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2719231 FAX 2712694

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SPECIAL ISSUE

Kenya Gazette Supplement No. 143 (Acts No. 28)

REPUBLIC OF KENYA .

KENYA GAZETTE SUPPLEMENT

ACTS, 2012

NAIROBI, 5th October, 2012

CONTENT

Act—

PAGE

The National Intelligence Service Act, 2012

1543

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI

1543

THE NATIONAL INTELLIGENCE SERVICE ACT

No. 28 of 2012

Date of Assent: 27th August, 2012

Date of Commencement: 5th October, 2012

ARRANGEMENT OF SECTIONS

Section

PART I— PRELIMINARY PROVISIONS

1—
Short title.

2—
Interpretation.

3—
Guiding principles.

PART II — COMPOSITION, FUNCTIONS,

POWERS AND ADMINISTRATION OF THE SERVICE

4—
Composition of the Service.

5—
Functions of Service.

6—
Powers of the Service.

7—
Director-General.

8—
Qualifications 'of the Director-General.

9—
Functions and powers of the Director-General.

10—
Tenure of office.

11—
Vacancy.

12—
Temporary incapacity.

13—
Remuneration and benefits.

14—
Divisions of the Service.

15—
Directors.

16 — Other members of the Service.

17— Security screening of members of the Service.

18 — Functions and powers of members of the Service.

19 — Oaths and affirmations.

20 — Certificate of appointment.

21— Scheme of service.

22 — Pension scheme and other benefits.

23 — Disdplinary Code.

24 — Code of conduct and ethics.

25— Information to members of the Service.

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26— Mechanism for determination of grievances.

PART III
—
CIVILIAN AUTHORITY

27—Effective civilian authority.
28—Functions of Cabinet Secretary.
29—Functions of the National Security Council.

30

Compliance with Article 59(2)(d) of the Constitution.

PART IV — LIMITATION OF RIGHTS AND FUNDAMENTAL
FREEDOMS

31 — Rights and fundamental freedoms.

32 — Conditions for limitation of rights and fundamental freedoms.

33— Limitation of freedom of expression.

34 — Limitation of political rights.

35 — Limitation of freedom of movement and residence.

36 — Limitation of right to privacy.

37 — Limitation of right to access information.

3R
–
Limitation of freedom of association.

— Limitation of right to assembly, demonstrate, picket and petition.

— Limitation of right to labour relations.
41 — Limitation to economic and social rights.

PART V
—
WARRANTS

42 — Application for a warrant by the Director-General.
43 — Issuance of a warrant.
44— Assistance in execution of a warrant.
45 — Effects of a warrant.

46— Period of validity and extension of a warrant.

47 — Oral application for a warrant.

48 — Extreme emergency.

49 — Director-General to make application or notification.

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50—
Appeal.

PART VI – OFFENCES

51—
Prohibition against torture or cruel treatment

52—
Prohibition of certain conduct of members of the Service.

53 — Desertion.

54—
Surrender of Service property on exit.

55—
Prohibition of false representations as to' association with Service.

56 — Offences in connection with members of the Service.

57—
Prohibition of disclosure of identity.

58—
Prohibition of access to premises of the Service.

59—
Prohibition of unauthorized access and retention of information.

60—
Interfering with the Director-General or members of the Service.
61—Prohibition of unauthorized disclosure of information.
62— Attempts, etc.

63—Prohibited communication by former members.

PART VII – OVERSIGHT BODIES

64 — The National Intelligence Service Council.

65 — Parliamentary Oversight.

66 — The Intelligence Service Complaints Board.

67 — Powers and functions of the Board.

68— Proceedings findings etc.

69 — Funds of the Board.

PART VIII—FINANCIAL PROVISIONS

70—
Funds of the Service.

71—
Accounts and audit.

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PART IX – MISCELLANEOUS PROVISIONS
72— Protection of classified information, records, etc.
73— Protection of Director-General and members of service for acts done

in good faith.

74—
Duty to co-operate.

75—
General penalty.

76—
Extraterritorial application of the Act.

77—
Annual report.

78—
Regulations generally.

79—
Regulations by the Council.

80 — Regulations by the Cabinet Secretary.

81— Transitional and saving provisions.

82—Repeal of No.11 of 1998.

SCHEDULES

FIRST SCHEDULE — USE OF FIREARMS

SECOND SCHEDULE — TRIBUNAL ON THE REMOVAL FROM OFFICE

OF THE DIRECTOR-GENERAL

THIRD SCHEDULE

— OATHS OR AFFIRMATIONS

FOURTH SCHEDULE — CONDUCT OF BUSINESS AND AFFAIRS OF

THE NATIONAL INTELLIGENCE SERVICE

COUNCIL

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28

THE NATIONAL INTELLIGENCE SERVICE

ACT, 2012

AN ACT of Parliament to provide for the functions,

organization and administration of the

National Intelligence Service pursuant to
Article 239(6) of the Constitution; to give

effect to Article 242(2) and other relevant

provisions of the Constitution; to provide for
the establishment of oversight bodies and for

connected purposes

ENACTED
by the Parliament of Kenya, as follows—

PART I
–
PRELIMINARY

1.
This Act may be cited as the National

Short title.

Intelligence Service Act, 2012.

2.(1)
In this Act, unless the context otherwise

Interpretation.

requires—

"activities of foreign interference" means activities

relating to the Republic that are carried out by or on

behalf of, or directed or financed by or undertaken in

collaboration with a foreign power, being activities

that—

(a) are clandestine or deceptive and-

(i) are carried on for intelligence

purposes;

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(ii)
are carried on for the purpose of

affecting economic, social, political

or governmental processes; or

(iii)
detrimental to national security; or
(b) involve a threat to any person;

"Board"

means the

Intelligence

Service

Complaints Board established under section 66;

"Cabinet Secretary" means the Cabinet Secretary

for the time being responsible for matters relating to

national intelligence;

"classified information" means information of a
particular security classification, whose unauthorized

disclosure would prejudice national security;

"Council" means the National Intelligence Service

Council established under section 64;

"counter-intelligence"

means

information

gathered and activities conducted to impede or

neutralize the intentions and activities of foreign

powers, counter subversion, sabotage, espionage or any

hostile activity aimed at or against the people,

institutions, installations, processes or resources of the

Republic;

"departmental intelligence" means information

which relates to any power, duty or function concerning

the security of Kenya which has been entrusted to a

State Department or Agency under any law and which

may be required by that State Department or Agency in

the exercise of powers, duties or functions under this

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Act;

"Director" means a director of a division of the

Service appointed under section 15;

"Director-General" means the Director-General

of the Service, appointed under section 7;

"domestic intelligence" means intelligence on an

internal threat or potential threat to national security or

opportunities relevant for the protection and promotion

of national security and national interests;

"external intelligence" means intelligence on

any external threat or potential threat to national

security, capabilities, intentions and activities of foreign

powers and intelligence regarding opportunities relevant

to the protection and promotion of national security and

national interests;

"foreign power" means—

(a)
a foreign government;

(b)
a foreign organization;

(c)
a foreign person; or

(d)
an entity

that is directed or controlled 'by a foreign government,

foreign organization or foreign person;

•

"intelligence" means information which has been

collated, evaluated and analyzed and which is relevant

to a government's formulation or implementation of

policy in relation to any internal or external threat or

potential threat to national security as well as

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opportunities relevant to the protection and promotion

of national security and national interests;

"monitor" means to intercept, listen to, record or

copy using any device;

"national security" has the meaning assigned to it

under Article 238 (1) of the Constitution;

"National Security Council" means the National

Security Council established by Article 240(1) of the

Constitution;

"member of the service" means a person

employed by the Service whether on temporary or

permanent terms and includes the Directors;

"paramilitary

activities"

means

activities

involving the use of an armed unit or other armed group

that is not part of a country's official defence or law

enforcement forces;

"person" has the meaning assigned to it under

Article 260 of the Constitution;

"public officer" has the meaning assigned to it

under Article 260 of the *Constitution;

"Public Service Commission" means the Public
Service Commission established by Article 233 of the

Constitution;

"Republic" has the meaning assigned to it by

Article 260 of the Constitution;

"security clearance" means an authorization

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entitling a person to have access to • classified

information;

"Salaries and Remuneration Commission" means

the Salaries and Remuneration Commission established

by Article 230 of the Constitution;

"security intelligence" means information other

than counter intelligence which relates to or may be

relevant to the assessment of any internal or external

threat or potential threat to national security and

includes measures and strategies aimed at impeding or

neutralizing such threat or potential threat;

"security vetting" means a systematic procedure

used to examine and appraise a person to determine his

or her suitability, loyalty and eligibility based on

security competencies and considerations;

"serious crime" includes organized crime,

terrorism, human trafficking, drug trafficking and

money laundering;

"Service" means the National Intelligence

Service established by Article 242(1) of the

Constitution;

"State office" has the meaning assigned to it by

Article 260 of the Constitution;

"threat" means—

(a) any activity relating to espionage,

sabotage, subversion, terrorism,

organized crime, or intention to commit

any such activity which is or may be

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directed against, or detrimental to the

integrity, sovereignty, economic well-

being or other national interests of

Kenya and includes any other activity

performed in conjunction with any

activity relating to espionage, sabotage,

organized crime, terrorism or

subversion;

(b)
any activity directed at undermining, or

directed at or intended to bring about

the destruction or to overthrow by

unlawful means of the constitutionally

established system of government in the

Republic;

(c)
any act or threat of violence or unlawful

harm that is directed at or intended to

achieve, bring about or promote any

constitutional,

political,

industrial,

social or economic objective or change

in Kenya and includes any conspiracy,

incitement or attempt to commit any

such act or threat; and

(d)
any action or intention of a foreign

power within or outside Kenya that is

detrimental
to
national security and is

clandestine or deceptive or involves a

threat to the well-being of the Republic
.

and its citizens or any other person

lawfully resident in Kenya,

but does not include any lawful advocacy, protest or

dissent unless carried out in conjunction with any of the

activities referred to in paragraphs (a) to (d);

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"vettable position" means a State office, public

office or position in either level of government

requiring the holder of the position to have, in the

performance of his or her official duties, access to

sensitive or classified information or any other position

as may be required under any written law.

(2) Despite subsection (1), until after the first

general elections under the Constitution, references in

this Act to the expression "Cabinet Secretary"

"Principal Secretary" or "State department" shall be

construed to mean "Minister" "Permanent Secretary"

and "Ministry" respectively.

3.(1) The Service shall, in fulfilling its mandate,

observe and uphold the Bill of Rights, values and

principles of governance under Article 10(2), the values

and principles of public service under Article 232(1) and

the principles of national security in Article 238(2) of

the Constitution and shall within the Service—

(a)
strive to achieve the highest standards of

professionalism and discipline amongst its

members;

(b)
prevent corruption and promote and practice

transparency and accountability;

(c)
comply with the constitutional standards of

human rights and fundamental freedoms;

(d)
train its staff to the highest possible standards

of competence and integrity and to respect

rights and fundamental freedoms and dignity;

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Guiding

principles.

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(e) em
–
are that recruitment to the Service reflects

the diversity of the Kenyan people in equitable

proportions.

(2) The powers and functions of the Service are to

be exercised and performed only in the interests of

national security, Kenya's foreign relations or national

economic well-being.

PART II – COMPOSITION, FUNCTIONS,
POWERS AND ADMINISTRATION OF THE

SERVICE

Composition uf

4. (1)
The National Intelligence Service

the Service.

established under Article 242(1) of the Constitution

shall be a disciplined civilian service.

(2) The Service shall consist of—

(a)
the Director-General appointed

under section 7;

(b)
the Directors appointed under

section 15; and

(c)
such other members of the

Service appointed under section

16.

(3) The Service shall consist of such maximum

number of members as shall be determined from time to

time by the National Security Council in consultation

with the Director-General.

(4) In appointing a person as the Director-

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General, the President and the National Assembly, shall

observe the provisions of Article 73(2) (a) of the

Constitution.

(5) In appointing persons as members of the

Service, the Director-General and the Council shall

ensure that the composition of the Service meets the

gender requirement under Article 27 of the Constitution

and shall observe the principle of regional balance and

ethnic diversity of the people of Kenya.

(6) The Director-General shall formulate and

adopt administrative measures and affirmative action

programs to ensure the realization of Article 27 of the

Constitution.

5.
(1) The Service is responsible for security

intelligence and counter intelligence to enhance national

security in accordance with the Constitution and shall—

(a)
gather, collect, analyse and transmit or share

with the relevant State agencies, security

intelligence and counter intelligence;

(b)
detect and identify threats or potential threats to

national security;

(c)
advise the President and Government of any

threat or potential threat to national security;

(d)
safeguard and promote national security and

national interests within and outside Kenya;

(e)
gather, evaluate and transmit departmental

intelligence at the request of any State

department or organ, agency or public entity;

Functions of the

Service.

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(f) regulate, in co-operation with any State

department or agency, the flow of security

intelligence between the Service and that State

department or agency;

(g) undertake to provide a confidential security

report —

for persons seeking to hold a vettable

position;

(ii)
for persons seeking to be registered as a

citizen of Kenya;

(iii)
for

foreign

institutions

seeking

documents or seeking to undertake any

activity in the Republic which may have

a bearing on national security; or

(iv)
as may be required under any written

law;

(h) carry out protective and preventive security

functions within' State departments, agencies,

facilities and diplomatic missions;

(i) safeguard information systems and processes

within State departments or agencies;

(j) support and aid law enforcement agencies in

detecting and preventing serious crimes and

other threats to national security;

(k) commission research relevant to the protection

and promotion of national security;

(i)

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(1) make recommendations to the National Security

Council on policies concerning security

intelligence;

(m)make recommendations to the President,

National Security Council and the Cabinet

Secretary on policies concerning security

measures which need to be taken by a State

department or agency; and

(n) obtain, in accordance with the Constitution, this

Act or any other written law, intelligence about

the activities of foreign interference and

capabilities, intentions or activities of people or

organizations outside Kenya;

(o)
liaise with intelligence or security services,

agencies or other authorities in other countries;

(p)
co-operate with and assist other national security

organs or agencies in the exercise of their

powers and discharge of their functions;

(q)
provide material support, advice and assistance

to State offices, State departments and public

entities on matters relating to the security and

integrity of information that is processed, stored

or communicated by electronic or similar means;

(r)
to advise county governments on appropriate

security and intelligence matters; and

(s) subject to the provisions of the Constitution and

any other written law, perform such other duties

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and functions as may, from time to time, be

determined by the President to be in the national

interest.

(2) The provisions of subsection (1) shall not be

construed as—

(a)
depriving any person or authority any

power, duty or function conferred

upon that person or authority under

the Constitution or any other written

law; or

(b)
limiting the performance of an

intelligence related function by a

State organ, department or agency.

(3) Unless otherwise provided for under this Act,

the Service shall not —

(a) carry out police functions;

(b) undertake paramilitary activities;

(c)
commit an act of violence against a

person; or

(d)
undertake any activity for the purpose
of

furthering the interests of a political

party or political. organisation whether

within or outside Kenya.

(4) Subsection (3) does not prevent—

(a) the provision of firearms or training in

the use of firearms in accordance with

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First Schedule; or

(b) the Service from obtaining intelligence

and communicating any such intelligence

that is relevant to serious crime to the

appropriate law enforcement authorities.

(5) In the performance of its functions and

exercise of its powers, the Service shall not—

(a)
act in a partisan manner;

(b)
further the interest of any political

party or cause; or

(c)' prejudice a political interest or

political cause that is legitimate under

the Constitution.

(6) A member of the Service who contravenes

subsections (3) and (5) commits an offence and shall on

conviction, be. liable to a fine not exceeding five million

shillings or imprisonment for a term not exceeding ten

years or to both.

6.
(1) The Service shall have all the powers
necessary or expedient for the performance of its

functions under the Constitution, this Act or any other

written law.

(2) Without prejudice to the generality of

subsection (1), the Service shall have the power to—

(a) investigate, gather, collate, correlate,

evaluate, interpret, disseminate and

store information which is relevant in

Powers of the

Service.

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the performance of its functions.

under this Act, whether within or

outside Kenya;

(b)
co-operate with or enter into

arrangements with any person, body,

organization or authority for the

performance of its functions under

this Act;

(c)
monitor and record electromagnetic

emissions, acoustic emissions and

other emissions subject to section 42;

and

(d)
take steps and measures to safeguard

and promote national interests.

(3) The powers referred to in subsection (1) may

be exercised—

(a)
for the purpose of detecting and

identifying any threat or potential

threat to national security;

(b)
for the purpose of safeguarding and

promoting national security and

national interests; or

(c)
for the purpose of ensuring the

enjoyment of the rights and

fundamental freedoms by an

individual in so far as they do not

prejudice the rights and fundamental

freedoms of others.

(4) A member of the Service who exercises

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powers contrary to the provisions of this section

commits an offence and shall on conviction be liable, to

a fine not exceeding five million shillings or to

imprisonment for a term not exceeding ten years or to

both.

7. (1) There shall be a Director-General of the

Service who shall, with the approval of the National

Assembly, be appointed by the President.

(2) The President shall nominate a person for

appointment as the Director-General and submit the

name of the nominee to the National Assembly.

(3) The National Assembly shall, within fourteen

days after it first meets after receiving the names of the

nominee —

(a)
consider the suitability of the nominee;

(b)
either approve or reject the nominee for

appOintment; and

(c)
the Speaker shall notify the President of the

decision of the National Assembly.

(4) If the National Assembly approves the

nominee, the President shall, within seven days after

receiving the notification to that effect, appoint the

nominee as the Director-General.

(5) If the National Assembly rejects a nominee

submitted by the President, the National Assembly shall

request the President to submit a new nominee and the

provisions of this section shall apply with necessary

modifications with respect to the new nominee.

Director-

General.

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(6) If, after the expiry of a period of sixty days

from the date of the nomination of a person for

appointment as a Director-General under subsection (2),

the National Assembly has neither approved nor

rejected the nomination of the person, the nominee shall

be deemed to have been approved by the National

Assembly.

Qualifications
of the

Director-

General.

8.
(1) A person is qualified for appointment as

the Director-General if the person—

(a)
is a citizen of Kenya;

(b)
holds a degree from a university

recognized in Kenya;

(c)
has knowledge and at least fifteen

years experience in intelligence or

national security;

(d)
has served in a senior management

Position ,in the Service or public

service for at least ten years; and

(e)
meets the requirements of Chapter

Six of the Constitution.

(2) A person is not qualified for appointment as

Director-General if that person—

(a) is a member of Parliament, a

member of a county assembly, a

governor or a deputy governor;

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(b)
has, in the immediate preceding

period of five years, served as a

member of Parliament, a member

of a county assembly, a governor, a

,deputy governor, a trade union

official or held an office in a

political party;

(c)
holds dual citizenship;

(d)
has been convicted of a criminal

offence and has been sentenced to

imprisonment for a term exceeding

six months without an option' of a

fine;

(e)
has previously been removed from

office for contravening the provisions

of the Constitution or any other

written law; or

(f)
is an undischarged bankrupt.

9. (1)
The Director-General shall —

(a)
– be responsible for the overall, management
and administration of the Service;

(b)
be responsible for the overall operational

control of the Service;

(c)
be the principal advisor to the President

and

Government on national security

based on security intelligence and counter

intelligence to enhance national security;

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Functions and
powers of the

Director-

General.

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(d)
report to the President, the National

Security Council and the Cabinet Secretary

on threats and potential threats to national

security and national interests as is

appropriate;

(e)
take all necessary steps to ensure that the

actions of the Service are limited to what is

necessary for the proper performance of its

functions under the Constitution, this Act

or any other written law and that no

information is gathered or disclosed by the

Service except in so far as may be

necessary for the proper performance of its

functions;

(0
ensure that the Service is not, in the

performance of its functions, influenced by

considerations not relevant to such

functions and that no act is performed that

could give rise to any reasonable suspicion

that the Service is concerned in furthering,

protecting or undermining the interests of

any person, particular section of the

population or of any political party or other

organization in Kenya;

(
g)
as far as is reasonably practicable, take

steps to ensure that classified information,

intelligence collection methods, Service

operations, sources of information and

identity of members of the Service are

protected from disclosure otherwise than

in the strict performance of the 'functions
of the Service under the Constitution and

this Act;

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(h)
participate in the formulation of national

intelligence policy and strategy ;

(i)
make recommendations to the Cabinet

Secretary on the formulation of the policy

and implement the national intelligence

policy and strategy;

(j) ensure effective utilization of resources as

required by Article 201 of the Constitution;

(k)
undertake education, training and

development of members of the Service;

(1) oversee the development of mechanisms to

ensure that members of the Service

discharge their functions and exercise of

their powers in accordance with the

Constitution, this Act and any other written

the law;

(m)
administer, control and manage the

Service as a disciplined civilian service;

(n)
put in place mechanisms, steps and

systems —

(i)
to

ensure

that

the

members of the Service

are not unduly influenced

in the performance of the

functions of the Service;

(ii)
to ensure that the Service

is impartial in the

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execution of its functions;

(iii)
to prevent disclosure of

the operations of the

Service;

(iv)
to prevent disclosure of

classified information;

(v)
to protect the identity of

sources of information to

the Service;

(vi)
to protect the identity of

members of the Service;

(vii)
to prevent unauthorized

access to the premises of

the Service; and

(viii)
to prevent interference

with any installations of

the Service; and

(o) perform any other lawful function as may be

assigned by the President or the Cabinet

Secretary or any other written law.

(2)
The Director-General shall have all the

powers necessary or expedient for the performance of

his or her functions under the Constitution, this Act dr

any other written law.

(3)
The Director-General may, in writing,

delegate any power or assign any function conferred

upon him or her under this Act or any other written law

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to a member of the Service.

(4) The delegation of a power or assignment of a

function under subsection (3) shall not prevent the

Director-General from exercising the power or

discharging the function in question in person.

(5)
Subject to subsection (3) the Director-General
may—

(a)
impose such conditions as are

necessary for the performance of the

function or exercise of the power; or

(b)
withdraw any decision made by the

person to whom the power or function

had been delegated.

10. (1) The Director-General shall hold office for a

term of five years and may be eligible for re-

appointment for one further term.

(2) Notwithstanding subsection (1) the President
shall remove the Director:General from office on the

following grounds—

(a)
violation of the Constitution, this

Act or any other written law

including contravention of Chapter

Six;

(b)
gross misconduct whether in the

performance of the office holders

functions or otherwise;

(c)
if the Director-General is convicted

Tenure of office.

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of an offence;

(d)
physical or mental incapacity to

perform the function of office;

(e)
incompetence;

(f)
partisan political activity; or

(g)
bankruptcy.

(3) Before the removal of the Director-General

under paragraphs (a), (b), (d), (e) and (f) of subsection

(2), the Preiident shall appoint a Tribunal in accordance

with the Second Schedule and refer the question of

removal of the Director-General to the Tribunal, which

shall—

(a)
investigate the circumstances giving rise to

the proposed removal; and

(b)
make recommendations to the President.

(4)
Notwithstanding subsection (1), the President

may remove the Director-General at any time before the

expiry of the term of office.

(5)
Where a person, who was serving in the public

service prior to appointment as a Director General, is

subsequently removed from office under subsection (4),

that person shall have the .option of retiring or being

deployed within the public service.

Vacancy.

11. (1) The office of the Director-General shall

become vacant if the holder-

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(a)
dies;

(b)
resigns by notice, in writing, to the

President; or

(c)
is removed by the President in

accordance with section 10(2), (3)

and (4).

(2) Where the Director-General resigns from

office, he or she shall cease to hold office one month

after receipt by the President, of the written notice of

resignation.

12. (1) Where the Director-General is unable to

perform the functions of the office as a result of

temporary incapacity or any other reason, the

President shall appoint one of the Directors to act in

place of the Director-General.

(2)
A person appointed under subsection (1) shall

not act in that position for more than six months.

(3)
In this section, temporary incapacity means

any inability to carry out duties under the Act or other
written law due to an illness or other incapacity lasting

continuously for a period of not less than three

months.

13. The remuneration and other benefits of the

Director-General shall be set and regularly reviewed

by the Salaries and Remuneration Commission.

14.(1) The Service shall have the following

divisions—

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Temporary

incapacity.

Remuneration and

other benefits

Divisions of the

Service.

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(a)
an – internal intelligence division

which shall be responsible for

gathering domestic intelligence;

(b)
an external intelligence division

which shall be responsible for

gathering foreign intelligence;

(c)
a counter intelligence division

which shall be responsible for

gathering and performing counter-

intelligence; and

(d)
such other divisions of the Service
as may be necessary for the proper

and efficient performance of the

functions of the Service under this

Directors.

15. (1) A division of the Service shall be headed

by a Director appointed by the Director-General in

consultation with the Council.

(2) A person is qualified for appointment as a

Director if the person—

(a) is a citizen of Kenya;

(b)
holds a degree from a university

recognized in Kenya;

(c)
has knowledge and at least seven

years experience in intelligence or

national security;

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(d)
has

served

in

a

senior

management position in the

Service or government for at least

five years; and

(e)
meets the requirements of

Chapter Six of the Constitution.
(3) A person is not qualified for appointment as a
Director if the person—

(a)
is a member of Parliament,

a member of a county

assembly, a governor or a

deputy governor;

(b)
has, in the immediate

preceding period of five

years, served as a member

of Parliament, member of a

county

assembly,

a

governor or a deputy

governor, a trade union

official or held office in a

political party;

(c)
holds dual citizenship;

(d)
has been convicted of a

criminal offence and has

been

sentenced

to

imprisonment for a term

exceeding

six

months

without an option of a fine;

or

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(e) has

previously

been

removed from office for

contravening the provisions

of the Constitution or any

other written law.

Other members of
the Service.

Security screening

of members of the

Service.

(4)
In the recruitment of Directors, the Director-

General and the Council shall comply with Article

232(g), (h) and (i) of the Constitution.

(5)
A Director shall be the administrative head of a

division but shall be subject to the direction and

control of the Director-General.

16. (1) The Council shall appoint such number of

members of the Service as may be necessary for the

proper and efficient discharge of the functions of the

Service.

(2)
The Director-General may, in consultation

with the Council, request for a public officer to be

seconded or temporarily attached to
the
Service from

either level of government for a specific period of time

and on such terms and conditions as may be agreed

upon between the Director-General and the seconding

body.

(3)
For the purposes of this Act, a public officer

who is seconded to the Service under subsection (2)

shall be regarded as a member of the Service and be

subject only to the operational control and direction of

the Director-General.

17. (1) A person shall not be eligible for

appointment as a member of the Service unless —

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(a)
information regarding that persori has been

gathered in the prescribed manner, in a

security screening investigation by the

Service; and

(b)
the Service, after evaluating the gathered

information, is of the reasonable opinion

that such a person may be appointed as a

member without the possibility of such a

person being a security risk or acting in

any way prejudicial to national security.

(2) For the purpose of subsection (1) the Service

may, in a prescribed manner, have access to—

(a)
criminal records;

(b)
financial records;

(c)
personal information; and

(d)
any other information which is

relevant to that determination of the

security clearance of the person.

(3) The Director-General may, in the prescribed

manner, issue directives on—

(a)
polygraph testing or any other method of

testing;

(b)
the level of security clearance; and

(c)
the criteria for evaluating the security

competency.

(4) The Director-General may, after evaluating

the information gathered under this section, issue,

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degrade, withdraw or refuse to grant security

clearance.

Functions and

powers of

members of the

Service.

18.
(1) A member of the Service shall—

(a)
perform the functions and duties

assigned to the member by or

under this Act or any other

written law; and

(b)
obey lawful orders and directions

which he or she may from time

receive from a person having the

authority to give such directions.

(2)
A member of the Service shall for purposes

of this Act be considered to be always on duty when

required to act as such, and shall perform the duties

and exercise the powers granted to him or her under

this Act or any other written law at any place where he

or she may be deployed.

(3)
A member of the Service shall have all the

powers necessary for the performance of the functions

of the Service under this Act, an nay exercise such

powers as are conferred on hi r her by or under this

Act or any other written law.

Oaths and
affirmations

19.
(1) The Director-General and every member

of the Service shall, before assuming office, make and

subscribe to the respective oaths or affirmations as

prescribed in the Third Schedule—

(a)

in the case of the Director-General,

before the President; and

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(b)

in the case, of every other member of

the Service, before the Director-

General.

(2) The oath shall bind the Director-General and

every member of the Service during and after expiry

or termination of employment or engagement with the

Service.

20. (1) The Director-General shall cause to be

issued to a member of the Service on appointment, a

certificate of appointment.

(2)
The certificate of appointment shall be in

such form as the Director-General may prescribe by

notice in the Gazette.

(3)
A member of the Service shall produce the

certificate of appointment issued under subsection (1)

on being requested to do so by any person in relation

to whom that officer is exercising or is about to

exercise a power conferred by this Act.

(4)
A member of the Service may, where

necessary for the performance of his or her functions

under this Act and with approval of the Director-

General, carry and use an official firearm.

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Certificate of

21.The Director-General shall, in consultation

with the Public Service Commission and on the advice

of the Salaries and Remuneration Commission

prescribe a scheme of service setting out the terms and

conditions of service for members of the Service

which shall provide for—

Scheme of service.

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(a) appointments,

confirmation

of

appointments, promotions, resignations,

retirements and termination of

appointment;

Pension scheme

and other benefits.

(b)
scales of salaries and allowances; and

(c)
the designations and grades of members of

the Service.

22.
The Director-General-

(a)

shall with the approval of the Council

establish-

(i)
a pension scheme for the members of

the Service; and

(ii)
a medical scheme for the Service to

provide for in-service and retirement

medical benefits; and

(b) may with the approval of the Council and

subject to any written law, establish such

other schemes as the Director-General may

consider to be necessary.

Disciplinary code.

23.
(1) Subject to Articles 234(2) (g) and 47 of the

Constitution, the Council shall, in consultation with

the Public Service Commission, issue and maintain a

disciplinary code for the Service which may—

(a)
prescribe disciplinary offences;

(b)
provide for the investigation,

hearing and determination of

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disciplinary cases and the hearing

of any appeals therefrom; and

(c) provide for the delegation by the

Director-General to any Director

or a member of the Service of

such disciplinary powers as he or

she may consider necessary.

(2) The disciplinary code may, in addition to any

other penalties provided for under this Act or any

written law, provide for the following disciplinary

penalties—

(a)
dismissal from the Service;

(b)
retirement in public interest;

(c)
reduction in rank or grade as the

case may be;

(d)
reprimand;

(e)
admonition;

(f)
stoppage of salary increments;

(g)
fines;

(h)
recovery of the cost or part

thereof in respect of any loss or

damage to the property of the

Service caused by the default or

negligence of any member of the

Service subject to disciplinary

proceedings where such recovery

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has not been effected through any

other lawful Government

procedure; and

(i
)

recovery of any loss of public

funds used contrary to the law

from a member of the Service

who approves the use of the

public funds, whether the person

remains the holder of the office or

not.

Code of Conduct

and Ethics.

Cap.183

Cap.183.

Information to
members of the

Service.

24.
(1) In accordance with section 3(9) and

section 5 of the Public Officer Ethics Act, and the law

relating to matters of leadership and integrity enacted

pursuant to Article 80 of the Constitution, the Director

– General may issue and maintain a code of conduct,

ethics, leadership and integrity for the members of the

Service which may provide for—

(a) professional conduct;

(b) political neutrality;

(a)

conflict of interest;

(d) conduct of private affairs;

(e)
dealings with foreigners; and

(f)
submission of declarations.

(2) For the avoidance of any doubt, members of

the Service are bound by the Public Officers Ethics

Act or any other written law regulating matters of

ethics and integrity issues for public officers.

25.
The Director-General shall ensure that the

code of conduct and ethics, disciplinary code and

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other rules, regulations, guidelines or information

relating to and affecting members of the Service are

made available to the members of the Service.
26.
The Director-General shall establish

procedures for the consideration and adjudication of

grievances in relation to members of the Service.
PART III— CIVILIAN AUTHORITY
27.
In order to give effect to the requirement
under Article 239 (5) of the Constitution, effective

civilian authority shall be exercised through the

Cabinet Secretary.

Mechanism for

determination of

grievances.

Effective civilian

authority.

28.
(1)
The Cabinet Secretary shall, subject to

Functions of the

Cabinet Secretary.

(a)
ensure that there are satisfactory arrangements

in place for the carrying out of policy

directions;

(b)
in consultation with the Director-General,

develop national intelligence policies and

strategies;

(c)
monitor the implementation of the national

intelligence policies and strategies;

(d)
receive and take appropriate action on reports

submitted by the Director-General;

(e)
facilitate the Service by • ensuring that the

Service is adequately resourced and

capacitated to achieve its mandate;

this Act—

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2012

(f)
submit an annual report to Parliament on the

activities of the Service during the period

covered by the report indicating the activities

and accomplishments of the Service and

including such recommendations as he or she

may consider appropriate; and

(g)
perform any other function conferred under the

Constitution, this Act or any other written law.

Functions of the

National Security

Council.

29.
Pursuant to Article 240 (3) and (6) of the

Constitution, the National Security Council shall—

(a)
exercise supervisory control over the

Service;

(b)
integrate domestic and foreign policies

relating to national security in order to

enable the Service to co-operate with

other national security organs and

function effectively; and

(c)
perform any other function in relation

to the Service as may be prescribed

under any other written law.

Compliance with

Article 59(2)(d) of

the Constitution.

30.
The Service shall ensure compliance with

Article 59(2)(d) of the Constitution.

PART IV – LIMITATION OF RIGHTS AND
FUNDAMENTAL FREEDOMS

Rights and

fundamental

freedoms.

31.
(1) A person to whom this Act applies shall

enjoy all rights and fundamental freedoms enshrined

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in the Constitution unless the rights or fundamental

freedoms have been limited to the extent specified in

this Act or any other written law.

(2) Notwithstanding subsection (1), a limitation
under this Act shall not derogate from the rights and

fundamental freedom in Article 25 of the

Constitution.

32.
(1) Notwithstanding section 31, the purpose

of this Part is to limit or restrict the rights and

fundamental freedoms as contemplated by Article 24

of the Constitution.

(2) Limitations of rights and freedoms under this
Part is necessary for purposes peculiar to intelligence

services and operations, based on human dignity, to

ensure—

(a)
the protection, maintenance and

promotion of national security;

(b)
the protection of classified information;

(c)
the security and safety of members of

the Service;

(d)
good order and discipline in the

Service; and

(e)
that the enjoyment of the rights and

fundamental freedoms by a person do

not

prejudice

the

rights

and

fundamental freedoms of others.

(
3
) Limitation of rights and fundamental

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Conditions for
limitation of rights
and fundamental

freedoms.

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freedoms under this Part–

(a)
shall satisfy the criteria set out in Article

24(1) of the Constitution; and

(b)
shall-

(i)
ensure the protection, maintenance of

and promotion of national security,

public safety, public order and

protection of the rights and freedoms

of others;

(ii)
be necessary to achieve the mandate

of the Service;

(iii)
be done without discrimination; and

(iv)
be exceptional and not derogate the

core or essential content of the right

or freedom being limited.

Limitation of
freedom of

expression.

33.
(1) The freedom of expression set out under

Article 33 of the Constitution may be limited in

respect of a member of the Service under the

conditions set out in subsection (2).

(2) Limitation of the freedom of expression shall

be to the extent that it is done –

(a)
in the interest of national security,

public safety, public order, public

morality or public health;

(b)
for the purpose of protecting the

integrity of Service operations;

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(c)
for the purpose of protecting the

reputation, rights and freedoms of the

members

or private

persons

concerned in legal proceedings;

(d)
for the purpose of preventing the

disclosure of information received in

confidence;

(e)
for the purpose of regulating the

technical administration or the

technical

operation

of

telecommunication,

wireless

broadcasting,

communication,

internet, satellite communication or

television; or

(f)
for the security and protection of

information within the Service.

34. (1) The political rights set out in Article 38

of the Constitution may be limited to the extent that a

member of the Service shall not—

(a)
form, join, participate in the activities,

campaign for a political party or

political cause or recruit members for

a political party; or

(b)
serve as a member of Parliament, the

Senate, a county assembly or any other

political body.

(2) The provisions of subsection (1) shall not

apply to the members' right to register as a voter and

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Limitation of

political rights.

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to vote in an
election, by-election or a referendum.

Limitation to

freedom of

movement and

residence .

35.
The freedom of movement and residence set
out in Article 39 of the Constitution may be limited in

respect of a member of the Service —

(a)
by restricting the right of the member to

leave Kenya in the interest of national

security;

(b)
when entering or having entered, to remain

within or around designated areas for

purposes of attending training or securing

the performance of duties by the member;

Or

(c)
under any other circumstances which that

member may be subjected to in respect of

movement or residence within or outside

Kenya.

Limitation to the

right to privacy.

36.
The right to privacy set out in Article 31 of

the Constitution, may be limited in respect of a person

suspected to have committed an offence to the extent

that subject to section 42, the privacy of a person's

communications may be investigated, monitored or

otherwise interfered with.

(2) The Service shall, prior to taking any action

under this section, obtain a warrant under Part V.

Limitation of the
right to access to

information.

37.
(1) The right of access to information set out

in Article 35 (1) and (3) of the Constitution may be

limited in respect of classified information or

information under the custody of the Service under the

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28

circumstances set out under subsection (2).

(2) Subject to subsection (1) the Service shall

not—

(a)
comply with a request to furnish a person

with classified information;

(b)
disclose or publicize information relating

to sources of information, intelligence

collection methods and covert operations

of the Service; or

(c)
disclose or publicize information, the

disclosure or publication of which would

be prejudicial to national security.

(3)
The Cabinet Secretary may by regulations

determine the categories of security classification.

(4)
The categories of classified information

referred to under subsection (3) may include—

(a)
"top secret" which means

information whose unauthorized

disclosure

would

cause

exceptionally grave damage to the

interests of the State;

(b)
"secret" which means information

whose unauthorized disclosure

would cause serious injury to the
interests of the tate;

(c)
"confidential"

which

means

information whose unauthorized

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disclosure would be prejudicial to

the interests of the State; and

(d) "restricted"

which

means

information whose unauthorized

disclosure would be undesirable in

the interests of the State.

Limitation of the

right to freedom of

association.

Limitation of the
right to assembly,

demonstrate,

picket and

Petition.

Limitation of the
right to labour

relations.

Limitations to
economic and
social rights.

38.
(1) The freedom of association set out in

Article 36 of the Constitution, is limited by preventing

a member of the Service from joining or participating

in the activities of an association.

(2) Notwithstanding subsection (1), a member

of the Service may join or participate in the activities

of a professional association.

39.
The right to assemble, demonstrate, picket

and petition public authorities set out in Article 37 of

the Constitution is liniited by prohibiting, the officers

from assembling, demonstrating, picketing or

petitioning public authorities except for the purposes

of maintaining good order and discipline in the

Service.

40.
The right to fair labour practices set out in

Article 41 of the Constitution, is limited by prohibiting

a member of the Service from forming, joining,

agitating or participating in the activities of trade

unions or going on strike to extent necessary for

maintaining good order and discipline in the Service.

41.
The economic and social rights set out in

Article 43 of the Constitution, may be limited in

respect of members of the Service to the extent

necessary for intelligence training and operation.

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PART V- WARRANTS

42.(1)
Where the Director-General has

reasonable grounds to believe that a warrant under this

section is required to enable the Service to investigate
any threat to national security or to perform any of its

functions, he or she may apply for a warrant in

accordance with subsection (2).

(2)
An application under subsection (1) shall be

made
ex-parte
and before a Judge of the High Court.

(3)
An application under subsection (2) shall

subject to section 47 be—

(a)
made in writing; and

(b)
accompanied by a sworn statement

including the following matters —

(i)
the purpose for which the

warrant is sought;

(ii)
whether other investigative

procedures have been tried and

have failed or are unlikely to

succeed;

(iii)
whether the, urgency of the

matter is such that it would be
impracticable to carry. out the

investigation using any other

investigative procedures;

Application for a

warrant by the
Director-General.

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(iv)
that without a warrant it is

likely that information with

respect to the threat to national

security would not be obtained;

(v)
the type of information,

material, record, document or

thing proposed to be obtained;

(vi)
the person, if known, to whom

the warrant is to be directed;

(vii)
a general description of the

place where the warrant is

proposed to be executed; and

(viii)
if the assistance of any person in

implementing the warrant will

be

sought,

sufficient

information for a judge to so

direct.

Issuance of a

warrant.

Assistance in

execution of a
warrant

43.
A judge may issue a warrant under this

Part authorizing the taking of such action as is

specified in the
warrant in
respect of any person,

property or thing 'specified therein if the judge is

satisfied that it is necessary for the action to be taken

in order to obtain any information, material, record,

document or thing which is likely to be of substantial

value in assisting the Service in the investigation in

question and which cannot reasonably be obtained by

any other means.

44.
Where the Director-General intends to seek

the assistance of any person in executing the warrant,

the judge may, upon the Director-General's request,

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direct appropriate persons to furnish information,

facilities or technical assistance necessary to execute

the warrant.

45.
A warrant issued under section 43 may

authorize any member of the Service to obtain any

information, material, record, document or thing and

for that purpose —

(a)
to enter any place, or obtain access to

anything;

(b)
to search for or remove or return,

examine, take extracts from, make copies

of or record in any other manner the

information, material, record, document

or thing;

(c)
to monitor communication; or

(d)
to install, maintain or remove anything.

46.
(1) The period for which a warrant is issued

shall be specified in the warrant but shall not exceed

one month at any one time.

(2)
The judge who issued a warrant may, upon a

'written application made by the Director-General

before the expiry of the period or extended period for
which the warrant has been issued, extend that period

for a further period not exceeding one month at a time

if the judge is convinced that the extension is

necessary for the reasons mentioned in section 43. –

(3)
If, upon an application made by the Director-

General before the expiry of the period or extended

Effects of a

warrant.

Period of validity
and extension of a

warrant.

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period for which a direction has been issued, the judge

is convinced that the grounds on which the warrant

was issued have ceased to exist, the judge shall cancel

the warrant.

Oral application
for a warrant.
47.
(1) Where the judge is satisfied that the

urgency of the circumstances so requires, he or she

may dispense with the requirements of section 42 and

hear an oral application for a warrant, or for the

extension of a warrant.

(2) Where the Judge is satisfied that a warrant

is necessary as mentioned in section 42 or that

extension is justified as provided for in section 46, he

or she shall issue the warrant or as the case may be,

extend the warrant.

Director General to

make application

within seventy two

hours.

48. (1)
Where a warrant is issued or extended

under section 47, the Director-General shall within

seventy two hours from the time of issuance, or as the

case may be, the extension of the warrant submit to

the judge a written application.

(2) If the Director-General fails to submit a

written application as required under subsection (1) or

the judge is not satisfied that the warrant should be

extended, he or she shall make an order withdrawing

the warrant.

Extreme
emergency.

49.
(1) In the event of extreme emergency, the

Director-General may exercise powers under section

45, whether or not an application referred to in section

42 has been made, provided that the Director-General

shall, as soon as is practically possible, but not later

than thirty six hours after exercising any of the powers

under subsection 45 make an application to a judge in

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accordance with the provisions of this section.

(2) An application for a warrant under this Part

shall be made by the Director-General or a member of

the Service authorized for that purpose by the Director

General.

50.
A person aggrieved by the issuance of a

Appeal.

warrant or by the extension of the period of a warrant

under this section may appeal to the High Court within

fourteen days of the issuance or extension of the

warrant.

PART VI
–
OFFENCES

No. 28

51.
(1) A member of the Service shall not

subject any person to toiture, cruel, inhuman or

degrading treatment.

(2) A member of the Service who subjects a

person to torture commits an offence and is liable on
conviction to imprisonment for a term not exceeding

twenty five years.

(3)
A member of the Service who subjects a

person to cruel, inhuman or degrading treatment

commits an offence and is liable on conviction to

imprisonment for a term not exceeding fifteen years.

(4)
In this section—

"cruel, inhuman and degrading treatment or

punishment" means a deliberate and aggravated

treatment or punishment not amounting to torture,

inflicted by a person in authority or the agent of the

person in authority against a person under his or her

Prohibition against

torture or cruel

treatment.

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custody, causing suffering, gross humiliation or

debasement to the person;

Prohibition of
certain conduct of

members of the
Service.

"torture" means any act by which severe pain or

suffering, whether physical or mental, is intentionally

inflicted on a person for the purpose of-

(i)
obtaining information or a confession

from the person or from a third -person;

(ii)
punishing the person for an act which

that person or a third person has

committed or is suspected of having

committed;

(iii)
intimidating or coercing that person or

a third person; or

(iv)
for any reason based on discrimination

of any kind,

when such pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence of a

public official or other person acting in an official

capacity.

52.
A member of the Service, who—

(a) acts as an agent, campaigns for or

otherwise engages in the activities of a

political party; or

(b). enters, searches any private premises or

seizes any material otherwise than as

provided for under Part V,

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commits an offence and is liable, on conviction, to a

fine not exceeding five million shillings or to

imprisonment for a'term not exceeding ten yeari, or to

both.

53.
Any member of the Service who remains
absent from duty without leave or just cause for a

period exceeding twenty-one days commits an offence

and is liable, on conviction, to—

(a)
dismissal;

(b)
imprisonment for a term not exceeding

two years;

(c)
a fine not exceeding three hundred

thousand shillings; or

• (d) both imprisonment and a fine.

54. (1)
A member of the Service who is dismissed,

resigns or otherwise leaves the Service, shall surrender

any property of the Service held to an officer

designated under subsection (2).

(2) The Director-General may by Regulations—

(a) designate property which should be

surrendered under subsection (1); and

(1)
designate an officer of the Service to

receive property which is surrendered

under subsection (1).

(3)A member of the Service who —

Desertion.

Surrender of

Service property

on exit.

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(a)
fails to comply with subsection (1);

Or

(b)
who returns property in a damaged

condition, the damage not being

attributed to the proper discharge of

duties in the Service,

commits an offence.

(4)
A person who commits an offence under this

section shall, on conviction and notwithstanding any

other penalty that may be imposed on him or her, be

liable for the cost of replacing or repairing such

property.

(5)
The cost of replacing or recovering property

under this section may be recovered—

(a)
by making deductions from any monies

due to such person; or

(b)
as a civil debt.

Prohibition of false

representations as
to association with

Service.

55.
A person who, without prior written approval

of the Director-General, in connection with any

activity carried out by him or her, uses any name,
description, title or symbol which is likely to lead

another person to believe that the activity is carried out
under the provisions of this Act or under the patronage

of the Service, commits an offence and shall on

conviction be liable to imprisonment for a term not

exceeding seven years or to a fine not exceeding one

million shillings or to both.

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56.
Any person, who—

(a)
falsely represents himself or herself to

be the Director-General or a member

of the Service;

(b)
exercises or attempts to exercise undue

influence over the Director-General or

any member of the Service; or

(c)
is an accomplice in the commission of

an act whereby any lawful order given

by the Diree,tor-General or any

member of the Service or any

regulation or directive or any rule may

be evaded,

commits an offence and is liable on conviction to

imprisonment for a term not exceeding ten years or to

a fine not exceeding one million shillings or to both.

57.
Any person who discloses, publishes,

broadcasts, causes to be published or otherwise makes

public, without the approval of the Director-General,

the identity of a person who—

(a)
is a confidential source of information to

the Service; or

(b)
is a member of the Service engaged in a

covert operation,

commits an offence and is liable on
conviction, to

imprisonment for a term
not exceeding foirl'

Offences in
connection with
members of the

Service.

Prohibition of

disclosure of.

identity.

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58.
(1) The Cabinet Secretary may, by notice in

the Gazette, prohibit or restrict access to land or

premises under the control of the Service.

(2) Any person who enters the land or any

premises or takes a photograph of the land or premises

which has been gazetted pursuant to subsection (1)

without having first obtained the authority of the

Director-General commits an offence and is liable on

conviction to imprisonment for a term not exceeding

two years or a fine not exceeding three hundred

thousand shillings, or to both.

59.
Any unauthorized person with intent to aid a

foreign power or entity or endanger national security

obtains, attempts to obtain or is found in possession of

classified information without lawful excuse commits

an offence and is liable on conviction to imprisonment

for a term not exceeding five years or a fine of five

million shillings.

60.
A person who obstructs, assaults, hinders, the

Director-General or any member of the Service or any

person acting under the direction of the Director-

General or such member in the due execution of his or

her duties under this Act, commits an offence and is

liable on conviction to—

(a)
imprisonment for a term not exceeding

two years;

(b)
a fine not exceeding three hundred

thousand shillings; or

(c)
to both a fine and imprisonment.

Prohibition of
access to premises
of the Service.

Prohibition of

unauthorized

access and

retention of

information.

Interfering with the
Director-General

and members of

the Service.

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Prohibition of

unauthorized

disclosure of

information.

61.
(1) Any person who discloses or uses any

information gained by him or her by virtue of his or

her employment otherwise than in the strict course of

his or her official duties or without the authority of th6
Director-General commits an offence.

(2) Any person who, by a warrant —

(a)
is authorized to obtain or seize any

information, material, record, document or

thing or any other source material; or

(b)
is requested to give any information,

material, record, document or thing or any

other source material or to make the

services of other persons available to the

Service,

discloses .the warrant, or discloses or uses any

information gained by or conveyed to him or her when '

acting pursuant to the warrant, otherwise than as

authorized by the warrant or by the Director-General

commits an offence.

(3) A person who—

(a)
discloses information gained while in

the course of duty in the. Service

without the authority of the Director-

General;

(b)
receives classified information by

virtue of his or. her engagement with

the Service and discloses such

information without the authority of

the Director-General;

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(c)
receives classified information from

the Service while being entitled to

receive the information and uses that

information otherwise than in the

strict course of his or her duty;-

(d)
receives classified information from

the Service while being entitled to

receive and discloses the Service as

the originator or author of such

information without the authority of

the Director-General;

(e)
receives

classified information,

knowing or having reasonable

grourids to believe that the

information was obtained
or

communicated to him or her in

contravention of this Act and

discloses such information to any

person other than the Director-

General or an officer of the Service;

or

(f)
discloses any classified information

to any person other than the person

whom he or she is authorized to

disclose it to,

commits an offence.

(4) A person who commits an offence under this

section is liable, on conviction to imprisonment for a

term not exceeding fourteen years.

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(5) The provisions of this section shall' apply

to a person even after expiry or termination of

employment, association or engagement with the

Service.

(6) The limitation on disclosure in this section

shall not be construed to prevent a person from

disclasing criminal activity.

62.
Any person who—

(a)
attempts to commit any offence under

this Act;

(b)
solicits or procures another person to

commit an offence under this Act; or

(c)
aids or abets or does anything

preparatory to the commission of an

offence under this Act,

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.

63.
(1)A person who is or was a member of thd

Service shall not without the authority of the Director-

General disclose or communicate, whether in Kenya

or elsewhere, classified information or – any

information the disclosure of which is detrimental to

national security.

(2) A person who contravenes subsection (1)

commits an offence and is liable, on conviction, to

No. 28

Attempts etc.

Prohibited

communications

by former

members.

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imprisonment for a term not exceeding fourteen years.

PART VII
–
OVERSIGHT BODIES

National
Intelligence
Service Council.

64.(1)
There is established a Council to be

known as the National Intelligence Service Council

which shall consist of—

(a) the Cabinet Secretary, who shall be the

chairperson;

(b)
the Cabinet Secretary for the time being

responsible fgx fliatters relating to

foreign affairs;

(c)
the Cabinet Secretary for the time being

responsible for matters relating to

finance;

(d)
the Attorney-General; and

(e)
the Director-General.

(2) The Council shall appoint a member of the

Service to be the Secretary to the Council.

(3) The Secretary shall be responsible for—

(a) communicating the decisions of

the Council; and

(b)
the performance of any other

function as may be assigned to

him from time to time by the

Council.

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(4) The functions of the Council shall be to

advise the Service generally on all matters pertaining

to—

(a)
the national intelligence policies

and strategies;

(b)
the administration of the Service;

and

(c)
the expenditure of the Service.

(5)
For the better carrying out of its functions

under this Act, the Council may establish such

functional committees as it may consider necessary.

(6)
The Council may co-opt into the committees

established under subsection (5) other persons whose

knowledge and skills are found necessary for the

performance of the functions of the Council.

(7)
A person who is co-opted into the

committee of the Council under subsection (6) may

attend the meetings of the Council and participate in

its deliberations, but shall have no right to vote at the

meeting.

(8)
The business and affairs of the Council

shall be conducted in accordance with
the
Fourth

Schedule, but subject thereto, the Council may

regulate its own procedure'

65.
Parliament shall pursuant to Article 238(2) of

Parliamentary

the Constitution exercise oversight over the Service

Oversight .

No. 28

Intelligence

Service

Complaints Board.

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through the relevant Committee.

66.
(1)There is established a Board to be known as
the Intelligence Service Complaints Board which shall

consist of the following members, appointed by the

Cabinet Secretary on the recommendation of the

Public Service Commission—

(a)
a chairperson who shall be a person who

qualifies to be a judge of the High Court;

(b)
four other members of whom-

(i)
One shall be a person nominated

by

the

Kenya

National
Commission on Human Rights;

(ii)
one shall be an advocate of not

less than seven years standing;

(iii)
one shall be a retired senior

intelligence officer; and

(iv)
one shall be a person who has at

least seven years experience in

public service;.

(2)
In the appointment of members of the Board,

the Cabinet Secretary shall comply with Articles 73(2)

(a) and 232(1) (i) of the Constitution and ensure that

not more than two-thirds of the members of the Board

are of the same gender.

(3)
A member of the Board shall hold office for a

period of three years but shall be eligible for

reappointment for one further term.

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(4) A member of the Board shall be paid such

remuneration and . other benefits as the Cabinet

Secretary, may on the advice of the Salaries and

Remuneration Commission, determine.

(5)
A member of the Board may resign from his

or her office by notice, in writing, addressed to the

Cabinet Secretary and the resignation shall take effect
from the date of receipt of the letter of resignation by

the Cabinet Secretary.

(6)
Where a member of the Board vacates office

before the expiry of his or her term of office, the

Cabinet Secretary shall, on the recommendation of the
Public Service Commission, appoint another person in

his or her place.

(7)
Where a 'member of the Board is unable to

perform the functions of his or her office due to any

temporary incapacity, the Cabinet Secretary may

appoint a substitute for the chairperson or member
until such time as the Cabinet Secretary determines

that the incapacity has ceased.

67. (1) The functions of the Board shall be—

(a)

to receive and inquire into

complaints against the Service

made by any person aggrieved by

anything done by the Director-

General or any member of the

Service in the exercise of the

powers or the performance of the

functions of the Service under this
Act;

Powers and
functions of the

Board.

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(b)
to inquire into any other matter

referred to
it by the President or

the Cabinet Secretary under this

Act; and

(c)
to make its recommendation

thereon to the President or the

Cabinet Secretary.

(2) Subject to the provisions of subsection (4)

and for the purpose of investigating any complaint

under this Act, the Board shall have the powers of the

High Court—

(a)
to summon any witness;

(b)
to administer oaths or affirn3Ations;

and

(c)
to order the production of any

records or documents relevant to the

investigation.

(3) No person shall be compellable under any
such summons to produce any document which he or

she could not be compelled to produce at the trial of a

suit.

(4) In the discharge of its functions under this

Act, the Board shall have regard to the requirements

of national security and for that purpose shall-

(a) subject to subsection (1)(b), consult the

Director-General and the Council; and

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(b) take all the necessary precautions to prevent

the disclosure of-

(i)
any information which in its

opinion may not be

disclosed in the course of,

or in relation-to any inquiry;

and

(ii)
the

source

of

such

information.

(5)
The Board may hear separately and in

private. such evidence as may be tendered by a

complainant and the Director-General or any other

member of the Service in relation to a complaint.

(6)
If during the inquiry, the Board receives

evidence of a breach of duty or misconduct against

any member of the Service, it shall notify the Cabinet

Secretary and the Council or the Director-General, as

the case may be, and subject to the provisions of this

Act, recommend appropriate disciplinary action

against such member.

(7)
At the end of the inquiry, the Board shall

inform the complainant, in writing, of its fmdings and

shall make a report of its findings and

recommendations to the Cabinet secretary and the

Council.

(8)
The Cabinet Secretary shall Make

regulations, prescribing the manner in which the

Board shall discharge its functions under this Part

including the procedure for proceedings of the Board,

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but subject thereto, the Board shall regulate its own

procedure.

68. (1) Proceedings shall not lie against any

member of the Board in respect of anything done in

good faith in the performance of the functions of the

Board or the exercise of the powers of the Board

under this Act.

(2)
A member of the Board shall not be called

upon to give evidence in any court or in any

proceedings of a judicial nature, in respect of anything

in his or her knowledge by virtue of the powers or the

functions of the Board under this Act.

Funds of the

Board.

(3)
Anything said or any information supplied

or any document or material produced by any person
in the course of any inquiry by, or proceedings before

the Board shall be privileged in the same manner as if

the inquiry or proceedings were proceedings in a

court.

69. The National Assembly shall allocate the

Service adequate funds to enable the Board perform

its functions.

Proceedings

findings, etc

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PART VIII – FINANCIAL PROVISIONS

70.
(1) The funds of the Service shall consist of—

(a)
monies allocated by Parliament for

purposes of the Service;

(b)
such monies or assets as may accrue to ,

the Service in the course of the

exercise of its powers or the

performance of its functions under this

Act; and

(c)
all monies from any other source

provided or donated to the Service.

(2)
Monies donated to the Service under

subsection (1)(c) shall, subject to the provisions of this

Act, be disclosed and reported in accordance with the

law relating to public finance.

(3)
The funds of the Service shall be in a

separate vote.

71.
The Service shall cause to be kept all books

and records of account of its revenue' and expenditure

in accordance with the Public Finance Management

Act, 2012.

No. 28

Funds of the

Service.

Accounts and

audits.

PART IX – MISCELLANEOUS PROVISIONS

72.
Subject to Article 35 of the Constitution and

any other written law, the Cabinet Secretary shall, in

consultation with the Director-General, by regulations

Protection of

classified
information,

records, etc.

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prescribe

procedures

for the

classification,

declassification, protection, and destruction of

classified information and other records held by the

Service.

Protection of

Director-General

and members of

Service for acts

done in good faith.

Duty to co-operate.

General Penalty.

Extraterritorial

application of the

Act.

73. Proceedings shall not lie against the Director-

General or any member of the Service in respect of

anything done or omitted to be done in good faith in

the performance of the functions of the Service or the

exercise of the powers of the Service under this Act.

74.
(1) It shall be the duty of every person, State

organ, State department or agency or public entity to

afford the Service the co-operation and assistance

necessary to enable it perform its functions under the

Constitution, this
Act or
any other written law.

(2) It shall be the duty of every State organ,

State department, State agency or public entity that is

in possession of national security intelligence or other

intelligence related information which may be of value

to the Service for the purposes of performing its

functions under this
Act to
transmit that intelligence

and information to the Service without delay.

75.
A person who is convicted of an offence

under this Act for which no penalty is expressly

provided shall be liable to imprisonment for a term. not

exceeding three years or to a fine not exceeding five

hundred thousand shillings or to both.

76.
(1) Any act, omission or other conduct

constituting an offence under this Act, shall constitute

an offence even if the act, omission or conduct takes

place outside Kenya.

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(2) The provisions of this Act shall apply to the

Director-General and members of the Service within

and outside Kenya.

77.
The Director-General shall, within three

Annual report.

months after the end of each calendar year, furnish the

President, the Cabinet Secretary and the National

Security Council with a report of the activities of the

Service during that year.
78.
(1)
The Cabinet Secretary may, in

consultation with the Council make regulations

generally prescribing anything required by this Act to

be prescribed or generally for the better carrying out

of the provisions of this Act.

(2) Regulations made under subsection (1)

relating to members of the Service shall not be

published in the Gazette, but shall be notified to the

members of the Service to whom they apply in such

manner as the Cabinet Secretary may in consultation

with the Director-General determine.
79.
(1) Notwithstanding the provisions of section

78(1), the Council may make regulations providing

for—

(a)
the terms and conditions of service of

the members of the Service subject to

section 21 and 23;

(b)
the appointment, seniority in rank or

grade,

posting,

transfer

and

promotion of members of the Service

subject to section 21 and 23;

Regulations

generally.

Regulations by the

Council.

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(c)
the distribution, organization and

duties of the Service;

(d) operational matters of the Service;

(e) personal and document security;

(1) protective and physical security;

(g)
the control, issuance, storage and use

of firearms and ammunition in the

Service;

(h) training of members of the Service;

(i)
the discipline in the Service subject

to section 23;

(j)
the determination of grievances in the

Service;

(k)
the administration and management

of the funds and assets of the

Service; and

Regulations by the

Cabinet Secretary.

(1) affirmative action within the Service.

(2) Regulations made under this section shall not
be published in the Gazette but shall be notified to the

members of the Service to whom they apply in such

manner as the Director-General shall determine.

80.
Notwithstanding the provisions of section

79(1), the Cabinet Secretary may make regulations

generally providing for—

(a) the protection, classification and destruction of

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classified information and records;

(b)
the discharge of functions of the Council; and

(c)
the discharge of functions of the Board.

81.(1) Every person who immediately before the
commencement of this Act, was a member of staff or

employee of the National Security Intelligence Service

established under the National Security Intelligence

Service Act shall, at the commencement of this Act, be
deemed to be an officer or employee of the Service.

(2)
Subject to section 31(2) of the Sixth Schedule

to the Constitution, a person who immediately before

the commencement of this Act was a Director-General

of the National Security Intelligence Service shall

continue to hold office for the unexpired period of the

term.

(3)
A person who immediately before tne

commencement of this Act was an employee of

Government seconded to the Service, shall, upon

commencement of this Act be deemed to have been

seconded to the Service under this Act.

(4)
Anything done, including any regulation made

or directive or instruction issued or other

administrative measure taken or any contract entered

into or any obligation incurred under the National

Security Intelligence Service. Act or any other law

repealed by this Act and in force immediately before

the commencement of this Act, shall remain in force

and shall be deemed to have been made, issued, taken,

entered, into or incurred, as the case may be, under

this
Act.

l'ransitional and

aving provisions.

'4o. 11 of 1998,

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(5)
All Service Orders, Rules or Regulations

existing before the commencement of this Act shall be

reviewed, amended, or revised to conform to the

provisions of the Constitution and this Act within

twelve months after coming into force of this Act.

(6)
Until the orders, rules or regulations or other

instruments made in exercise of a power conferred by

a written law applicable and having the force of law

are-'amended in accordance with subsection (5), they

shall apply and be construed with such alterations,

qualifications and exceptions as may be necessary to

bring them in conformity with the Constitution and

this Act.

(7)
Any pension scheme, medical scheme existing

immediately before the commencement of this Apt

shall continue existing and shall be deemed to hae

been established.in accordance with this Act.

(8)
All property, assets, rights and liabilities,

obligations, agreements and other arrangements

existing at the commencement of this Act and vested

in, acquired, incurred or entered into by or on behalf

of the National Security Intelligence Service shall

upon commencement of this Act be deemed to have
been vested in or to have been acquired, incurred or

entered into by or on behalf of the Service to the
.
same

extent as they were enforceable by or against the

Service before the commencement of this Act.

(9)
Any reference to the National, Security

Intelligence Service Act under any written law shall

be construed to as a reference to this Act.

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(10) The provisions of section 7 are suspended

until the expiry of the term of office of the person who

was a Director-General of the Service at the

commencement of this Act.

(11)
The provisions of section 15(2) (b) are

suspended until the expiry of a period of five years

from the date of commencement of this Act.

(12)
The provisions of this Act shall apply without
prejudice to the appointment and terms and conditions
of service of the Director-General and members of the

Service in office at the commencement of this Act.

82.
The National Security Intelligence Service

Act is hereby repealed.

FIRST SCHEDULE

(s. 5(4))

USE OF FIREARMS

A-CONDITIONS AS TO THE USE OF

FIREARMS

1.
A member of the service shall use a firearm'

only where less extreme means are inadequate and for

the following purposes —

(a)
saving or protecting the life of the

member of the 'Service or any other

person; and

(b)
in, self-defence or in defence of another

Repeal of No.11 of

1998.

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person against imminent threat of life

or serious injury.

2.
A member of the Service who intends to use a

firearm shall identify himself or herself and give a

clear warning of his or her intention to use a firearm,

with sufficient time for the warning to be observed,

except—

(a)
where doing so would place the

member of the Service or other person

at risk of death or serious harm; or

(b)
if it would• be inappropriate in the

circumstances.

3.
A member of the Service who uses a firearm

shall, whether or not a person is injured as a result of

such use, report the matter to his or her superior.

4.
Where the use of a firearm results in death or

serious injury to a petson, the member of the Service

in charge or a direct superior of the member who

caused the death or injury shall report the matter to the

Director-General or other relevant authority who shall

investigate the matter.

5.
The Inspector-General is not precluded by

virtue of paragraph (4) from conducting investigations

into the matter.

6.
A member of the Service who makes a report

to the Director-General or any other relevant authority

in accordance with paragraph (4) shall—

(a) secure the scene of the act for purposes

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of carrying out investigations; and

(b) notify the next of kin, their relative or

friend of the death or injury as soon as

reasonably
.
practical.

7.(1) The Cabinet Secretary shall, in consultation

with the Director-General, make further regulations on
the use of firearms under this Act.

(2) Notwithstanding the

generality of

subparagraph (1), the regulations shall —

(a)
prescribe- the circumstances under

which a member of the Service may

carry firearms and the type of firearms

and ammunition permitted;

(b)
regulate the control, storage and issuing

of firearms, including procedures that

ensure that officers are accountable for

the weapons and ammunition issued to

them;

(c)
regulate the selection, training and

testing of members of the Service

authorised to carry firearmsincludin

techniques that could diffuse

and reduce the likelihood of the need to

use force;

(d)
provide for the testing of members of

the Service carrying fire arms at regular

intervals, but at least once a year and

consequences where a member refuses

to submit to the tests; and

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ke) provide for a reporting system

whenever a member of the Service uses

a firearm in the performance of his or

her duty.

B – SPECIFIC RESPONSIBILITIES OF

SUPERIORS

1.
The Director-General shall put in place

measures to prevent the unlawful use of force or

firearms.

2.
A superior officer shall, where an officer of the

Service uses force or a firearm contrary to the

provisions of this Act, submit a report to the Director-

General or such other relevant authority.

3.
(1) A member of the Service who fails to

comply with an order requiring him to use unlawful

force or a firearm contrary to this
Act
does not commit

a disciplinary offence and shall not be penalised for

such refusal.

(2) A member of the Service who issues an order

for the use of force or a firearm contrary to the

provisions of this Act commits a disciplinary offence.

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SECOND SCHEDULE

(s. 10(3))

TRIBUNAL ON REMOVAL FROM OFFICE OF
THE DIRECTOR-GENERAL
1.
A person desiring the removal of the Director-

General may present a petition to the Public Service
Commission in writing, setting out the alleged facts

,constituting the grounds for the removal of the

Director-General.

2.
The Public Service•Commission shall consider

the petition and, if it is satisfied that it discloses the

existence of a ground for removal under section 10, it

shall send the petition to the President.
3.
On receipt and examination of the petition, the

President shall, within fourteen days, suspend the

Director-General from office pending action by the
President in accordance with paragraph 4 and shall,

acting in accordance with the advice of the Public

Service Commission, appoint a tribunal consisting

of—

(a)
two members appointed from among

persons who hold or have held office

as a judge of a superior court, or who

are qualified to be appointed as such;

(b)
one person who is an advocate of the

High Court of Kenya of not less than.

fifteen years standing;

(c)
one person who has served with

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2012

distinction in a national security

organ; and

(d) one person with experience in public

affairs.

4.
The tribunal shall inquire into the matter

expeditiously and report on the facts and make

recommendations to the President, who shall act in

accordance with the recommendations of the tribunal.
5. A Director-General who is suspended from office

under paragraph 3 shall be entitled to half of his or her

remuneration pending his removal from, or

reinstatement in, office.

6.
A tribunal appointed under paragraph 3 shall

elect a chairperson from among its members.

7.
A tribunal appointed under paragraph 3 shall

regulate its own proceedings.

8.
Any person dissatisfied with the findings of the

Public Service Commission may appeal to the High

Court.

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No. 28

THIRD SCHEDULE

(s. 19(1))

OATHS AND AFFIRMATIONS

OATH/AFFIRMATION OF ALLEGIANCE AND
SECRECY FOR DIRECTOR GENERAL

I

(full

names)DO HEREBY SWEAR BY THE ALMIGHTY

GOD/SOLEMNLY AND SINCERELY AFFIRM

THAT I shall be faithful and bear true allegiance to the

Constitution and Republic of Kenya; THAT I will at

all times and to the best of my ability obey, protect,

preserve and defend the Constitution of the Republic

of Kenya and all other laws of the Republic; THAT I

will protect and uphold the sovereignty , integrity and

dignity of the people of the Republic of Kenya:

THAT I will diligently serve the people of the

Republic of Kenya without fear, favour, bias, affection

or ill will. THAT in the exercise of the functions

entrusted upon me, I will at all times subject myself to

the Constitution of the Republic of Kenya, the

National Intelligence Service Act and all other laws
relating now or in the future in force relating to my

appointment in the National Intelligence. Service; SO

HELP ME GOD.

SWORN/AFFIRMED

by

the

said

at

this

day

of

20

Signature

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National Intelligence Service

2012

BEFORE

OATH/AFFIRMATION OF ALLEGIANCE AND
SECRECY BY MEMBERS OF THE SERVICE

I.

.(full names) DO HEREBY SWEAR BY THE

ALMIGHTY GOD/SOLEMNLY AND SINCERELY

AFFIRM THAT I shall be faithful and bear true

allegiance to the Constitution and Republic of Kenya

during my service in the National Intelligence Service;

THAT I will at all times do my best to preserve the

national security of Kenya; THAT I shall discharge all

the duties devolving upon the by virtue of my

appointment according to law without fear, favour,

affection or THAT I will not, without due

authority, disclose or make known to any person any

information acquired by me by reason of the duties

performed by me on behalf or under the direction of

National Intelligence Service or by reason of any
office or employment held by me pursuant to the

National Intelligence Service Act. THAT I shall

subject myself to the Constitution, the National

Intelligence Service Act and to all other laws now or

in the future in force relating to my service in the

National Intelligence Service; SO HELP ME GOD.

SWORN/AFFIRMED

by

the

said

at

this

day

of

20

1621

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No. 28

Signature

BEFORE

FOURTH SCHEDULE

(s.
64(8))

CONDUCT OF BUSINESS AND AFFAIRS OF
THE NATIONAL INTELLIGENCE SERVICE

COUNCIL

1.
The Council shall meet as often as may be

necessary for the dispatch of its business

but shall hold at least one meeting in each

quarter in every financial year.

2. A meeting of the Council shall be held on

such date and at such time as the Council

shall decide.

3.
The chairperson shall, on the written

application of one-third of the members of

the Council, convene a special meeting of

the Council.

4.
Unless the majority of the total

membership 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.

5.
The quorum for the conduct of business at

a meeting of the CQuncil shall be five

members but the quorum of the Council

shall not be properly constituted in the

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2012

absence of the Cabinet Secretary and the

Director General.

6.
The chairperson shall preside at every

meeting of Council at which he or she is

present and in the absence of the

chairperson at a meeting, the members

present shall elect one of their numbers

who shall, with respect to that meeting and

the business transacted thereat, have all the
powers of the chairperson.

7.
Unless a unanimous decision is reached, a

decision on any matter before the Council

shall be by concurrence-of a majority of all

the members.

8.
Subject to paragraph (5), no proceedings

of the Council shall be invalid by reason

only of a vacancy among the members

thereof.

9.
Unless otherwise provided by or under any

written law, all instruments made by and
decisions of the Council shall be signified

in writing under the hand of the

chairperson and the secretary.

10.
The Council shall cause minutes of all

proceedings of meetings of the Council to

be entered in books for that purpose.

11.
If any person is present at a meeting of the

Council or any committee at which any

matter is the subject of consideration and

in which matter that person or that

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person's spouse is directly or indirectly

interested in a private capacity, that person

shall as soon as is practicable after the

commencement of the meeting, declare

such interest and shall not, unless the

Council or committee otherwise directs,

take part in any consideration or

discussion of, or vote on any question

touching such matter.

12.
A disclosure of interest made under

subsection (11) shall be recorded in the

minutes of the meeting at which it is made.

13.
A member of the Council shall not transact

any business or trade with the National

Intelligence Service.

14.
A member of the Council who is subject of

a discussion in a meeting of the Council

shall be disqualified from attending,

participating and voting on the matter.

No. 28