipt constitutes an offence under section 43, to the persons benecially entitled to the property.

53.

(1) A person liable for an amount under section 51 or 52 Liability- shall also be liable to pay interest, at the prescribed rate, on the amount miscellaneous payable.

provisions.

(2) Nothing in section 51 or 52 affects any other liability a person may have.

(3) An amount for which a person is liable under section 51 or 52 to a public body may be recovered by the public body or by the Commission on its behalf.

(4) For greater certainty, nothing in the Government Proceedings Cap.

40.

Act prevents the Commission from instituting civil proceedings to recover amounts under subsection (3).

(5) A person is not entitled to any amount under section 51 or 52 in relation to a particular instance of corruption or economic crime if that person was a party to the corruption or economic crime or that person did a related act that also constituted corruption or economic crime.

54.

(1) A court that convicts a person of any corruption or Compensation orders economic crime shall, at the time of conviction or on subsequent on conviction.

application, order the person- www.kenyalaw.org 30 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (a) to pay any amount the person may be liable for under section 51 or 52; and (b) to give to the rightful owner any property acquired in the course of or as a result of the conduct that constituted the corruption or economic crime or an amount equivalent to the value of that property.

(2) If the rightful owner referred to in subsection (1)(b) cannot be determined or if there is no rightful owner, the court shall order that the property or equivalent amount be forfeited to the Government.

(3) In making an order under this section, a court may quantify any amount or may determine how such amount is to be quantied.

(4) An order under this section may be enforced by the person in whose favour it is made as though it were an order made in a civil proceeding.

Forfeiture of 55.

(1) In this section, corrupt conduct means- unexplained assets.

(a) conduct that constitutes corruption or economic crime; or 7 of 2007, Sch.

(b) conduct that took place before this Act came into operation and which- (i) at the time, constituted an offence; and (ii) if it had taken place after this Act came into operation, would have constituted corruption or economic crime.

(2) The Commission may commence proceedings under this section against a person if- (a) after an investigation, the Commission is satised that the person has unexplained assets; and (b) the person has, in the course of the exercise by the Commission of its powers of investigation or otherwise, been afforded a reasonable opportunity to explain the disproportion between the assets concerned and his known legitimate sources of income and the Commission is not satised that an adequate explanation of that disproportion has been given.

(3) Proceedings under this section shall be commenced in the High Court by way of originating summons.

www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 31 (4) In proceedings under this section- (a) the Commission shall adduce evidence that the person has unexplained assets; and (b) the person whose assets are in question shall be afforded the opportunity to cross- examine any witness called and to challenge any evidence adduced by the Commission and, subject to this section, shall have and may exercise the rights usually afforded to a defendant in civil proceedings.

(5) If after the Commission has adduced evidence that the person has unexplained assets the court is satised, on the balance of probabilities, and in light of the evidence so far adduced, that the person concerned does have unexplained assets, it may require the person, by such testimony and other evidence as the court deems sufcient, to satisfy the court that the assets were acquired otherwise than as the result of corrupt conduct.

(6) If, after such explanation, the court is not satised that all of the assets concerned were acquired otherwise than as the result of corrupt conduct, it may order the person to pay to the Government an amount equal to the value of the unexplained assets that the Court is not satised were acquired otherwise than as the result of corrupt conduct.

(7) For the purposes of proceedings under this section, the assets of the person whose assets are in question shall be deemed to include any assets of another person that the court nds- (a) are held in trust for the person whose assets are in question or otherwise on his behalf; or (b) were acquired from the person whose assets are in question as a gift or loan without adequate consideration.

(8) The record of proceedings under this section shall be admissible in evidence in any other proceedings, including any prosecution for corruption or economic crime.

(9) This section shall apply retroactively.

56.

(1) On an ex parte application by the Commission, the High Order preserving Court may make an order prohibiting the transfer or disposal of or other suspect property, etc.

dealing with property on evidence that the property was acquired as a result of corrupt conduct.

www.kenyalaw.org 32 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (2) An order under this section may be made against a person who was involved in the corrupt conduct or against a person who subsequently acquired the property.

(3) An order under this section shall have effect for six months and may be extended by the court on the application of the Commission.

(4) A person served with an order under this section may, within fteen days after being served, apply to the court to discharge or vary the order and the court may, after hearing the parties, discharge or vary the order or dismiss the application.

(5) The court may discharge or vary an order under subsection (4) only if the court is satised, on the balance of probabilities, that the property in respect of which the order is discharged or varied was not acquired as a result of corrupt conduct.

(6) A person who is served with an order under this section and who contravenes it is guilty of an offence and is liable on conviction to a ne not exceeding two million shillings or to imprisonment for a term not exceeding ten years or to both.

(7) In this section, corrupt conduct means- (a) conduct that constitutes corruption or economic crime; or (b) conduct that took place before this Act came into operation and which- (i) at the time, constituted an offence; and (ii) if it had taken place after this Act came into operation, would have constituted corruption or economic crime.

Appointment of 56A.

(1) The Commission may, at any time with leave of the court, receiver.

appoint a receiver for such property as is suspected by the Commission 7 of 2007, Sch.

to have been acquired through corrupt conduct.

(2) The appointment of a receiver under subsection (1) above shall be in writing signed by the Director or Assistant Director.

(3) The receiver shall have powers of management, control and possession of the property for which he is appointed.

(4) The Commission or the receiver shall, at the time of the appointment or soon thereafter, serve a notice on the person who has or who appears to have custody or control of the property, and, where www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 33 the property is required under any written law to be registered, a similar notice shall be served on the respective registrar: Provided that where the property is situated outside Kenya, the notice shall not be necessary but the Commission shall have the power to liaise with foreign governments, government departments and international agencies for the conscation, management, control and repatriation of the property.

(5) A person served with a notice under the foregoing subsection shall not, except by authority of a court order, deal with the property in any manner inconsistent with the instructions of the receiver.

(6) A person who contravenes subsection (5) shall be guilty of an offence and liable to a ne not exceeding two million shillings or to imprisonment for a term not exceeding ten years or to both for a rst offence, and to imprisonment for a term not exceeding ten years without the option of a ne for a subsequent offence in respect of the same property.

(7) For avoidance of doubt, a receiver may be appointed under this section in respect of any kind of property whether tangible or intangible, movable or immovable, and including buildings, income, debts, bank deposits, business concerns, stocks and other properties.

(8) The receiver shall keep proper books of account and give quarterly reports to the Commission, and may pay the costs of receivership out of the property for which he has been appointed.

(9) A person aggrieved by the appointment of a receiver under this section may request the Commission in writing to set aside the appointment in return for an offer of deposit of some reasonable security, or he may apply to the High Court for setting aside or variation of the appointment on the ground that- (a) he has offered to the Commission a reasonable security which has not been accepted by the Commission; or (b) he has in his possession evidence to show that, on a balance of probabilities, he acquired the property otherwise than through crime or civil wrongs.

(10) An application to the High Court under subsection (9) shall be heard inter-parties, and the Commission shall be entitled to cross- examine the applicant and to call evidence in rebuttal.

56B.

(1) In any matter where the Commission is mandated by www.kenyalaw.org 34 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 Out of Court this Act or any other law to institute civil proceedings or applications, it settlement.

shall be lawful for the Commission to issue a notice or letter of demand 7 of 2007, Sch.

to the person intended to be sued, and may, in such notice or letter, inform the person about the claim against him and further inform him that he could settle the claim within a specied time before the ling of court proceedings.

(2) The Commission may negotiate and enter a settlement with any person against whom the Commission intends to bring, or has actually brought, a civil claim or application in court.

(3) The Commission may tender an undertaking in writing not to institute criminal proceedings against a person who- (a) has given a full and true disclosure of all material facts relating to past corrupt conduct and economic crime by himself or others; and (b) has voluntarily paid, deposited or refunded all property he acquired through corruption or economic crime; and (c) has paid for all losses occasioned by his corruption conduct to public property.

(4) A settlement or undertaking under this section shall be registered in court.

part vII - evIdenCe Unexplained assets, 57.

(1) Unexplained assets may be taken by the court as etc.

as corroboration.

corroboration that a person accused of corruption or economic crime received a benet.

(2) For the purposes of this section, the assets of an accused person shall be deemed to include any assets of another person that the court nds- (a) are held in trust for the accused person or otherwise for or on his behalf; or (b) were acquired from the accused person without adequate consideration.

Presumption of 58.

If a person is accused of an offence under Part V an element corruption if act of which is that an act was done corruptly and the accused person is shown.

proved to have done that act the person shall be presumed to have done that act corruptly unless the contrary is proved.

www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 35 59.

(1) In a prosecution for corruption or economic crime or a Certicates to show proceeding under this Act, a certicate of a valuation ofcer as to the value of property, etc.

value of a benet or property is admissible and is proof of that value, unless the contrary is proved.

(2) A court shall presume, in the absence of evidence to the contrary, that a certicate purporting to be the certicate of a valuation ofcer is such a certicate.

(3) In this section, valuation ofcer means a person appointed, employed or authorised by the Commission or the Government to value property and whose appointment, employment or authorisation is published by notice in the Gazette.

60.

For the purposes of any rule or practice requiring the evidence Rule, etc.

relating to of an accomplice to be corroborated, a person shall not be considered accomplices.

an accomplice of a person accused of an offence under Part V only because- (a) the person received, solicited or agreed to receive or solicit a benet from the accused person; or (b) the person gave, offered or agreed to give or offer a benet to the accused person.

61.

(1) In a prosecution for corruption or economic crime or Certicates to show ofce and a proceeding under this Act, a certicate of an ofcer of a body as compensation.

to a persons position with the body or the persons compensation is admissible and is proof of that position or compensation in the absence of evidence to the contrary.

(2) A court shall presume, in the absence of evidence to the contrary, that a certicate purporting to be the certicate of an ofcer of a body is such a certicate.

part vIIa - exeCutIon 61A.

Notwithstanding anything to the contrary in any law, Execution against the where judgment or an order has been given against the Commission Commission.

for payment of money by way of damages or otherwise- 7 of 2007, Sch.

(a) no execution or attachment in the nature thereof shall be issued against the Commission or against the assets, debts or bank deposits of the Commission; (b) the Director shall except if there is an appeal or application www.kenyalaw.org 36 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 pending against the Judgment or order, cause to be paid out of the funds of the Commission provided expressly for such purposes in the annual estimates, such amounts as may be payable under the decree to the person entitled thereto; (c) no property of the Commission shall be seized or taken by any person having, by law, power to attach or distrain property without the previous written permission of the Director.

part vIII - mISCellaneouS Suspension, if 62.

(1) A public ofcer who is charged with corruption or charged with economic crime shall be suspended, at half pay, with effect from the corruption or date of the charge.

economic crime.

(2) A suspended public ofcer who is on half pay shall continue to receive the full amount of any allowances.

(3) The public ofcer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted.

(4) This section does not derogate from any power or requirement under any law under which the public ofcer may be suspended without pay or dismissed.

(5) The following shall apply with respect to a charge in proceedings instituted otherwise than by or under the direction of the Attorney-General- (a) this section does not apply to the charge unless permission is given by the court or the Attorney-General to prosecute or the proceedings are taken over by the Attorney-General; and (b) if permission is given or the proceedings are taken over, the date of the charge shall be deemed, for the purposes of this section, to be the date when the permission is given or the proceedings are taken over.

(6) This section does not apply with respect to an ofce if the Constitution limits or provides for the grounds upon which a holder of the ofce may be removed or the circumstances in which the ofce must be vacated.

(7) This section does not apply with respect to a charge laid before this Act came into operation.

www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 37 63.

(1) A public ofcer who is convicted of corruption or economic Suspension, etc.

crime shall be suspended without pay with effect from the date of the if convicted of conviction pending the outcome of any appeals.

corruption or economic crime.

(2) The public ofcer ceases to be suspended if the conviction is overturned on appeal.

(3) The public ofcer shall be dismissed if- (a) the time period for appealing against the conviction expires without the conviction being appealed; or (b) the conviction is upheld on appeal.

(4) This section does not apply with respect to an ofce if the Constitution limits or provides for the grounds upon which a holder of the ofce may be removed or the circumstances in which the ofce must be vacated.

(5) This section does not apply with respect to a conviction that occurred before this Act came into operation.

64.

(1) A person who is convicted of corruption or economic crime Disqualication shall be disqualied from being elected or appointed as a public ofcer if convicted of for ten years after the conviction.

corruption or economic crime.

(2) This section does not apply with respect to an elected ofce if the Constitution sets out the qualications for the ofce.

(3) This section does not apply with respect to a conviction that occurred before this Act came into operation.

(4) At least once a year the Commission shall cause the names of all persons disqualied under this section to be published in the Gazette.

65.

(1) No action or proceeding, including a disciplinary action, Protection of may be instituted or maintained against a person in respect of- informers.

(a) assistance given by the person to the Commission or an investigator; or (b) a disclosure of information made by the person to the Commission or an investigator.

(2) Subsection (1) does not apply with respect to a statement made by a person who did not believe it to be true.

www.kenyalaw.org 38 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (3) In a prosecution for corruption or economic crime or a proceeding under this Act, no witness shall be required to identify, or provide information that might lead to the identication of, a person who assisted or disclosed information to the Commission or an investigator.

(4) In a prosecution for corruption or economic crime or a proceeding under this Act, the Court shall ensure that information that identies or might lead to the identication of a person who assisted or disclosed information to the Commission or an investigator is removed or concealed from any documents to be produced or inspected in connection with the proceeding.

(5) Subsections (3) and (4) shall not apply to the extent determined by the court to be necessary to ensure that justice is fully done.

Obstructing persons 66.

(1) No person shall- under this Act, etc.

(a) without justication or lawful excuse, obstruct or hinder, or assault or threaten, a person acting under this Act; (b) deceive or knowingly mislead the Commission or a person acting under this Act; (c) destroy, alter, conceal or remove documents, records or evidence that the person believes, or has grounds to believe, may be relevant to an investigation or proceeding under this Act; or (d) make false accusations to the Commission or a person acting under this Act.

(2) A person who contravenes subsection (1) is guilty of an offence and is liable on conviction to a ne not exceeding ve hundred thousand shillings or to imprisonment for a term not exceeding ve years or to both.

Conduct outside 67.

Conduct by a citizen of Kenya that takes place outside Kenya Kenya - offences.

constitutes an offence under this Act if the conduct would constitute an offence under this Act if it took place in Kenya.

Regulations.

68.

The Minister may make regulations generally for the better carrying out of the provisions of this Act.

part Ix - repeal, tranSItIon and amendmentS www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 39 69.

In this Part A- Interpretation.

former Advisory Board means the Advisory Board under the repealed Act; repealed Act means the Prevention of Corruption Act repealed Cap 65.

by section 70.

70.

The Prevention of Corruption Act is repealed.

Repeal of Cap 65.

71.

(1) This section applies with respect to offences or suspected Offences under offences under the repealed Act committed before this Act came into repealed Act.

operation.

(2) This Act, other than Part V, applies, with any necessary modications, with respect to offences described in subsection (1) and, for that purpose, such offences shall be deemed to be corruption or economic crimes.

(3) For greater certainty, this section- (a) does not apply with respect to any act or omission that, at the time it took place, was not an offence; and (b) is not to be construed as authorising the imposition of a penalty that, under section 77 (4) of the Constitution, could not be imposed.

72.

(1) The person who, immediately before the establishment of Temporary Director, the Commission, was the head of the anti-corruption unit of the Kenya etc.

Police Force shall become the temporary Director of the Commission upon the establishment of the Commission.

(2) The temporary Director under subsection (1) shall cease to be the temporary Director upon the appointment of a Director under this Act.

(3) For greater certainty, the temporary Director under subsection (1) shall have and may exercise and perform all the powers and functions of the Director until the Director is appointed and may participate in any deliberations of the Advisory Board for the purposes of section 8 (3).

73.

(1) The conduct of all ongoing operations of the anti- Transfer from anti- corruption unit of the Kenya Police Force, including all ongoing corruption unit of the investigations, shall, on the commencement of this Act, be transferred Kenya Police Force.

to the Commission.

www.kenyalaw.org 40 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (2) All assets of the anti-corruption unit of the Kenya Police Force shall, on the commencement of this Act, become assets of the Commission.

(3) Without limiting the generality of subsection (2), the assets that become assets of the Commission shall include all les and documents, including electronic documents, associated with ongoing or past operations of the anti-corruption unit of the Kenya Police Force, including ongoing or past investigations.

(4) The Kenya Police Force shall render such assistance to the Commission as the Commission requests to facilitate the transfer, under this section, of the operations and assets of the anti-corruption unit of the Kenya Police Force to the Commission.

(5) For greater certainty, this section does not result in the transfer of any staff of the anti-corruption unit of the Kenya Police Force to the Commission but the Commission may receive such staff as it considers advisable on secondment.

Amendment of 74.

Section 42 of the Limitations of Actions Act is amended by section 42 of Cap.

22.

inserting the word or at the end of paragraph (h) and inserting the following new paragraph immediately after paragraph (h)- (i) a proceeding to recover an amount for which a person is liable under section 51 or 52 of the Anti-Corruption and Economic Crimes Act, 2003 or a proceeding under section 55 or 56 of that Act.

FIRST SCHEDULE (s.

8) PROVISIONS RELATING TO THE STAFF OF THE COMMISSION 1.

(1) To be appointed as the Director or as an Assistant Director, Qualications for appointment as Director or Assistant a person must satisfy the following qualications- Director.

(a) the person must be knowledgeable about or experienced in at least one of the following- (i) law; (ii) public administration; (iii) accounting and nancial matters; or (iv) fraud investigation; and (b) the person must be of outstanding honesty and integrity.

www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 41 (2) The Advisory Board shall not recommend a person who is not qualied under this paragraph.

2.

(1) If the ofce of the Director or an Assistant Director becomes Vacancies, acting vacant, the Advisory Board shall, within three months, recommend a Assistant.

person to be appointed to ll the vacancy.

(2) During the illness or absence of an Assistant Director or a vacancy in the ofce of an Assistant Director, the Advisory Board may appoint a member of the staff of the Commission as an acting Assistant Director.

(3) The Advisory Board may at any time revoke an appointment under subparagraph (2) and appoint another member of staff of the Commission as acting Assistant Director.

3.

(1) The term of ofce of the Director or an Assistant Director Term of ofce of shall be ve years: Director or Assistant Director.

Provided that an Assistant Director may be appointed for a term 7 of 2007, Sch.

of four years to avoid having the Assistant Directors term expire on or around the time the Directors term expires.

(2) A person who has held ofce as Director or Assistant Director may be reappointed, but may not serve as the Director for more than two terms or as an Assistant Director for more than two terms.

(3) A director shall, unless his ofce becomes vacant by reason of his death, resignation, or ceasing to hold ofce under paragraph 5, continue in ofce until he is reappointed or replaced by a new director appointed under the Act.

4.

(1) The Director or an Assistant Director may resign by a written Resignation of resignation addressed to the President.

Director or Assistant (2) A resignation is effective upon being received by the President Director.

or by a person authorized by the President to receive it.

5.

(1) The appointment of the Director or an Assistant Director Removal of Director may be terminated only in accordance with this paragraph.

or Assistant Director.

(2) The President, on the recommendation of the Advisory Board, may terminate a persons appointment as the Director or an Assistant Director if the person- (a) contravenes paragraph 6 (1) of this Schedule; www.kenyalaw.org 42 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (b) is adjudged bankrupt; or (c) is convicted of an offence under the Penal Code or this Act or an offence involving dishonesty.

(3) The President may terminate the appointment of the Director or Assistant Director if a tribunal under this paragraph nds that the Director or Assistant Director - (a) is unable to perform the functions of his ofce by reason of a mental or physical inrmity; or (b) was involved in a corrupt transaction.

(4) The Advisory Board may request the Chief Justice to appoint a tribunal if the Advisory Board is of the view that the Director or an Assistant Director- (a) may be unable to perform the functions of his ofce by reason of a mental or physical inrmity; or (b) may have been involved in a corrupt transaction.

(5) The Advisory Board shall give a copy of the request under subparagraph (4) to the President at the same time as the request is made to the Chief Justice and the President may suspend the Director or Assistant Director pending the nal resolution of the matter.

(6) Upon receiving a request under subparagraph (4), the Chief Justice shall forthwith appoint a tribunal of three members, one of whom the Chief Justice shall designate as the chairman.

(7) Each member of the tribunal shall be a person qualied to be appointed as a judge of the High Court or the Court of Appeal.

(8) The tribunal shall conduct an inquiry in accordance with such procedures as it may determine.

(9) The procedures of the tribunal shall be consistent with the rules of natural justice.

(10) Within thirty days after concluding its inquiry, the tribunal shall- (a) publicly announce its nding and reasons; and www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 43 (b) submit a report to the President.

6.

(1) After being appointed, no staff of the Commission, including Restrictions on the Director or an Assistant Director, shall- activities of staff.

(a) be employed in any other work or business; (b) hold any other public ofce; or (c) take any active part in the affairs of any political party or support any candidate for election to a public ofce.

(2) A person who holds a public ofce and is seconded to the Commission does not contravene subparagraph (1) only by virtue of continuing to hold that public ofce as long as the person performs no duties of that public ofce while seconded to the Commission.

7.

(1) The Director shall issue a Code for the Commission Disciplinary code.

providing for the discipline of its staff.

(2) The Code may provide for investigations and for the determination, including by a hearing, of matters that may be in dispute.

(3) The Code may provide for penalties up to and including dismissal and may include provisions for the recovery of costs arising from loss of or damage to property of the Commission.

8.

In addition to any other ground on which, under this Act, Removal of other a member of staff of the Commission (not being the Director or an staff.

Assistant Director), may be removed from ofce, the member may be so removed by the Director on the ground that the member has breached the Code issued under paragraph 7 of this Schedule or on the ground that the Director no longer has condence in the members integrity: Provided that no member of staff shall be removed from ofce under this paragraph unless he has rst been given a reasonable opportunity to show cause why he should not be so removed.

9.

(1) No action or proceeding for compensation or damages shall Protection from be brought against the Director, an Assistant Director, an investigator personal liability.

or any staff of the Commission in respect of anything done or omitted in good faith under this Act.

(2) This paragraph shall not relieve the Commission of any liability.

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65 Anti-Corruption and Economic Crimes [Rev.

2009 SECOND SCHEDULE (s.

22) PROVISIONS RELATING TO MEMBERS OF THE ADVISORY BOARD Appointment of 1.

(1) This paragraph provides for the appointment of a member nominated members.

of the Advisory Board nominated by a body under section 16 (2)(a).

(2) The nominating body shall submit the names of two nominees to the Minister.

(3) The Minister shall submit the names of the nominees to the National Assembly for approval within seven sitting days after receiving them.

(4) The National Assembly shall, within fourteen days after it rst meets after receiving the names of the nominees- (a) consider the nominees and either approve one of the nominees or reject both of them; and (b) notify the Minister as to its approval or rejection under subparagraph (a).

(5) If the National Assembly approves a nominee, the Minister shall, within fourteen days after receiving the notication of the National Assembly, forward the name of the nominee to the President and the President shall, within fourteen days after receiving the name, appoint the nominee as a member of the Advisory Board.

(6) If the National Assembly rejects both nominees submitted by the nominating body, the Minister shall, within fourteen days after receiving the notication of the National Assembly, request the nominating body to submit a new nominee to the Minister and subparagraphs (3), (4), and (5) and this subparagraph apply with necessary modications with respect to that new nominee.

(7) In nominating and approving persons to be members of the Advisory Board, the nominating body and the National Assembly shall have regard to- (a) the honesty and integrity of the person and the persons knowledge and experience; and (b) the importance of representing Kenyas diversity on the Advisory Board.

www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 45 (8) Within seven days after any vacancy arises in the membership of the Advisory Board, the Minister shall request the nominating body to submit nominees under subparagraph (2) and the nominating body shall do so within twenty-one days after being requested to do so.

(9) The following shall apply with respect to the initial appointment of the Advisory Board following the commencement of this Act- (a) each nominating body shall submit its initial nominees within twenty-one days after the commencement of this Act; (b) the Minister shall wait until sufcient nominees are approved to form a quorum before submitting the names of the approved nominees under subparagraph (5); (c) within fteen days after a sufcient number of the members of the Advisory Board are appointed to form a quorum, the Minister shall call a meeting of the Advisory Board for the purposes of nominating the initial Chairman and Vice- chairman.

2.

(1) The term of ofce of each nominated member of the Term of members.

7 of 2007, Sch.

Advisory Board shall be ve years.

(2) A person may not serve more than two terms as a member of the Advisory Board.

(3) A member of the Advisory Board shall, unless his ofce becomes vacant by reason of his death, resignation or ceasing to hold ofce by virtue of paragraph 4, continue in ofce until he is reappointed or replaced by another member appointed under the Act.

3.

(1) A nominated member of the Advisory Board may resign by Resignation.

a written resignation addressed to the President.

(2) A resignation is effective upon being received by the President or by a person authorized by the President to receive it.

4.

The President, on the recommendation of the Advisory Board, Termination of may terminate a persons appointment as a member of the Advisory appointment.

Board only if the person- (a) is unable to perform the functions of his ofce by reason of a mental, or physical inrmity; www.kenyalaw.org 46 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 (b) is adjudged bankrupt; (c) is convicted of an offence under the Penal Code or this Act or an offence involving dishonesty; or (d) is absent from three consecutive meetings of the Advisory Board without reasonable excuse.

Disclosure of 5.

(1) A member of the Advisory Board who has a direct or indirect personal interest.

personal interest in a matter being considered or to be considered by the Advisory Board shall, as soon as reasonably practicable after the relevant facts concerning the matter have come to his knowledge, disclose the nature of his interest to the Advisory Board.

(2) A disclosure of interest in a matter shall be recorded in the minutes of the meeting of the Advisory Board and the member shall not be present while that matter is being dealt with by the Advisory Board and shall not take part in any deliberations or vote relating to the matter.

Allowances 6.

The Commission shall pay the members of the Advisory Board such allowances and expenses as are determined by the Minister in charge of nance in consultation with a committee of the National Assembly designated by the National Assembly for that purpose.

Protection from 7.

(1) No action or proceeding for compensation or damages personal liability.

shall be brought against a member of the Advisory Board or any other person authorized by the Advisory Board, in respect of anything done or omitted in good faith under this Act.

(2) This paragraph shall not relieve the Advisory Board of any liability.

THIRD SCHEDULE (s.

21) PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE ADVISORY BOARD Meetings.

1.

(1) The Advisory Board shall have at least four meetings in every nancial year and not more than four months shall elapse between one meeting and the next meeting.

(2) Meetings shall be convened by the Chairman, or in his absence by the Vice-chairman.

(3) Unless three quarters of the members otherwise agree, at least www.kenyalaw.org Rev.

2009] Anti-Corruption and Economic Crimes CAP.

65 47 fourteen days notice of a meeting shall be given to every member.

(4) A meeting shall be presided over by the Chairman, or in his absence by the Vice-chairman or in both their absences, by a person elected by the Advisory Board at the meeting for that purpose.

2.

A decision of the Advisory Board shall be by a majority of the Voting.

members present and voting and, in the case f an equality of votes, the person presiding at the meeting shall have a second or casting vote.

3.

Minutes of all meetings shall be kept and entered in books Minutes.

kept for that purpose.

www.kenyalaw.org 48 CAP.

65 Anti-Corruption and Economic Crimes [Rev.

2009 [Subsidiary] SUBSIDIARY LEGISLATION L.N.

119/2003.

THE ANTI-CORRUPTION AND ECONOMIC CRIMES REGULATIONS, 2003 Citation and 1.

These Regulations may be cited as the Anti-Corruption and Economic commencement.

Crimes Regulations, 2003 and shall be deemed to have come into force on the nd 2 May, 2003.

Allowed investments.

2.

An investment that is offered to members of the public is prescribed for the purposes of section 42 (4) of the Act.

Interest on 3.

(1) The interest rate prescribed for the purposes of section 53 (1) of compensation, etc.

the Act is twelve percent per year.

(2) For the purpose of subsection 53 (1) of the Act, for each amount for which a person is liable under section 51 or 52 of the Act in relation to a loss suffered or a benet received, interest is payable from the date the loss was suffered or the date the benet was received.

www.kenyalaw.org.