THE KENYA COAST GUARD SERVICE BILL, 2017

PART   I- PRELIMINARY 

1.      This Act may be cited as the Kenya Coast Guard Service Act, 2017, and shall commence on such date as the Cabinet Secretary may, by notice in the Gazette appoint.

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

"Cabinet Secretary" means the Cabinet Secretary responsible for matters  related to internal security;

"chairperson" means the chairperson of the Council of the Service appointed under section 10;

"confidential information" means information whose unauthorized disclosure would be prejudicial to national interests;

"Council"   means the Council  of the Service established under section 10;

"Director-General'' means the Director-General of the Service appointed under section 15;

"Financial year" means the period of twelve .months ending on the 30th June;

"Kenya Defence Forces" means the Kenya Defence Forces established by Article 241 of the Constitution;

"narcotic drugs" means any drugs listed in the First

Schedule    to      the     Narcotic     Drugs         and    Psychotropic Substances (Control) Act, 1 994

"national security organ" means a national security organ established by Article 239( 1) of the Constitution;

"National Security Council" means the National Security Council established by Article 240 of the Constitution;

 

"officer"  means  a member of  the  Service  who  holds any of the ranks prescribed in Part I of the First Schedule;

‘‘prohibited plants’’ means any of the plants listed in

the Third Schedule to the Narcotic  Drugs and Psychotropic Substances (Control) Act, 1994;

"psychotropic substances" means any of the substances listed in the Second Schedule to the Narcotic Drugs and  Psychotropic Substances (Control) Act, 1994;

"rating" means member of the  Service holding any of the ranks prescribes in Part II  the First Schedule;

''restricted   information"   means information   which requires security protection other than information that is

 deemed to be top secret, secret or confidential;

 

’’secret information" means information   whose unauthorized disclosure would cause. Serious injury to national security;

"Service" means the Kenya Coast Guard' Service established by section 5;

"Service stores" means-

(a)     any    chattels  or   goods of any   description belonging to the Service  which have been issued to members of the Service for the purposes of the

Service or are held in store for the purpose of being so issued to members of the Service; and

(b)     any chattels or goods which had belonged to the Service,  had  been  issued  to  members  of  the Service or had been held for the purposes of the Service at some past time;

''Technical Committee" means the Technical

Committee of the Service established under section 13;

"territorial waters" means the inland waters, internal waters, territorial  sea and contiguous zone of Kenya;

 

 ''top secret information" means information whose unauthorised disclosure would   cause   especially grave damage to national    security;

"uniform" includes apparel, kit, badge, decoration, insignia; wound stripe, emblem, brooch,, costume or any other distinctive item as the Council may determine; and,    

"vessel" means any  ship; boat, sailing  vessel or other · description of vessel used in navigation.

 

3.      The object of this Act is to establish the Kenya

Coast Guard Service.   

4. The Service shall observe and uphold the national values and principles of governance set out in Article 10(2), the Bill of Rights enshrined in Chapter Four, the values and principles of public service set out in Article 232(1) and the principles of national security set out in Article 238(2) of the Constitution and shall-

(a)     strive for  the highest standards of professionalism and discipline;

(b)     promote and practice transparency;

(c)     comply with constitutional standards of human rights and fundamental freedoms;

(d)     reflect the diversity of Kenya and

(e)     Insofar as it is practicable, ensure that not more than two-thirds of the members of the Service shall be of the same gender.

PART II-ESTABLISHMENT AND FUNCTIONS OF THE SERVICE

5.      (1) There is established a service to be known as the Kenya Coast Guard  Service.

(2) The composition and command of the Service shall reflect the diversity of  Kenya.

6.      (l) the Service shall be. composed of-

(a)     the disciplined and uniformed component; and

(b)     the civilian component.

(2) · The disciplined and uniformed component shall comprise of-

(a)     members who shall be seconded to the Service from national security organs; and

(b)     members who shall be recited into the Service

from among persons who may have retired early

from or otherwise honourably left the service of national security organs:

 

(3}The civilian component shall comprise of- .

(a)     members who shall be seconded to the Service from the public service:         ··

Provided that the members seconded to the Service shall not be seconded by national security organs; and

(b)     members who shall be recruited into the-Service .

(4) Each  member  of  the  Service shall  execute  all lawful order of the Insprector-General or any other member of  the   Service surpassing such member in rank or qualification.

 

7. (1) The National Security Council shall determine and review the maximum number of members of the Service.

(2) The disciplined and uniformed component of the Service  shall consist . of officers and ratings of the  ranks specified in the First Schedule. 

(3) The officers and ratings of the disciplined and uniformed component shall have seniority according to the ranks specified in the First Schedule.

    (4) The Service shall establish such operational units, support units and formations as the Council may determine.

8.      (1) The Service shall, subject to this Act or any · other written law, be deployed in the territorial waters-

(a)     to enforce maritime security and safety;

(b)     to enforce pollution control;

(c)     to enforce sanitation measures;

(d)     to prosecute maritime offenders;

(e)     for port and coastal security;

(f)   for search and rescue;

(g)     for the protection of maritime resources including fisheries;

(h)     for the protection of archaeological or historical objects or sites; and      ,

(i)      to  perform  any  other function  that  may be conferred by this Act or any other  written law.

 

(2) The Service shall co-operate with and assist other public authorities during emergencies or disasters or in the execution of those public authorities mandates in the territorial waters.

(3) The National Security Council may deploy the disciplined uniformed component of the Service to support the Kenya Defence Forces in times of war.

 

9. (1) The Service shall have the power to do all the things necessary for the performance of its functions under this  Act or any other written law.

(2)  Despite the  generality of  subsection  (1),  the Service shall have the power, within the territorial  waters,  to

(a)     receive        and  consider       any    report         of      the commission of an offence;

(b)     stop, enter, board, inspect or search any structure, place, vessel or aircraft engaged in or suspected to be engaged in any unlawful activity;

(c)     seize or detain any vessel or aircraft engaged in or suspected to be engaged in any unlawful activity;

(d)     demand the production of · any license, permit, record or any other relevant document and to examine such licence, permit; record or document

or make  copies  or  take  extracts  from  such licence, permit, record or document;

(e)     investigate any offence which it has reason to believe is being committed, is about to be committed or has been committed;

(f)     exercise the right of hot pursuit;

(g)     examine  and seize · any  fish,  article;  device,

á        goods, vessel, aircraft or any other item it has reason to believe is connected to the commission of an offence;

(h)     subject to the provisions of this Act or any other written law, dispose of any fish; article, device,

á        goods, vessel, aircraft or any other item that is connected to the commission of an offence;

(i) arrest any person who it has reason to believe has committed  an offence:

Provided that the arrested person shall be handed over

to a member of the National Police Service as soon as is

practicable;

 (j)      conduct research or any study necessary for · the performance of its  functions;

(k) record statements or make inquiries, inspections or examinations as may be necessary under this Act or any other written law;

 (1)    assist in environmental protection;  and

(m) expel any vessel or aircraft whose presence in the ' territorial , waters is detrimental to the  national

interests of Kenya or is likely to endanger order and safety in the territorial waters.

(3) The Service shall not stop, enter, board,  search, inspect or detain  a vessel or aircraft in the territorial waters

if the passage of the vessel or aircraft in the territorial waters is ,innocent passage.

      (4)  For the purposes of this  section,  "innocent passage"  means in the territorial waters that is not prejudicial to the peace, good order or security of Kenya.

(5)  For the  purposes of  subsection  (4), an  act  is prejudicial to the peace, good order or security of Kenya if is-

(a)     a threat or the use of force against  the sovereignty, territorial integrity or independence of Kenya;'

(b)     any act which is in any way a violation of the principles of international law;

(c)  any unlawful exercise or practice with weapons of any kind;

(d)     any act aimed at collecting information  whose  collection is prejudicial to the defence or security of Kenya;

(e)     propaganda aimed , at affecting the peace, defence or security of Kenya;

(f}  the  unlawful  launching,  lading or taking  on board of any military device;        

(g)   the loading or   offloading  of  any  commodity, currency or person contrary to the provisions of this Act or any other written law;

(h)     any act of pollution of the marine environment;

(i)      the conducting of unauthorised research or  survey activities;

(j) lllegal fishing activities;

(k)   the trafficking of arms, persons, narcotic drugs, psychotropic substances or prohibited plants;

(1)    any act aimed at interfering with any systems of communication   or any other facilities or installations of Kenya; or

(m) any activity not having a direct bearing on The passage by any  vessel or aircraft in the territorial waters.

 

10     (1) There is established the Council of the Kenya

Coast Guard  Service.   (2)The Council shall consist of-

(a)     The Cabinet Secretary responsible for matters related to internal security who shall be its chairperson;            ·

(b)     the  Cabinet Secretary  responsible for  matters relating to finance;

(c)     the Cabinet  Secretary  responsible  for  matters· · relating to defence;

(d)     the  Cabinet  Secretary  responsible  for  matters relating to transport;

(e)     the Cabinet  Secretary · responsible  for  matters relating.to fisheries;

(0        the Cabinet  Secretary  responsible  for  matters relating to environment;

(g)     the  Attorney- general;

(h)     the Chief of the Kenya Defence Forces;

(i)      the  Inspector-General of the  National  Police Service; and

(j)      the Director -General of the National Intelligence Service.    ·

(3) The Director-General shall be the secretary to the Council and shall be responsible for-

(a) communicating the decisions of the Council; and

(b)   performing any   other  functions   that   may   be assigned by the Council.

(4) The decisions or directions of the Council shall be signified under the hand of the chairperson and the Director-General.

11. (1) The Council shall-

(a)   be responsible for the overall policy, control and

supervision of the Service;

(b)  receive and  act  on  reports submitted  to  the Council  by  the  Cabinet  Secretary, the  Director­ General and the Technical Committee;

(c)     upon  application,  review penalties imposed  on members    of      the  Service after undergoing disciplinary proceedings in accordance with this Act;

(d)     receive and consider the budget estimates of  the Service;

(e)     recruit,  transfer  or  promote  members   of  the Service;

 (f)  approve the appointments, posting or promotions of senior officers of the Service;

(g)   commission  research  related to the protection  of territorial waters;

 (h)           commission research related to the   better functioning of the Service;

(i)      advise the President on any matter relating to and affecting the Service; and

(j)  perform any other functions conferred by this Act or  any other written law          ·           ·

(2)  The  Council  may,  in  writing,  delegate  to  the Director-General the power to promote, transfer or retire ratings.

(3)  A  delegation  by  the  Council  µnder  subsection (2)

(a)     shall be  subject to any conditions the Council may impose;

(b)     shall not divest  the Council of its responsibility concerning the exercise of the delegated power; and

(c)     may be withdrawn at any time and,  if a  delegated power is withdrawn, any decision · made by  the Director-General  in  relation  to  the  delegated · power  may  be  withdrawn    or  varied  by  the Council.

12.    (1) The business and affairs of the Council shall be conducted in accordance with the Second Schedule.

(2)     Except as provided in this Act the Council shall regulate its own procedure.

(3)     The Council may permit any other person to attend its meetings and participate in its deliberations but that person shall not participate in the making of any of its decisions.

13 . (1) There is established the Technical Committee of the Service.

(2) The Technical Committee shall consist of

(a)     the Principal Secretary in the ministry responsible for matters relating to internal security who shall be its chairperson;

(b)     the Principal Secretary in the ministry responsible for matters relating to finance;        

(c)     the Principal Secretary in the ministry responsible for matters relating to defence;

(d)     the Principal Secretary in the  ministry responsible for matters relating to transport;     

(e)     the Principal Secretary in the ministry responsible for matters relating to fisheries;

(f)      the Principal Secretary in the ministry responsible for matters relating to the environment;

(g)     the Chief of the Kenya Defence Forces;

(h)  the  Inspector - general   of  the   National   Police  Service;      

 (i)  the Director-General of the National Intelligence Service;

(j) the Solicitor-General;

(k) the  Director-General of  the   Kenya   Maritime Authority;

(I)      the   Managing     Director   of  the   Kenya Ports  Authority;

(m)  the Director - General   of   the   Kenya   Wildlife Service; and        ·

(n)  the DirectorGeneral,  who  shall  be  the  secretary to the Technical Committee.

 14.(1) The Technical Committee shall –

(a)     advise   the   Council   on   policy   and   financial matters relating to the Service;

(b)     Oversee  the  management   and .administration   of the Service;

(c)     receive and act on the reports of the Director-General;        ·

(d)   on reference to it by the  Director-General, advise the Director-General on any matter;

(e)     make recommendations  to  the  Council  on any matter relating to the functions of the Service; and'

(f)     perform any other function conferred on it by this Act or any other written law.

 (2) Subject to the provisions of this Act, the Technical Committee shall regulate its own procedure.

 

15 (1) There shall be a  Director-General of the Service who shall be a State officer within the meaning contemplated in Article 260 of the Constitution.

 (2) The Director-General shall-

(a) subject to the general directions of the Council, be responsible for the day to day administration; control and management of the Service;

(b)     command  the     disciplined  and    uniformed component of   the Service;

(c)     be responsible  for the effective utilisation of the resources of the Service;       

(d)     be responsible  for the training, education  and deployment of the members  of the Service;

(e)       at least one in each year, prepare and submit to the Council a report On the activities of the Service;

(f) oversee the implementation of the policies of the Service;        

(g)     at least three months before the end of the financial year, prepare and submit to the Council the budget estimates of the Service for its. consideration; and

(h)     perform  any other functions conferred by this Act or any other written law

 

16.   (1)      The Director General may in writing,

delegate the performance of  any  function or exercise of a power conferred upon him or her by this Act or any other written law  to a member of the service.

(2) A delegation under this section-

(a)     shall be subject to any conditions the Director­ General may impose; ·

(b)     shall not relieve the Director-General of responsibility   concerning   the  exercise of   the delegated    function or       performance of  the  delegated power; and                                ·

(c)     may  be  withdrawn at  any  time  and  if  the delegated power is withdrawn any decision made by the member of the service to whom the performance of the function or exercise  of ·the power has been delegated may be withdrawn or varied by the Director General.

(4)     The   Director-General shall   not    assign   the · performance  of  a function  or  exercise  of a power that  is exercisable by an officer of a specific rank, seniority  or qualification  to  an  officer  who  does not  hold a  rank, seniority or qualification that is not contemplated  by this Act or any other written law.

 

17 (1) The President shall appoint a qualified person to be the Director – General -

(2)  A person is qualified to be appointed as the

Director -General if that person-

 

(a)     is a Kenyan citizen;

(b)     is or has been a member of, or an officer serving in a national   Security organ;

(c)     is not  a member 9f the National. Assembly  or Senate;                                .

(d)     is not a member of  a county assembly;

(j3)    is not a Governor or Deputy- Govemor;

(f} has not served as a member of the National Assembly, Senate,a county assemply, trade union or an office in a political party  in the preceding ten years;

(g)     has not been convicted of  any criminal offence;

(h)     has  not  been  dishonourably  discharged  from  a national security organ;     ·

(i)      has not been otherwise dismissed from any office in the public service; and

(g)   is not an undischarged bankrupt.

18.    A person appointed as the Director - General shall serve for a term of four years.

19.  The President m.ay remove, retire or redeploy the Director - General at any time before the expiry of his or her tenure.

20 (1) The office of Director General shall become vacant if the holder -       

(a)     dies;

(b)     resigns from office in writing to the President;  or

(c)     is removed or  retired   from  office   by   the President.                       

(2) Where a vacancy occurs in the office of Director­ General, the President shall fill the vacancy in accordance with the provisions of section 17

21.    A person appointed as Director -General shall on his or her appointment, take and subscribe to the oath of office set out in the Third Schedule.

22.    (1) The Council  shall, in consultation with the  Public Service Commission, develop the criteria for the      

recruitment, promotion, transfer and retirement of members of the Service.

(2) The Council shall comply with the provisions of the Constitution in the development of the criteria for the recruitment promotion, transfer and retirement of members of the Service.

(3) The Council may appoint a suitable public officer, public institution or public agency for the purposes of the recruitment of the members of the Service,

(4) Every person recruited to and appointed as a member of the Service shall on his or her appointment, take and subscribe to the oath of office set out in the Third Schedule.

(5) The oath of office taken or subscribed to by a member of the Service shall be taken and subscribed to before an officer of a rank not lower than that of a Sub­ Lieutenant.

 

23.    (1) The Sa laries and Remuneration Commission Shall,  in accordance with the provisions of Article 230(4) of      

the Constitution, set and regularly review the remuneration and benefits of the Director-General.

(2) The Council shall, on the advice of the Salaries  and Remuneration Commission; determine the remuneration and benefits of the members of the Service other than those of the Director-General.

(3) The Council shall, in consultation with the Public Service Commission, determine  any  other  terms  and

conditions of service for the members of the Service.

 

PART  III- DISCIPLINE

24.    (1) Every member of the disciplined and uniformed component of the Service shall be subject to the provisions of this Part.

(2)     A member of the disciplined and uniformed component of the Service who commits any of the acts Set out in the Fourth Schedule commits  an offence against discipline,

(3)     A member of the disciplined and uniformed component of the Service who commits an offence under

 any other written law shall be liable to proceedings in a court of law in accordance with the provisions of the law

under  which the offence was committed.

(4) Despite the provisions of subsection (3), the Director-General or an officer authorised in writing by the Director-General may take such disciplinary action as may be appropriate in the circumstances against a member of the disciplined and uniformed component of the Service who has been accused of having committed an offence under this Act or any other written law.

25 (1) A member of the disciplined and uniformed component of the Service who commits an offence against discipline and shall, on conviction, be liable to-

(a)     a reprimand;

(b)     suspension from duty;

(c) an order to pay restitution;

(d) stoppage of salary increments by the Director- General or officer authorised in writing by the Director-General for a period that shall not exceed one year;

(e)     reduction in rank;

(f)     dismissal from service; or

{g)    any combination of the penalties set out in this subsection.

(2)     The Director-General shall confirm the penalty of reduction in rank or dismissal from service if the penalty was imposed by an officer authorised by the Director-

General in accordance with this Act.        ·

(3)     Where        the     Director-General or      an      officer

authorised by the Dinctor-General imposes a penalty on a member of the Service, the Director-General or that officer shall record the penalty in a register maintained for the purpose   stating-

 (a)   the name of the member of the Service against whom the penalty has been imposed;

(b)     the nature of  the offence;

(c)     the date or dates if known when the offence was committed;

(d)     the penalty imposed; and

(e)     the date the penalty was imposed.

(4)     The Director-General shall submit to the Council for approval rules for the procedures to be followed during disciplinary proceedings against a member of the disciplined and uniformed component of the Service accused of committing an offence against discipline.

(5)     A  member   of   the   disciplined   and   uniformed component  of  the  Service  accused  of  committing  an offence   against discipline         may,         during        disciplinary proceedings, be accompanied by an officer of the member's choice for assistance and support:

Provided that the officer accompanying the accused member shall not be of a rank superior to or of greater qualifications than the officer in charge of the disciplinary proceedings.

(6)     A member of the disciplined and uniformed component of the Service accused  of  committing  an offence  against  discipline  may  in  accordance  with  rules made by the Director-General and approved by the Council for the purpose, apply for a review of the penalty imposed against him or her- 

(a)     to the Council if the penalty was imposed by Director-General;

(b)     to   the   Director-General       if   the   penalty    was imposed by an officer authorized by the Director- · General.

26. (1) The Director-General or an officer authorised by the Director-General for the purposes of disciplinary proceedings under this Act may, in relation to any matter connected with the proceedings -

(a)     summon and examine any member of the Service on oath or affirmation; or

(b)     require the production  of relevant  documents by any member of the Service.                ·,

(2)  A member   of   the disciplined   and  uniformed component of  the  Service who has been summoned  as a

witness or is required to produce relevant documents under subsection (1) commits an offence against discipline if -

(a) he or she fails or refuses to  attend at the time and place specified in the summons or having attended refuses to answer any questions that are lawfully put to him or her; 

 (b)  he or she fails  without  reasonable   cause to produce any relevant document:

Provided     that a member   of   the   disciplined and uniformed     component   of  the  service   who   has   been

summoned as a witness or is required to produce relevant documents under subsection ( 1) shall not answer questions or produce documents that may incriminate him or her in the commission of an offence.

 27. (1) A  fine  imposed on    a _   member of the disciplined  and  uniformed  component  of  the  Service  in accordance  with  the  provisions  of section  25  shall  be recoverable from the monthly salary  payable  to  that member.     ·        ·       ·

(2) Despite the provisions       of subsection        (1), a deduction or the aggregate of deductions if there is more

than   one  fine outstanding  at  the   same  time   from the monthly salary of a member of the Service  shall not exceed

more than one-fourth of the monthly salary payable to the  member.     

28. (l) Despite the provisions  of any other written law where a mernber of the disciplined and uniformed component of the service pawns, sells, loses through negligence, makes away with, or wilfully or negligently damage any article or property -        ·        ·

(a) entrusted to him or her;

(b)   is in  the  lawful . custody   of  the   Service  and supplied to him or her; or

(c)  seized or taken charge of by him or her;

he or she may, in addition to any other penalty that may be imposed under that other Written law, be ordered to make  good,   either  wholly  or partially,  the  value  of  such article or property or the amount of  such loss or  damage and such value or such  amount may be recovered by deduction from  his  or her  monthly  salary  including  from allowances other than his or her rent allowance and trade pay.

(2)  Despite the provisions of  subsection  (1),  any member of the disciplined and uniformed component of the  Service who pawns, sells, loses by negligence, makes away with,  or willfully  or  negligently  damages  any firearm ammunition, accoutrement or uniform commits an  offence against discipline  and shall be liable to any penalty  or combination of penalties set out in  section 25(1).

 29. (l)  A police officer may, on the reasonable suspicion that a person has deserted the Service or is absent without leave from the Service, arrest that person and take him or her before a magistrate having jurisdiction , in the area in which the person was arrested.

(2)1f a person arrested under subsection (1) admits to have deserted the Service or is absent without leave from the Service and the magistrate is satisfied of the truth of the admission, the magistrate shall cause the person to be

 delivered to the Service for disciplinary action.

(3)If a person arrested under subsection (1) refuses to admit to having deserted the Service or to being absent without leave from the Service or if the magistrate is not satisfied with the admission made in accordance with subsection (2), the magistrate shall consider any evidence and any statement of the accused and may discharge the accused:    Provided that the magistrate shall not discharge the  accused if the accused is in custody for any other lawful reason.

30. (1) A member of the Service shall not subject any person  to torture  or other  cruel, inhuman  or degrading

treatment.

(2)      A member  of  the  Service ,who  subjects  another person to torture commits an offence and shall be liable, on conviction,  to  imprisonment  for   a term  not exceeding twenty- five years.

(3)     A member of  the  Service  who  subjects  another person to cruel, inhuman or degrading  treatment  commits an      offence       and    shall be liable,  on         conviction,  to imprisonment for a term  not exceeding fifteen years

PART IV- OFFENCES GENERALLY

 

31 (l) This  Part  shall apply to any person who is not a member of the Service.       

(2) A person accused of an offence under this Part shall be tried by a subordinate court.       

 

32 · (1) A person commits an offence if that person-                   

(a) assaults, resists or  wilfully obstructs a member of the Service in the performance of his or her duties or any person acting in aid of the member of the Service;

(b) induces or does any act calculated to induce  a member of the Service to neglect or act contrary to duty as a member of the Service; or            

(c) induces or does any act calculated to induce a member of the Service to commit a breach of discipline or an act whereby a lawful order given to the member of the Service or any law with which it is the duty of the member of the Service to comply with may be evaded or infringed, as the case may be

 

(2).A person convicted of an offence under subsection

(1) shall be liable on conviction, to imprisonment for a term not exceeding three years.

 

33. (l)A person commits an offence if that person –

 

(a) procures or persuades a member of the Seririce to desert or  be absent without leave from the Service;

(b) knowing that a member of the Service is about to desert or be absent · without leave from the Service, assists that member of the Service; or

(c) knowing that a person has deserted or is absent without leave from the Service, conceals the member of the service,  assists in  the concealmen of the  member'  rescues   that   member   from custody or assists in the rescue of that member from  custody.

2) A person  convicted of an offence under subsection

(1)     shall be  liable,  on  conviction, to  imprisonment for  a  term not exceeding one year.

34. (1) Any person who acquires any Service stores, solicits or procures any person to dispose of Service stores or acts for any person in the disposing of Service stores commits an offence and shall be liable, on conviction , to imprisonment for a term not exceeding two years.

(2)     A person shall not be liable under subsection (1) if that person proves that the chattels in his or her possession were acquired lawfully after they had been disposed of by the order or the consent of the Service or of some other authorised person or authority who had or he or she had reasonable cause to believe had authority to give such order or consent.

35. (1) A person commits an offence if that person ­

(a)     without lawful authority ,uses or wears any Service uniform, decoration, badge or . insignia of rank, wound stripe or emblem supplied or authorized by  the President  of the Council;

(b)     uses  or  wears  a  uniform,  decoration,  badge. or insignia  of  rank,  wound   stripe  or  emblem  so nearly     resembling       any Service  uniform, decoration,  badge   or  insignia   of  rank,  wound stripe or emblem as to be calculated to deceive;

(c)     falsely presents himself or herself as a person who is or has been entitled to use or wear any Service uniform, decoration, badge or insignia of rank, wound stripe or emblem; or

(d)     purchases  or takes in pawn,  solicits or procures any person to sell or pledge or acts for any person in the selling or pledging of any Service uniform, decoration, badge or insignia rank; wound stripe or emblem awarded to a member of the disciplined and uniformed component of the Service.

(2) A person convicted of an offence under subsection

(1) shall be liable to imprisonment for a term not exceeding one year.

(3) Despite the provisions of subsections (l)(a), (b) or

(c), a person shall not be prohibited from wearing medals, brooches or ornaments representing Service badges. 

 36 (l) A person commits an offence if that person­

(a)     interferes with an aid to navigation  established managed or maintained by the Service; or

   · (b)  sets up an  aid  to navigation  without the  prior written  approval  or  in  breach of  any  term  or condition specified by the Service in the erection . of an aid to navigation for the Service.     ·

(2) A person convicted of an offence under subsection (1) shall be liable to imprisonment for a term not exceeding one year.

       37.   A person who is not  a member of the  service  but uses the       words  "Kenya  Coast  Guard   Service"  or  any  combination thereof  for the purposes  of any trade or by way of any advertisement in a  manner that is likely to . induce any person or the general public to believe that he or she has any connection with or the patronage of the Service commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year.

 

PARTV --LIMITATIONOF RIGHTS OR FUNDAMENTAL FREEDOMS

38. This Part shall apply to all members Of the Service.

   39.   (1) The   limitation of   rights   or   fundamental freedoms under  this  Part,  based  on  human ·  dignity,  is necessary for the purposes of employment in the Service in order to ensure-

(a) the protection of classified information;

(b) the maintenance  and  preservation  of  national security;

(c) the maintenance of  the security and safety of members of the Service;

(d) that the enjoyment of a right or a fundamental freedom by a member of the Service does not prejudice the enjoyment of a right or fundamental freedom by another member;

(e)     good order and discipline in the Service; and

(f) public health and safety.

(2)  A Iimitation of a right or fundamental  freedom · under this Part shall be in compliance with Article 24 of the Constitution and shall-

(a)     ensure the protection of national security, public safety, public order, public health or  morals;

(b)     the protection of   the  rights  and fundamental freedoms    others:

(c)     be   necessary      to  achieve the purposes and objectives of the Service;

(d)     be applied  without discrimination;  and

(e)     not impair the essence of the right or fundamental freedom being limited.         ·           ·           ·

40.    (l)The right to privacy set out in Article 31 of  the Constitution shall be limited in  respect of a member of the Service where-

(a)   the  member's   home   or  property  within,   any Service base • ot Servic.e establishment is to be searched;

(b)   the member's possessions are to be seized;

(c)     information relating to the member's family  or private affairs is required to be revealed; or

(d)     the     member's    communications  are     to      be investigated or interfered with.

(2) A limitation of a member of the Service's right to privacy under subsection (l)(c) shall be made where the membr commit or is . reasonably· suspected · of having committed an offence under this Act or any other written Jaw

41.    (1) The right ofaccess to information as provided for in Article  35(1)  of the Constitution may be limited in respect of classified information or information in the custody of the Service.

(2)     A limitation of the right of access to information under subsection (1) shall be in respect of information, including classified information, held by the Service to  the extent necessary for the protection of the Service from-

(a)     any demand  to furnish an unauthorized person with classified  information;

(b)any disclosure or publishing of information the disclosure or publishing of which  would be prejudicial to national security;

(c) or any disclosure  or publishing of information relating to the operational plans of the Service.

(3)     For the purposes of  this section, "classified information'' includes any information whose disclosure or

publishing would prejudice national security and includes information on Service strategy, doctrine, capability, capacity or deployment             

(4)For the purposes of this section , the categories of

classified  information  include-      ·        ·

(a)     top secret information;

(b)     secret information;

(c)     confidential information; and

. (d)   restricted information.

42.    (l) Despite the  provisions of Article 36 of the

Constitµtion   in relation to the freedom of association, a member of the Service shall not join  or participate in the

Activities of  an  association  as may be  prescribed  in regulations  made under this Act.    

(2) Subsection (1)  shall not apply to the membership of a member of the service in; Or  the participation of that

member in the activities of professional associations.

43 Despite the provisions of Article 37 of the Constitution in relation to the right of members of the Service to assemble, demonstrate, picket or petition public authorities, a member of the service shall not assemble, demonstrate, picket or petition public authorities.

44.    Despite the provisions of Article 41 in relation to the right to fair labour relations, a member of the Service shall not form, join, agitate for or  participate  in  the activities of a trade union or go on strike.

45.    The economic  and social rights.  set ou t in Article  

43  of the Constitution may, in respect of a member of the Service, be  limited, as prescribed  by regulations made under this Act, to the extent  necessary for the training of members of the Service or for the operations of the Service.

PART VI -  FINANCIAL PROVISIONS

46.    The funds of the Service shall consist of -

(a)     monies appropriated by Parliament  for  the purposes of the Service;     

(b)     monies or assets that may accrue to the Service in the performance of its functions or the exercise of its powers under this Act or any other written law; and

(c)     monies lawfully provided or donated to the Service,

47.    (1) The books and records of account of the income, expenditure, assets · and liabilities of the Service shall be kept and maintained in accordance with the Public Finance Management Act, 2012 .

(2)     Within three months after the end of the financial year, the accounting officer in the Ministry  shall submit to

the Auditor-General the accounts of the Service in respect of that financial year to be audited and reported on.

(3)     The accounts of the Service shall be audited and reported on in accordance with the provisions of Articles 226 and 229 of the Constitution and the Public Audit Act, 2015.

PART VII-MISCELLANEOUS REVISIONS

48.    The Council shall, by notice in the Gazette, specify and designate uniforms for the members of the Service.49 A judgment,   decree   or order   given   or  made against a member  of the Service shall not be enforced by the levying of execution on any property of the Service or  for which the Service is responsible in the possession of the member against whom the judgement decree  or order was made.

50 (1) Every member of the disciplined and uniformed component of the Service shall on being recruited and appointed by the Service give the particulars of the place, district. and county in which the member ordinarily resides and the name and address of the member's next of kin and those particulars shall be recorded in a register kept and maintained by the Service for that purpose.     ·

(2)     Where there is a change in the particulars recorded under subsection (l), the member shall notify the Service of  the  change  and  the  Service  shall  make  the  necessary changes in the register:

 

51. The uniforms and decorations issued or authorised to a. member of the Service shall not, On the death of that member, form part of the estate of the member in relation to anY claim by a creditor or for any of the purposes of the administration of the estate of the member and shall be delivered to the Director-General and thereafter disposed of in the manner prescribed by regulations made under this Act.

 

52. (1) The Director-General or any officer authorised by the Director-General in accordance with the provisions of regulations made under this Act may convene

a board , of inquiry to investigate and report on the facts relating to-      ·

(a)     the absence without leave of a member of the disciplined and uniformed  component of  the Service;

(b)     the capture of any member of the Service by an enemy of Kenya;                      .

(c)     the death of any member of the Service if an inquiry into the member's death is not required to be held by a civilian authority; or

(d)     any other matter that may be prescribed by regulations made under this Act.

(2) A board of inquiry convened under subsection (1) shall, if directed to do so by its convening authority, express an opinion on any question that may arise out of any of the matters referred to the board.

(3)     The Director-General or any officer authorised by the Director- General .in writing may convene a board of inquiry to investigate and report in any other matter.

(4)     A board of inquiry shall consist of a number of members as prescribed by regulations made under this Act and be chaired by an officer of the rank of Lieutenant or of a corresponding rank.

(5)     The proceedings and findings of a board of inquiry shall not be admissible against any person in · any disciplinary proceedings.

 

53. (1) If any member of the Service thinks he or she has been wronged  in any way by  member  of . a superior

á        rank, he or she may complain  in writing  to the  Director- General and seek redress for  he wrong.       '

(2) The Director-General shall, on receiving a complaint under subsection (1), investigate the complaint and if the complaint is proven to be true; may grant any redress· which appears to the Director-General to be necessary.

54. (i) A national security organ or the public service or any other public body may second persons to the Service.

(2)     A person seconded to the  Service shall remain a member or employee of the national  security organ, public service or other public body; as the case may be, and shall retain all the privileges and liabilities such membership or employment he or she is entitled or subject to.

 

55 The Cabinet  Secretary  responsible  for  matters   relating to internal security may, by notice in the Gazette and through the Director-General, designate temporary holding areas including vessels for the detention of persons suspected to have commited offences under this Act.

56. (1) The Cabinet Secretary may make such regulations as are necessary  or expedient to give full effect to or for the carrying out of the provisions of this Act including-

(a)     the establishment of a disciplinary mechanism for the members of the civilian component of the Service;          ·

(b)     the associations whose membership or activities a member of the Service may not join or participate in;

(c)     the economic and social rights of members of the Service that may be limited for the . purposes of the training of the members of the Service or the operations of the Service;

(d)     the disposal of the uniforms' and decorations issued or authorised to deceased members of the Service;

(e)  the  convening,  procedure  and membership   of boards of inquiry; and

(f) the establishment of a disciplinary mechanism for

the members of the civilian component of the Service.

(2)     The Cabinet Secretary shall submit to the Public Service Commission for approval any regulations made for the establishment of a disciplinary mechanism for the members of the civilian component of the Service.      

 57(l) The Director- General may  make  general, special or routine standing order with respect to any matter relating to the Service.

(2) Any  standing  orders  made  under  subsection  (1)

   shall be consistent with the provisions  of this Act or any other written law.  ·

(3)     Any standing  orders made under  subsection  (1) shall not be published in the Gazette.

58.   Nothing contained in this. Act shall be deemed to negate or diminish any function, duty or power assigned to any other body or organ under any written law.

 

 

FIRST SCHEDULE

Ranking Structure in the Service

Part I  - Officers ·

l.        Director General

2.      Commodore

3.      Captain

 4   Commander .

  5    Lieutenant Commander

6.      ·  Lieutenant

7.      ·     Sub-Lieutenant

8.      Cadet

Part II-Ratings

1.      Chief Petty Officer Grade I

2.      Chief Petty Officer Grade II

 

THIRD SCHEDULE

Oath of office

 

SS. 21 and 22

I,  do hereby  swear by Almighty  God/do hereby  solemnly and sincerely affirm that-

1.      I will faithfully bear true allegiance to the President as the Commander-in-Chief of the Kenya Defence Forces and to the Republic of Kenya;

2.      I will faithfully serve the President and the Republic as an Officer/Rating of the Kenya Coast Guard Service;

3.      I will obey all laws and lawful orders, regulations, directions and instructions concerning the Kenya Coast Guard. Service;. and

4.      I will discharge all the duties of an Officer/Rating of the Kenya Coast Guard Service according to· the law without fear, favour, affection or ill-will.

....................................................................

t             (Signature or thumb-print of person making oath)

Sworn/Affirmed by the said

····································································

after the oath has been rad over and explained to him/her in the

 

language, which he/she has acknowledged to understand at

· .................·:... on this· ........... day of .................., 20..........

 

(Name and signature of witness)

 

FOURTH SCHEDULE

Offencs against discipline

 

1.      It shall be an offence against discipline for  any officer of the Service. to-        

á        (a) unlawfully strike, or use or threaten to use violence against another officer or any other person;

(b)     use  any obscene, abusive or insulting language  in any form against any officer of the Service;          ·

(c)     use threatening, insubordinate or disrespectful language word, act or demeanor to an officer senior in rank to him or her;

(d)     cause a disturbance at any Service premises;

(e)     be intoxicated while on duty;

(f) Consume any intoxicating liquor, psychotropic substance or narcotic drug, or smoke while in uniform or actively engaged in duty at a public place;

(g)     wilfully disobey a lawful command or order;

(h)     be absent without leave;

(i)      be asleep while on duty; ..

U)     leave his or her .post or place of duty before being relieved except when in fresh pursuit of an offender .who it is his or . her · duty to apprehend; ·

(k)     while under arrest or detention, leave or escape from such arrest or detention before he or she is set at liberty by the relevant authority;         ·         ·          ·

(1)     neglect or refuse to assist .ih the apprehension of any officer of the Service who has been charged w.ith any offence when lawfully ordered to do so;         ·

(m)    resist any lawful arrest;

(n)     negligently allow. any prisoner or detainee who is committed to his or her charge or who it is his or her duty to guard, to escape;

(o)     discharge    any    weapon      without . authorisation  or      without reasonable lawful cause;

(p)     without reasonable cause, fail to attend at any parade, instruction class or court or any other duty which he or she is required to attend;

(q)     sell, pawn, negligently Iose, make away with, wilfully or negligently damage, or fail to report any loss or damage to, any arm, amunition, accoutrement, uniform or other article of personal issue or .any vehicle or other property committed to his or her  charge  that  belongs  to the  Service  or  for  which  the Service is responsible for;

(r)     be in improper possession of any public or private property;

(s)     Commit any act of plunder or wanton destruction of property;

(t)      be negligent in the performance of his or her duties;

(u)     appear on  duty  untidy  in his or her  person,  arms, uniform  or equipment;

(v)     make  or  sign  any  false  statement  in . any  document  or  official record;

(w)    without proper authority, disclose or convey any information concerning any investigation or Service matter;

(x}  malinger or feign any disease or infirmity;

(y)     without proper authority, demand or exact from any person any carriage, porterage or provisions;

(z)     commit an act of corruption as defined by any written Jaw; (aa) make any false statement on joining the Service;  refuse or neglect to make or send any report which it is his or her duty to make or send; or knowingly  falsely  accuse or make a complaint  against  any officer  of the Service or any other person affecting the character of that other officer or that other person, or wilfully suppress any  material fact.        ·

2.      A member of the Service who is absent from duty without leave for a period  exceeding  twenty one  days  shall, unless  the contrary is proven, be considered to have deserted from the Service which shall be an offence against discipline.

STATEMENT OF OBJECTS AND REASONS OF THE BILL

 

The Kenya Coast Guard Service Bill, 2017 seeks to provide for the establishment, functions, discipline, organization and administration of the Kenya Coast Guard Service, and for connected matters. The Kenya Coast Guard Service shall have the mandate of law enforcement and security in Kenya's internal and territorial waters.

The Bill is divided into seven parts and four schedules.

Part I of the Bill deals with preliminary matters including the object and guiding principles of the Bill. The object of the Bill is the establishment of the Kenya Coast Guard Servic while its guiding principles include the national values and principles of governance set out in Article 10 (2) of the Constitution, the Bill of Rights, as well as the values and principles of the public service set out in Article 232 and the principles of national security set out in Article 238. The Service shall also strive for high standards of professionalism and discipline, promote and practice transparency, comply with constitutional standards of human rights and fundamental freedoms, reflect the diversity of Kenya  and, insofar as it is practicable, ensure that not more than two-thirds of its members are of the same gender.

Part II of the Bill provides for the establishment and the functions of the Service. Clause 5 provides for the establishment of the Service and that it shall reflect the diversity of Kenya while clause 6 provides that it shall be composed of a disciplined and uniformed component and a civilian component. The functions of the Service include enforcing maritime security and safety, pollution control and sanitation measures as well as prosecute maritime offenders. It shall also be responsible for port and coastal security, search and rescue, the protection of maritime resources including fisheries and shall perform any other function conferred on it by any written law.

Part II also provides for the establishment of the Council of the Service, the Technical Committee of the Service as well as the appointment and qualifications of the Director-General of the Service. The Council shall, among other functions, be responsible for the overall policy, supervision and control of the Service, act on the reports of the Technical Committee, review penalties imposed on members of the Service, consider the Service's budget estimates, commissioning of research by the Service and advising the President on any matter relating to the Service. The Technical Committee shall advise the Council on policy issues, oversee the management and administration of the Service, act on the reports of the Director-General, and make recommendations to the Council on any matter relating to the functions of the Service. The Director-General shall be responsible for the day to day administration, control and management of the Service, command the disciplined and uniformed component of the Service, the effective utilisation of the resources of the Service, the training, education and deployment of the members of the Service, reporting on the activities of the Service, oversee the implementation of the policies of the Service, and submitting to the Council the budget estimates of the Service.

Part III provides for the discipline of the members of the Service. It sets out the disciplinary offences and their penalties and gives the Director-General the power to summon witnesses in relation to any disciplinary offence. It also prohibits torture or other cruel, degrading and inhuman treatment of any person by the members of the Service.

Part IV provides for offences generally in relation to the Service including obstruction of members of .the Service in the performance of their duties, procuring or assisting in the desertion of a member of the Service, the unlawful purchase of Service stores, the unlawful dealing in . Service stores, the unlawful interference with aids-to-navigation, and the prohibition of the use of the name of the Service.

Part V provides for the limitation of the rights or fundamental freedoms of the members of the Service including the right to privacy, access to information, association, assembly, demonstration, picketing and petition, labour relations, and economic and social rights for the purposes set out in the part.

Part VI deals with financial matters including the sources of the funds of the Service, and the manner in which the Service shall account for its funds and how its accounts shall be audited.

Part. VII provides for miscellaneous matters including ·the uniforms of the Service, exemption of the Service from the execution of a judgment, decree or order of a court on any property of the Service or for which the Service is responsible, a requirement that the members of the Service, on their recruitment, shall divulge the places where they ordinarily reside and the addresses of their next of kin, the exclusion of the uniforms and decorations of the members of the Service from their estates, and the convening of boards of inquiry. Part VII also provides for the manner in which members of the Service may seek redress from their superiors if they have been wronged in any way. It grants the Cabinet Secretary the power to designate temporary holding areas for the detention of persons suspected to have committed offences under the Act as well as the secondment of personnel from other national security organs, the making of regulations and the publication of Service standing orders by the Service.

The First Schedule provides for the ranking structure in the Service

while the Second Schedule provides for the conduct of the business and       ;

affairs of the Council. The Third Schedule provides for the oath of office to which the· members of the Service shall subscribe on recruitment or appointment while the Fourth Schedule provides for the offences against discipline forwhich a member of the Service may be disciplined under the Act.

Statement on the delegation, of legislative powers and limitation of fundamental rights and freedoms

Clause 56 of the Bill delegates regulation making powers to ·the Cabinet Secretary for the purposes set out in the clause. Part V of the Bill limits the fundamental rights and freedoms of the members of the Service including the right to privacy, access to information, association, assembly, demonstration, picketing and petition, labour relations, and economic and social rights for the purposes set out in the part.

Statement on whether the Bill concerns county governments

This Bill does not concern County governments in terms of Article 11O (l) (a) of the Constitution as it does not affect the functions and powers of county governments as set out in the Fourth Schedule to the Constitution.

Statement on the financial implications of the Bill

The enactment of ·this Bill shall occasion additional expenditure of public funds, which shall be provided for in the estimates.

Dated the l0th November, 2017.

ADEN DUALE,

Leader of the Majority Party.


Created on Feb. 22, 2018, 11:03 a.m.
Submitted by: Dokeza Masta

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