Kenya National Examinations Council Act No 29of 2012 - as Plain Text by MWakili

Kenya Gazette Supplement No.

146 (Acts No.

29) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2012 NAIROBI, 19th October, 2012 CONTENT Act PAGE The Kenya National Examinations Council Act, 2012 1625 ._t ---------- iNATi C, NAL C3UNOIL FOR LAW FrIETV., 1 RECE! - PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 1625 THE KENYA NATIONAL EXAMINATION COUNCIL ACT No.

29 of 2012 Date of Assent: 12th October, 2012 Date of Commencement: 19th October, 2012 ARRANGEMENT OF SECTIONS Sections PART IPRELIMINARY 1Short title.

2Interpretation.

PART HESTABLISHMENT, POWERS AND FUNCTIONS OF THE COUNCIL 3Establishment of the Council.

4Composition of the Council.

5Appointment and Qualifications of Chairperson.

Qualifications of members.

6 7Term of office of Chairperson and members.

8Council may co-opt members.

9 Vacation of office.

10Functions of the Council.

11 Powers of the Council.

12Conduct of business and affairs of the Council.

13 Committees of the Council and delegation.

14Chief Executive Officer.

15Qualifications of Chief Executive Officer.

1626 No.

29 Kenya National Examinations Council 2012 16Removal of Chief Executive Officer.

17Staff of the Council.

18 The Common seal of the Council.

19Protection from personal liability.

20Liability for damages.

PART HIFINANCIAL PROVISIONS 21Funds of the Council.

22Financial year.

23Annual estimates.

24Accounts and audit.

25Investment of funds.

PART IVOATH OF SECRECY, OFFENCES AND PENALTIES 26Oath of secrecy.

27Unauthorised possession of examination paper, material or information.

28Examination malpractices.

29Loss or misuse of examination paper or material.

30Damage or destruction to examination material or facilities.

31Impersonation.

32Copying at an examination.

1627 2012 Kenya Votional Examination.s Council No.

29 33 Possession of offensive material and disturbances at examinations.

34Presentation of forged certificate, etc.

35Counterfeitinz of certificates and diplomas.

36Disclosure of interest in examination or examination paper.

37Request for information.

38Council to keep information confidential.

39 Improper disclosure of information.

40Aiding and abetment of offence.

PART V LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS 41Limitation on right to go on strike.

42Limitation on right to access information.

PART VIMISCELLANEOUS PROVISIONS 43Council may require assistance from State organ or public entity.

44Council ma require assistance from Teachers Service Commission.

45Nullification of examination and investigations.

4olmrosition of penalty on institutions for examinations irregularity.

- thnual report.

-3SRine 1628 2012 No.

29 Kenya National Examinations Council 49Repeal of Cap.

225A.

PART WITRANSITIONAL PROVISIONS 50Former Council to continue for two months.

51Assets and liabilities of former Council.

52Reference to former Council.

53 Proceedings of former Council.

54Annual estimates of former Council.

55Agreements, deeds, etc.

of former Council 56Administrative decisions of former Council.

57Staff eligible for reappointment.

SCHEDULE CONDUCT OF BUSINESS AND AFFAIRS OF THE COUNCIL 1Meetings.

2Disclosure of interest by Council members.

3Execution of instruments.

4--Minutes.

1629 Kenya National Examinations Council No.

29 2012 THE KENYA NATIONAL EXAMINATIONS COUNCIL ACT, 2012 AN ACT of Parliament to provide for the establishment, powers and functions of the Kenya National Examinations Council and the conduct of examinations; to provide for the repeal of the Kenya National Examinations Council Act, and for connected purposes.

ENACTED by the Parliament of Kenya, as follows PART I--PRELIMINARY 1.

This Act may be cited as the Kenya National Short title.

Examinations Council Act, 2012.

2.

In this Act, unless the context otherwise Interpretation.

requires "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to education; "candidate" means a person registered to take an examination conducted by or on behalf of the Council; "certificate" means a document issued by the Council and designated as such showing results obtained by a particular candidate in an examination; "Chief Executive Officer" means the chief executive officer of the Council appointed under section 14; 1630 No.

29 Kenya National Examinations Council 2012 "Council" means the Kenya National Examinations Council established under section 3; "diploma" means a document issued by the Council and designated as such showing results obtained by a particular candidate in an examination; -effective date" means the date on which this Act comes into force; "electronic device" includes a programmable calculator, mobile phone and other device as may be prescribed; "examination" means an examination conducted under this Act by or on behalf of the Council; _ "examinations material", whether in print or electronic form, means (a) an examination paper; (b) notes for the preparation of an examination paper; (c) instructions for the setting up of equipment or the preparation of instruments for an examination; or (d) any other document or material which is intended to form part of an examination paper or to enable an examination paper to be prepared, but does not include examination papers from previous examinations or any other material which is legitimately published in order to assist candidates in any examination; 1631 2012 Kenya National Examinations Council No.

29 "examination paper" includes a question paper, examination instructions or the draft or copy of an examination paper or instructions in respect of an examination which has not been taken, and includes an electronic form thereof; "former Council" means the Kenya National Examinations Council established under the repealed Act; training institution" means an -teacher institution offering training for teachers but does not include a university; "offensive material" means anything capable of causing injury, or temporary or permanent incapacitation of a person.

PART HESTABLISHMENT, POWERS AND FUNCTIONS OF THE COUNCIL 3.

(1) There is established a council to be known Establishment of as the Kenya National Examinations Council.

the Council.

(2) The Council is a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; (c) borrowing money or making 1632 No.

29 Kenya National Examinations Council 2012 investments; (d) entering into contracts; and (e) performing all other acts or things for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate.

(3) The Council shall be the successor to the Council known as the Kenya National Examinations Council existing immediately before the commencement of this Act.

Composition of 4.

The Council shall consist of the Council.

(a) a Chairperson appointed by the President under section 5; (b) the Principal Secretary of the Ministry responsible for matters relating to education or a representative of the Principal Secretary; (c) the officer in charge of quality assurance and standards in the Ministry responsible for matters relating to education; (d) the Director of the Kenya Institute of Curriculum Development; (e) the Secretary of the Teachers Service Commission; (f) the following persons appointed by the 1633 2012 Kenya National Examinations Council No.

29 Cabinet Secretary- (i) one member to represent the interest of persons with disabilities; (ii) one person to represent the post school technical and business training institutions in Kenya, including polytechnics; (iii)one person to represent private sector involved with management of Education as the Cabinet Secretary may determine; (iv)one person to represent any other special interest as the Cabinet Secretary may determine; and (g) the Chief Executive Officer.

5.(1) The Chairperson shall be appointed by the Appointment and President.

Qualifications of Chairperson (2) A person shall be qualified to be appointed as the Chairperson, if the person (a) holds at least a masters degree from a recognised university; (b) has at least fifteen years experience in a senior position in the public service or as a practitioner in a relevant profession or industry; and (c) satisfies the requirements of Chapter Six 1634 No.

29 Kenya National Examination., Council 2012 of the Constitution.

Qualifications of 6.

To be appointed as a member of the Council, members other than an ex-officio member, a person shall (a) possess at least a first degree from a recognised university; (b) have at least ten years experience in a senior position in the public service or as a practitioner in a relevant profession or industry; and (c) satisfy the requirements of Chapter Six of Term of Office of the Constitution.

Chairperson and 7.

The Chairperson and the appointed members members of the Council shall serve for a term of four years, and shall be eligible for re-appointment for one further term.

Council may co- 8.(1) The Council may co-opt not more than opt members two members in order to benefit from any special skills as may be necessary for the better carrying out of the functions of the Council.

(2) A member co-opted under subsection (1) shall (a) have no right to vote on any matter before the Council; (b) serve for such period as the Council may determine.

Vacation of 9.

(1) A member of the Council, other than an ex- office.

officio member, may at any time resign from office, in the case of the Chairperson by notice in writing to the President, and in any other case to the Cabinet 1635 No.

29 Kenya National Examinations Council 2012 Secretary (2) A member of the Council may be removed from office, in the case of the Chairperson by the President, and in any other case by the Cabinet Secretary, if the Chairperson or member, as the case may be- (i) has been absent from three consecutive meetings of the Council; (ii) is convicted of a criminal offence and to sentenced imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings; (iii) is convicted of an offence involving dishonesty or fraud; (iv) is adjudged bankrupt or enters into a composition scheme or arrangement with his or her creditors; by (v) is incapacitated physical or mental illness or is deemed otherwise unfit to discharge his or her duties as a member of the Council; or 1636 2012 No.

29 Kenya National Examinations Council fails to comply with the (vi) provisions of this Act relating to disclosure.

Functions of the 10.(1) The functions of the Council shall be to Council.

(a) set and maintain examination standards, conduct public academic, technical and other national examinations within Kenya at basic and tertiary levels; (b) award certificates or diplomas to candidates in such examinations; such certificates or diplomas, shall not be withheld from the candidate by any person or institution; confirm authenticity of certificates (c) or diplomas issued by the Council upon request by the government, public institutions, learning institutions, employers and other interested parties; (d) issue replacement certificates or diplomas to candidates or diplomas to candidates in such examinations upon acceptable proof of loss of the original (e) undertake research on educational assessment; (f)advise any public institution on the development and use of any system of assessment when requested to do so, and in accordance with such terms and conditions as shall be mutually agreed between the Council and the public institution; 1637 No.

29 Kenva National Examinations Council 2012 international the (g) promote qualifications of recognition conferred by the Council; (h) advise the Government on any policy decision that is relevant to, or has implications on, the functions of the Council or the administration of examinations in Kenya; (i) do anything incidental or conducive to the performance of any of the preceding functions.

(2) In the performance of its functions under subsection (1), the Council shall have powers to (a) make rules regulating the conduct of examinations and for all purposes incidental thereto; (b) make rules regulating the confirmation of examination results and for purposes incidental thereto; (c) make rules regulating the conduct of issuance of replacement certificates or diplomas and for all purposes incidental thereto;" (d) make rules regulating the conduct of issuance of certificates or diplomas and for all purposes incidental thereto; (e) withhold or cancel the results of candidates involved in examination irregularities or malpractices; (0 appoint any - officer responsible for education or training, including heads of 1638 No.

29 Kenya National Examinations Council 2012 education and training institutions to assist in the administration of examination as may be prescribed by the Council in consultation with the Cabinet Secretary; (g) equate certificates issued by accredited foreign examining bodies with the qualifications awarded by the Council; (h) conduct examinations on behalf of foreign states or entities upon request by such states or entities; (i) conduct academic, technical and other examinations outside Kenya on request; (j) offer examination services and other advisory services relevant to examinations to private institutions in Kenya upon request by such institution and on such terms as the Council may determine; (k) invite such body in or outside Kenya, as the Council may consider necessary, to conduct on its behalf, academic, technical and other national examinations within Kenya, or to conduct these examinations jointly with the Council and to award certificates or diplomas to successful candidates in such examinations; (1) co-operate with such bodies, under paragraph (k), in the performance of its functions; (m)advise the bodies invited under paragraph (k) upon the adaptation of examinations necessary in Kenya and to assist any such bodies to conduct such examinations.

Powers of the Council.

11.

The Council shall have all powers necessary for the proper performance of its functions under this 1639 No.

29 Kenya National Examinations Council 2012 Act and in particular, but without prejudice to the over to generality of the foregoing, it shall have p other (a) enter into association with such in bodies or organizations with or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Council is established; (b) offer services to any person, institution or foreign government upon such terms as the Council may from timee to time determine; and (c) undertake any activity necessary for the fulfilment of any of its functions.

business Conduct of r business and 12.

(1) The conduct and regulation o ed in the affairs of the Council.

and affairs of the Council shall be as provi Schedule.

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

Committees of 13.(1)The Council may establish such committees the Council and as it may deem necessary for the performance of its delegation.

functions.

(2) The Council may either generally or in any particular delegate to any committee or to any fficer, employee or agent of the Council, the member, o case, e of any of the powers or the performance of any exercis of the functions of the Council under this Act.

Chief Executive 14.

(1) There shall be a Chief Executive Officer of Officer.

the Council who shall be appointed by the through a competitive recruitment process.

1640 No.

29 Kenya National Eraminations Council 2012 (2) The Chief Executive Officer shall hold office for a period of five years on such terms and conditions of employment as the Council, in consultation with the Salaries and Remuneration Commission may determine, and shall be eligible for re-appointment for one further term.

(3) The Chief Executive Officer shall be an officio ex- member of the Council and shall have no right to vote at any meeting of the Council.

(4) The Chief Executive Officer shall be (a) responsible for the day to day management of the Council; (b) responsible for the affairs and transactions of the Council, the exercise, discharge and performance of its objectives and functions, and the general administration of the Council; (c) the Secretary of the Council.

Qualifications of 15.

Chief Executive A person shall not be appointed the Chief Officer.

Executive Officer unless that person has (a) at least a masters degree, from a recognised university, in education or other field relevant to the mandate of the Council; (b) experience, of at least ten years, in (i) matters pertaining to education, training or research; and (ii) policy formulation and 1641 No.

29 Kenya National Examinations Council procedures of government; and (c) proven leadership ability and integrity, and satisfies the requirements of Chapter Six of the Constitution.

Removal of Chief 16.(1) The Chief Executive Officer may be Executive removed from office by the Council for- Officer.

(a) inability to perform functions of the office arising out of physical or mental incapacity; (b) gross misconduct; (c) bankruptcy; or (d) incompetence.

(2) Before removal under subsection (1), the Chief Executive Officer (a) may be suspended from office by the Council; (b) shall be informed in writing of the reasons for the intended removal; and (c) shall be given an opportunity to put in a defence against any such allegations.

Staff off l 17.

The Council may appoint such officers, agents Counci the and other staff as are necessary for the proper and efficient discharge of its functions under this Act, and upon such terms and conditions of service as the Council may determine.

on s The comm seal (1) The common seal of the Council shall be of the Council.

18.

kept in the custody of the Chief Executive Officer, and shall not be used except upon the order of the 1642 No.

29 Kenya National Examinations- Council Council.

2012 (2) The common seal of the Council, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless the contrary is proved, any necessary order or authorisation by the Council under this section shall be presumed to have been duly given.

(3) The common seal of the Council shall be authenticated by the signature of the Chairperson of the Council and the Chief Executive Officer: Provided that the Council shall, in the absence of either the Chairperson or the Chief Executive Officer, nominate one member of the Council to authenticate the seal of the Council, in any particular matter, on behalf of either the Chairperson or the Chief Executive Officer, as the case may be.

Protection from 19.

personal liability.

No member, officer, agent or staff of the Council shall be personally liable for any act or omission done or omitted in good faith in carrying out any of the functions of the Council under this Act.

Liability for 20.

damages.

The provisions of section 19 shall not relieve the Council of the liability to pay compensation or damages to any person for any injury caused by the exercise of any power conferred by this Act.

PART IIIFINANCIAL PROVISIONS Funds of the Council.

21.(1) The funds of the Council shall consist of (a) such moneys or assets as may accrue to or vest in the Council in the course of the exercise of its powers or the performance 1643 Kenya National Exam inationA Council No.

29 2012 of its functions under this Act; (b) such moneys as may be payable to the Council pursuant to this Act or any other written law; (c) such gifts as may be given to the Council; (d) such moneys as may be appropriated by Parliament for the purposes of the Council; and (e) all moneys from any other source provided or donated to the Council.

(2) All the funds of the Council and the balance at the end of each financial year shall be retained by the Council for the purposes for which the Council is established and shall, for that purpose, establish a reserve account.

22.

The financial year of the Council shall be the Financial year.

period of twelve months commencing on the first day of July and ending on the thirtieth day of June in each year.

23.(1) At least three months before the Annual estimates.

commencement of each financial year, the Chief Executive Officer shall prepare estimates of the revenue and expenditure of the Council for that year.

(2) The annual estimates shall make provision for all estimated expenditure of the Council for the financial year concerned and in particular, the estimates shall provide for the salaries, (a) payment of the 1\l'111 , 1 \(111( 1 11(111: (///////(// )/i 01111(71 2012 allowances and other charges in respect of members and staff of the Council; ( h ) payment of pensions, gratuities and other charges in respect of members and staff of the Council; (c) procurement of goods and services by the Council; (d) proper maintenance of the buildings and grounds of the Council; (e) maintenance, repair and replacement of the equipment and other property of the Council; and (0 creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Council may deem appropriate.

(3) The annual estimates shall be approved by the Council before the commencement of the financial year to which they relate and, once approved, the sum provided in the estimates shall be submitted to the Cabinet Secretary for approval.

(4) No expenditure shall be incurred for the purposes of the Council except in accordance with the I 645 No 29 2012 Kenya National Lkannnanon% Council annual estimates approved under subsection (3), or in given pursuance of an authorisation Secretary , with prior written approval of the Cabine net Secretary and the Principal Secretary to the Treasury.

Act: Mulls and 24.

(1) The Council shall cause to be kept proper dodu books andrecords of accounts of the income.

expenditure.

liabilities and assets of the Council.

(2) Within a period of three months after the end of each financial year.

the Council shall submit to the Auditor-General, the accounts of the Council together with (a) a statement of the cornprehensive income and expenditure of the Council during that year; and (b) the financial position of the Council on the last day of that year.

(3) The accounts of the Council shall be audited of and reported upon in accordance with the provisions No.12 of 2003.

the Public Audit Act, 2003.

Investment of 25.(1) The Council may invest any of its funds in funds securities in which for the time being trustees may by law invest trust funds, or in any other securities or banks which the Treasury may, from time to time, approve for that purpose.

(2) The Council may place on deposit, with such bank as it may determine, any moneys not immediately required for the purpose of the Council.

1 646 No.

29 Kenya National Eaminations Council 2012 PART IVOATH OF SECRECY, OFFENCES AND PENALTIES Oath of secrecy.

26.(1) The Council may require an officer, agent or staff performing the work of the Council or being engaged in the conduct of any examination or the handling of any examination paper or material, to take and subscribe such oath of secrecy as the Council may prescribe.

(2) An officer, agent or staff who, having complied with the provisions of subsection (1), does or omits to do any act in contravention of the oath of secrecy, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years or a fine not exceeding one million shillings, or to both.

Unauthorised possession of 27.(1) A person who, before or during an examination examination, has in his or her possession or under his paper, material or or her control any examination paper or any part information.

thereof, or any material or information purporting to relate to the contents of any paper or material for that examination, without lawful excuse, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding ten years, or a fine not exceeding two million shillings, or to both.

(2) For purposes of proving an offence under subsection (1), it shall not be necessary for the prosecution to prove that the paper, material or information for the examination is real or false.

(3) A person who, negligently or wilfully, assists or causes any examination candidate to obtain or gain unauthorised possession of any examination paper, material or information or any part thereof, commits an offence and is liable, upon conviction, to 1647 No.

29 Kelm., National Examinations Council 2012 imprisonment for a term not exceeding ten years, or a fine not exceeding two million shillings, or to both.

Examination 28.Without limiting the generality of section 27, malpractices a person who before or during an examination, (a) gives an examination paper or material to a candidate or another person without lawful authority; (b) discloses the contents of an examination paper or material to a candidate or another person without lawful authority; (c) makes a change in the original answer script of a candidate without lawful authority; (d) fraudulently replaces the original answer script of a candidate; (e) fraudulently alters the results, work or marks of a candidate; (1) fraudulently alters the examination number, photograph or identification of a candidate; or (g) without lawful authority, alters the records of the Council with regard to an examination or examination results in relation to a candidate, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years, or a fine not exceeding one million shillings, or to both.

Loss or misuse of A person who, having in his or her examination 29.

ro ny paper or material.

possession or under his or her conformation examination paper, material or any ino relating thereto, negligently or wilfully loses such No.

/9 1648 /c'enva National ht-aininaliotis Council 2012 examination paper, material or such information, or uses such examination paper, material or such information in a manner prejudicial to the proper and fair conduct of any examination, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years, or a fine not exceeding one million shillings, or to both.

Damage or 30.

destruction to A person, who wilfully and maliciously examination damages examinations material or facilities or any material or evidence that could have led to a conviction under this facilities.

Act, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years, or a fine not exceeding five million shillings, or to both.

Impersonation.

31.

A person who, for the purpose of an examination - (a) is not registered to take a particular examination but, with intent to impersonate, presents or attempts to present himself or herself to take the part of a candidate; (b) registers for an examination using a false name or identity; or (e) falsely uses a certificate, testimonial, signature, photograph or a document of some other person to represent that other person, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding two years, or a fine not exceeding two million shillings, or to both and shall, in addition to this penalty, be prohibited from taking an examination for a period not exceeding three years immediately after the commission of the offence.

6491 No.

29 Keliva Etalimmiiom Council 2012 (2) A person who is registered to take a particular examination but knowingly allows another person to take that examination on his or her behalf commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding two million shillings and may in addition to this penalty, be prohibited from taking an examination for a period not exceeding three years immediately after the commission of the offence.

32.

A candidate who, during an examination Copying at an examination.

(a) copies from the script of another candidate; with another (b) communicates candidate, with intent to assist that candidate answer an examination question; with another (c) communicates candidate with intent to seek the assistance of that candidate in an examination answering question; (d) is in possession of a textbook, electronic device or material in the examination room without lawful authority; (e) copies from notes, electronic device or a textbook without lawful authority; or (0 receives external assistance without lawful authority, shall be disqualified from taking the entire 1650 No.

29 Kenya National Examinations Council 2012 examination and if the person has already taken a paper at the examination, the paper shall be cancelled by the Council and may be prohibited from taking an examination for a period not exceeding three years immediately after the commission of the offence.

Possession of 33.(l) A person who, at or near an examination offensive material venue or any other place appointed for an and disturbances examination at examinations (a) has in his or her possession any offensive weapon or other material or uses any offensive weapon or other material on any other person; or (b) acts or incites any other person to act in a disorderly manner, for the purpose of disrupting the conduct of an examination or of harming, intimidating, assaulting or obstructing a candidate or any person involved in the conduct of the examination, commits an offence and is liable on conviction to imprisonment for a term not exceeding three years, or a fine not exceeding five hundred thousand shillings, or to both.

(2) If the offender under this section is a candidate, the Council shall, in addition to the penalty prescribed in subsection (1), cancel the entire results of the candidate and prohibit the candidate from taking an examination for a period of not exceeding three years immediately after the commission of the offence.

Presentation of 34.

A person who presents forged certificate, etc.

(a) a forged certificate or diploma, result slips or statement of results; or 165! Kenya A'ational Examinations Council No.

29 2012 someone else's certificate or diploma, (b) result slips or statement of results purporting it to be hers or his, to a prospective employer or to an institution of learning with intent to gain employment or admission commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding two years, or a fine not exceeding one million shillings, or to both.

35.

A person who counterfeits, for commercial Counterfeiting of purposes, a certificate or diploma issued by the certificates and Council commits an offence and is liable, upon diplomas conviction, to imprisonment for a term not exceeding ten years, or a fine not exceeding ten million shillings, or to both.

36.(l) If a person engaged in the conduct of Disclosure of examinations or performing work connected with interest in examinations is directly or indirectly interested in a examination or examination private capacity in an examination or in any paper.

examination paper or information relating thereto or if the spouse, a child or parent of such person is a candidate in such examination, that person shall, as soon as practicable before the commencement of his or her duties in respect of such examination, disclose such interest to the Council or its nominee and he or she shall, unless the Council otherwise directs, cease to perform such duties.

(2) A person who contcavenes the provisions of subsection (1) shall (a) if the person is a staff of the Council, be subject to the Council's disciplinary process; or 1652 No.

29 Kenya National Exantination.s Council 2012 (b) if the person is an independent contractor, be liable to have the contract with the Council vitiated.

Request for 37.

(1) The Chief Executive Officer, or an officer information.

deputed in that behalf by the Chief Executive Officer, may, in writing, request any person to furnish the Council with such information or to produce such documents or records as he or she deems necessary and relevant for the performance of the functions of the Council.

(2) A person who (a) refuses or fails without reasonable cause, to comply with a request under subsection (1); or (b) in furnishing such information, makes a statement which he or she knows to be false, commits an offence and is liable, on conviction, to a fine not exceeding thirty thousand shillings, or to imprisonment for a term not exceeding six months, or to both.

Council to keep 38.

The Council shall keep information acquired information under section 37 for its purposes confidential, and confidential.

shall disclose such information only to the extent it considers necessary for the proper performance of its functions.

Improper 39.

(1) No officer, agent or staff of the Council disclosure of shall disclose information acquired under this Act information.

except (a) in the course of his or her duties under this Act; or 1653 Kenya National Examinations Council No.

29 2012 (b) with the written consent of the Council.

(2) A person who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.

40.

A person who aids, abets, induces, incites or Aiding and does an act in a manner that facilitates the abetment of offence.

commission of an offence under this Act, commits an offence and is liable, upon conviction, to the penalty prescribed under the respective section in relation to that offence.

PART VLIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS 41.

(1) The right to go on strike guaranteed Limitation on under Article 41(2)(d) of the Constitution is hereby right to go on strike limited under Article 24 of the Constitution only to the nature and extent contemplated under subsection (2).

(2) No person engaged in the management, organisation or administration of any national examination may go on strike during an examination period if to do so would, in the opinion of the Council,- (a) compromise the integrity of such examinations; information security (b) compromise associated with such examination; (c) compromise the rights and fundamental freedoms of other persons engaged in 1651 No.

29 Kenya ,Vational Examinations Council 2012 such examinations; or (d) compromise the go.' order in the conduct of such exam ations.

[mutation on right to access 42.(l) The right to access to information ormation.

guaranteed under Article 35 of the Constitution is hereby limited under Article 24 of the Constitution to the nature and extent contemplated under subsection (2).

(2) The Council, being a public entity shall be under no obligation contemplated under Article 35 of the Constitution to give such information as would, in the opinion of the Council,- (a) compromise the integrity of any examination administered Council: by the (b) compromise the examination process; or (c) compromise the right to privacy of any individual.

PART VI- MISCELLANEOUS PROVISIONS Council may 43.(1) The Council may require any State organ require assistance from State organ or public entity to provide such facilities and services or public entity of its employees as may be necessary to assist the Council in performing its functions or exercising its powers under this Act, and the State organ or the public entity shall provide accordingly.

(2) Any misconduct by an employee of any such State organ or public entity, during the service of the Council, shall be punishable by the State organ or the 1655 Council No.

29 Kenya National Examination.s.

2012 public entity, as the case may be.

44.(1) The Council may require the Teachers Council may Service Commission to provide such services of require assistance from Teachers persons employed or registered as teachers by the Service Commission as may be necessary to assist in the Commission.

administration of examinations op temporary basis.

(2) The Council and the Teachers Service Commission shall develop a common code of conduct to regulate the conduct of persons employed under subsection (1).

(3) Any infringement of the code of conduct by a person employed under subsection (1) shall be punishable by the Teachers Service Commission.

45.

(1) Where the Council is satisfied that there Nullification of has been an irregularity in the course of any examination and examination, the Council shall suspend or nullify such Investigations.

examination or any part thereof.

(2) Where the Council is satisfied that there is reasonable cause to believe that the examination results of any candidate have been obtained by irregular means, the Council shall nullify the examination results of such candidate.

(3) In the exercise of its powers under this section, the Council may conduct such investigations as it may deem necessary, and during such investigations, the Council shall withhold the examination results of any candidate pending conclusion of the investigations.

(4) In the course of investigations under this section, the Council may call for such information or 1656 2012 No.

29 Kenya National Examincaion.s Council the production of such documents as the Council may require, and within such period, in such place and from such person as the Council may determine, to assist in the investigations.

Imposition of 46.

Where more than two-thirds of the candidates penalty on at an institution which is registered to offer institutions for examinations are found to have acted contrary to the examinations irregularity.

provisions of this Act, either before, during or after the examination, the Council shall prohibit such institution from organizing, supervising or acting as an agent of the Council in the conduct of an examination for a period determined by the Council.

Annual report.

47.(1) The Council shall, within three months after the end of each financial year, prepare and submit to the Cabinet Secretary a report on its operations and activities for the immediately preceding financial year.

(2) Without limiting what may be included in the annual report, the annual report shall include (a) the performance of the Council in the execution of its functions; (b) the audited financial report of the Council; and (c) such other information as the Cabinet Secretary may direct.

(3) The Cabinet Secretary shall cause the report to be laid before the National Assembly as soon as is reasonably practicable after the National Assembly next sits after the Cabinet Secretary has received the report.

1657 2012 Kenya National Examinations Council No.

29 48.

(1) The Council may make rules generally for Rules.

the better carrying into effect the provisions of this Act.

(2) Without limiting the generality of the foregoing, rules made under this Act may provide for the following (a) conduct of examinations; (b) the nature and extent of examinations irregularity and the penalty thereof; (c) the determination and management of examinations; certificates including of (d) equation prescribing what examinations may be equated by the Council; (e) the terms and conditions of service, including pension and other retirement benefits of the staff of the Council; (f) measures for the discipline of the staff of the Council; (g) the financial procedures of the Council; (h) examination fees and other charges payable to the Council; (i) prescribe any other matter which requires to be prescribed under this Act.

49.

The Kenya National Examinations Council Repeal of Act is repealed.

Cap.

225A 1658 2012 Kenya National Examination., Council No.

29 PART Via-TRANSITIONAL PROVISIONS Former Council 50.(1) The former Council shall continue in to continue for office for a period of not more than two months from two months the effective date as appointments are made to the Council and the former Council shall for all intents and purposes be deemed the Council appointed under this Act.

(2) Despite subparagraph (1), the former Council shall not, while in office by virtue of subsection (1).

make any appointments to any office of the Council under this Act.

Assets and 51.

(1) On the effective date, all the funds.

assets liabilities of and other property, both movable and immovable.

former Council.

which immediately before such date were vested in the former Council shall, by virtue of this section vest in the Council.

(2) On the effective date.

all rights.

powers and liabilities, which immediately before such date were vested in, imposed on or enforceable against the former Council shall.

by virtue of this section.

be vested in, imposed on or enforceable against the Council.

Reference to 52.

Any reference in any written law or in am former Council.

document or instrument to the former Council shall.

on and after the effective date, be construed to he a reference to the Council.

Proceedings of 53.

Any proceedings pending immediately before former Council_ the effective date to which the former Council was a party shall be continued as if the Council was a part\ thereto in lieu of the former Council.

1659 2012 Kenya National Examinalions Council No.

29 54.(1)The annual estiniates of the former Council Annual esiim.ttes for the financial year in which the effective date ul loimer the annual estimates of council occurs shall be deemed to be the Council for the remainder of that financial year.

(2) Any such estimates under subsection (1) may be varied by the Council in such manner as the Cabinet Secretary may approve.

55.

Every agreement, deed, bond or other Agreements.

instrument to which the former Council was a party or deeds, etc.

of which affected the former Council and whether or not Ibrmer Council.

of such a nature that the rights, liabilities and obligations thereunder could be assigned, shall have effect as if the Council were a party thereto or affected thereby instead of the former Council, and as if for every reference therein to the former Council they shall be substituted in respect of anything to be done on or after the effective date.

56.

The administrative decisions made by the Administrative former Council or by the Minister, as the case may be, decisions of which are in force immediately before the effective former Council.

date shall, on or after such date, have force as if they were directions made by the Council or the Cabinet Secretary under this Act.

57.

(1) Any staff or officer, including the Chief Staff eligible for Executive Officer, of the former Council immediately reappointment.

before the effective date shall, on that date become a staff or officer of the Council, or the Chief Executive Officer, as the case may be for their unexpired term, if any.

(2) Where a staff or officer of the Council, or the Chief Executive Officer has served their term as contemplated under subsection (1), such staff, officer or the Chief Executive Officer, as the case may be, shall be eligible for reappointment under this Act.

1 660 Kenya National Examinations Council 2012 No.

29 SCHEDULE s.

12 CONDUCT OF BUSINESS AND AFFAIRS OF THE COUNCIL Meetings.

I.(1) The Council shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.

(2) Notwithstanding the provisions of subparagraph (1), the Chairperson may, and upon requisition in writing by at least six members shall, convene a special meeting of the Council at any time for the transaction of the business of the Council.

(3) Unless three quarters of the total members of the Council otherwise agree, at least fourteen days' written notice of every meeting of the Council shall be given to every member of the Council.

(4) The quorum for the conduct of the business of the Council shall be seven members including the Chairperson or the person presiding.

(5) The Chairperson shall preside at every meeting of the Council at which he or she is present but, in his or her absence, the members present shall elect one of their members to preside, who shall, with respect to that meeting and the business transacted there at, have all the powers of the Chairperson.

(6) Unless a unanimous decision is reached, a decision on any matter before the Council shall be by a majority of votes of the members present and voting and, in the case of an equality of votes, the Chairperson or the person presiding shall have a 1661 2012 Kenya National Examinations Council No.

29 casting vote.

(7) Subject to subparagraph (4), no proceedings of the Council shall be invalid by reason only of a vacancy among the members thereof.

2.

(1) If any member of the Council is directly or Disclosure of indirectly interested in any contract, proposed contract interest by or other matter before the Council, and is present at a Council meeting of the Council at which the contract, proposed members.

contract or the matter is the subject of consideration, that member shall, at the meeting and as soon as practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions with respect to the contract or the matter, or be counted in the quorum of the meeting during consideration of the same: Provided that, if the majority of the members present are of the opinion that the experience or expertise of such member is vital to the deliberations of the meeting, the Council may permit the member to participate in the deliberations subject to such restrictions as it may impose but such member shall not have the right to vote on the matter in question.

(2) A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which it is made.

(3) A member of the Council who contravenes subparagraph (1) commits an offence and is liable to imprisonment for a term not exceeding six months, or to a fine not exceeding one hundred thousand shillings, or to both.

3.

Any contract or instrument which, if entered Execution of into or executed by a person not being a body instruments.

1662 No.

29 Kenya National Examination.s.

Council 2012 corporate, would not require to be under seal, may be entered into or executed on behalf of the Council by any person generally or specially authorized by the Council for that purpose.

Minutes.

4.

The Council shall cause minutes of all resolutions and proceedings of meetings of the Council to be entered in books kept for that purpose.

.