(Adopted in 2003)
An act of Parliament to provide for the prevention, investigation and punishment of corruption, economic crime and related offences and for matters incidental thereto and connected therewith enacted by the Parliament of Kenya as follows:-
Part I – Preliminary
Short title and commencement.
1. This Act may be cited as the Anti-Corruption and Economic Crimes Act, 2003 and shall come into force on publication in the Kenya Gazette.
2.(1) In this Act, unless the context otherwise requires —
“Advisory Board” means the Kenya Anti-Corruption Advisory Board established under Part III;
“Assistant Director” means an Assistant Director of the Commission;
“benefit” means any gift, loan, fee, reward, appointment, service, favour, forbearance, promise or other consideration or advantage;
“Commission” means the Kenya Anti-Corruption Commission established under Part III;
“corruption” means —
(a) an offence under any of the provisions of sections 39 to 44, 46 and 47;
(d) embezzlement or misappropriation of public funds;
(e) abuse of office;
(f) breach of trust; or
(g) an offence involving dishonesty —
(i) in connection with any tax, rate or impost levied under any Act; or
(ii) under any written law relating to the elections of persons to public office;
“Director” means the Director of the Commission;
“economic crime” means —
(a) an offence under section 45; or
(b) an offence involving dishonesty under any written law providing for the maintenance or protection of the public revenue;
“investigator” means a person authorized by the Director under section 23 to conduct an investigation on behalf of the Commission;
“Minister” means the Minister responsible for integrity issues;
“private body” means any person or organisation not being a public body and includes a voluntary organisation, charitable organisation, company, partnership, club and any other body or organisation howsoever constituted;
“public body” means —
(a) the Government, including Cabinet, or any department, service or undertaking of the Government;
(b) the National Assembly or the Parliamentary Service;
(c) a local authority;
(d) any corporation, council, board, committee or other body which has power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law; or
(e) a corporation, the whole or a controlling majority of the shares of which are owned by a person or entity that is a public body by virtue of any of the preceding paragraphs of this definition;
“public officer” means an officer, employee or member of a public body, including one that is unpaid, part-time or temporary;
“unexplained assets” means assets of a person—
(a) acquired at or around the time the person was allegedly guilty of corruption or economic crime; and
(b) whose value is disproportionate to his known sources of income at or around that time and for which there is no satisfactory explanation.
(2) For the purposes of this Act, a person shall be deemed to be in possession of any record, property, information or other thing if the possession of it is under his control.
Part II – Appointment of Special Magistrates
Power to appoint special judges.
3.(1) The Judicial Service Commission may, by notification in the Kenya Gazette, appoint as many special Magistrates as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely —
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in paragraph (a).
(2) A person shall not be qualified for appointment as a special Magistrate under this Act unless he is or has been a chief magistrate or a principal magistrate or an advocate of at least ten years standing.
4.(1) Notwithstanding anything contained in the Criminal Procedure Code, or in any other law for the time being in force, the offences specified in this Act shall be tried by special Magistrates only.
(2) Every offence specified in this Act shall be tried by the special Magistrate for the area within which it was committed, or, as the case may be, by the special Magistrate appointed for the case, or where there are more special Magistrates than one for such area, by one of them as may be specified in this behalf by the Judicial Service Commission.
(3) When trying any case, a special Magistrate may also try any offence, other than an offence specified in this Act, with which the accused may, under the Criminal Procedure Code, be charged at the same trial.
(4) Notwithstanding anything contained in the Criminal Procedure Code, a special Magistrate shall, as far as practicable, hold the trial of an offence on a day-to-day basis until completion. Procedure and powers of special Magistrates.
5.(1) A special Magistrate may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstance within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall be a pardon for purposes of section 77(6) of the Constitution.
(2) The provisions of the Criminal Procedure Code and the Magistrates’ Courts Act shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Magistrate; and for the purposes of the said provisions, the Court of the special Magistrate shall be deemed to be a Court and the person conducting a prosecution before a special Magistrate shall be deemed to be a public prosecutor.
(3) A special Magistrate may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted.
Part III – Kenya Anti-Corruption Commission and Advisory Board
A – Kenya Anti-Corruption Commission
Establishment of Commission.
6.(1) The Kenya Anti-Corruption Commission is hereby established as a body corporate.
(2) The Commission shall have all the powers necessary or expedient for the performance of its functions.
(3) Without limiting the generality of subsection (2), the Commission shall have perpetual succession and a common seal and shall be capable of —
(a) suing and being sued in its corporate name; and
(b) holding and alienating moveable and immovable property.
Functions of Commission.
7.(1) The Commission shall have the following functions —
(a)to investigate any matter that, in the Commission’s opinion, raises suspicion that any of the following have occurred or are about to occur —
(i)conduct constituting corruption or economic crime;
(ii)conduct liable to allow, encourage or cause conduct constituting corruption or economic crime;
(b)to investigate the conduct of any person that, in the opinion of the Commission, is conducive to corruption or economic crime;
(c)to assist any law enforcement agency of Kenya in the investigation of corruption or economic crime;
(d)at the request of any person, to advise and assist the person on ways in which the person may eliminate corrupt practices;
(e)to examine the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices and to secure the revision of methods of work or procedures that, in the opinion of the Commission, may be conducive to corrupt practices;
(f)to advise heads of public bodies of changes in practices or procedures compatible with the effective discharge of the duties of such bodies that the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt practices;
(g)to educate the public on the dangers of corruption and economic crime and to enlist and foster public support in combating corruption and economic crime;
(h)to investigate the extent of liability for the loss of or damage to any public property and —
(i)to institute civil proceedings against any person for the recovery of such property or for compensation; and
(ii)to recover such property or enforce an order for compensation even if the property is outside Kenya or the assets that could be used to satisfy the order are outside Kenya; and
(i)to carry out any other functions conferred on the Commission by or under this Act or any other law.
(2) A matter may be investigated by the Commission under subsection (1) at the request of the National Assembly, the Minister or the Attorney-General, or on receipt of a complaint, or on its own initiative.
(3) The Commission may refer any offence that comes to its notice in the course of an investigation under subsection (1) to any other appropriate person or body.
Director and staff of the Commission.
8. (1) The Commission shall have a Director who shall be the chief executive officer of the Commission and who shall be responsible for its direction and management.
(2) The Commission shall have up to four Assistant Directors to assist the Director.
(3) The Director and Assistant Directors shall be persons recommended by the Advisory Board and approved by the National Assembly for appointment to their respective positions.
(4) On the approval of a person by the National Assembly under subsection (3), the President shall appoint the person concerned to the office in respect of which the approval was given.
(5) The terms and conditions of service of the Director and the Assistant Directors shall be determined by the Advisory Board.
(6) The Commission may, upon such terms and conditions of service as the Commission may determine, employ such staff or hire the services of such consultants, experts or independent investigators as may be necessary for the proper performance of its functions.
(7) The First Schedule shall have effect in respect of the staff of the Commission.
9.(1) The Director shall appoint one of the Assistant Directors as Deputy Director.
(2) The Director may at any time revoke an appointment under this section and appoint another Assistant Director as Deputy Director.
(3) During the illness or absence of the Director or a vacancy in the office of the Director, the Deputy Director shall have and may exercise and perform the powers and functions of the Director and shall be deemed to be the Director.
Independence of Commission and Director.
10. In the performance of their functions, the Commission and the Director shall not be subject to the direction or control of any other person or authority, and shall be accountable only to Parliament.
11. The State Corporations Act shall not apply to the Commission.
Co-operation with other bodies.
12.(1) The Commission may in the performance of its functions work in co-operation with any other persons or bodies it may think appropriate, and it shall be the duty of any such person or body to afford the Commission every co-operation.
(2) Without limiting the generality of subsection (1), such persons or bodies include the Controller and Auditor-General and the Director of the Criminal Investigation Department.
(3) The Commission may in the performance of its functions work in co-operation with any foreign government or international or regional organization.
13.(1) The financial year of the Commission shall be the period of twelve months ending on 30th June in each year.
(2) At least three months before the commencement of each financial year, the Director shall cause estimates of the revenue and expenditure of the Commission for that year to be prepared and submitted to the Minister and the Treasury for approval.
(3) The estimates shall make provision for all the estimated expenditures of the Commission for the financial year and, in particular, shall provide for expenditures for —
(a) the payment of salaries, allowances and other charges in respect of the staff of the Commission;
(b) the payment of pensions, gratuities and other charges in respect of former staff of the Commission;
(c) the proper maintenance of buildings and grounds of the Commission;
(d) the maintenance, repair and replacement of the equipment and other property of the Commission; and
(e) the payment of allowances and expenses of the Advisory Board.
(4) The Commission shall make provision for the renewal of depreciating assets and the payment of pensions and other retirement benefits by the establishment of sinking funds and for contributions to such reserve and stabilization funds as may be required.
(5) The expenditures of the Commission shall be charged on and issued out of the Consolidated Fund without further appropriation other than this Act.
(6) Without prejudice to subsection (5), there may be made to and accepted by the Commission such grants, gifts, donations or bequests as the Advisory Board may approve:
Provided that no grant, gift, donation or bequest shall be approved if it is made on any condition that the Commission perform any function or discharge any duty or obligation other than a function, duty or obligation aimed at achieving its objects.
Accounts and audit.
14. (1) The Commission shall cause to be kept proper books and records of account of its income, expenditure, assets and liabilities.
(2) The annual accounts of the Commission shall be prepared, audited and reported upon in accordance with the Exchequer and Audit Act.
15.(1) The Director shall cause an annual report to be prepared for each financial year.
(2) The Director shall submit the annual report to the Advisory Board and the Minister within four months after the end of the year to which it relates.
(3) The annual report shall contain, in respect of the year to which it relates —
(a) the financial statements of the Commission; and
(b) a description of the activities of the Commission.
(4) Without limiting what may be included in the annual report, the annual report shall include —
(a) the information set out in the quarterly reports under section 36 for the year to which the annual report relates;
(b) a summary of the steps taken, during the year, in each civil proceeding instituted by the Commission and the status, at the end of the year, of each such civil proceeding; and
(c) such other statistical information as the Commission considers appropriate relating to complaints to the Commission, investigations by the Commission and reports by the Commission on the results of investigations.
(5) The Minister shall, within thirty days after receiving the annual report, transmit it to the National Assembly.
(6) The Commission shall cause the annual report to be published in the Gazette and in such other manner as the Commission may determine.
B – Kenya Anti-Corruption Advisory Board
Establishment of Advisory Board.
16. (1) The Kenya Anti-Corruption Advisory Board is hereby established.
(2) The Advisory Board shall be an unincorporated body consisting of —
(a) one member nominated by each of the following —
(i) the Law Society of Kenya;
(ii) the Institute of Certified Public Accountants of Kenya;
(iii) the International Federation of Women Lawyers (FIDA) Kenya Chapter;
(iv) the Kenya Association of Manufacturers;
(v) the joint forum of religious organizations described in subsection (3);
(vi) the Federation of Kenya Employers;
(vii) the Kenya Bankers Association;
(viii)the Central Organisation of Trade Unions;
(ix) the Association of Professional Societies in East Africa;
(x) the Architectural Association of Kenya;
(xi) the Institution of Engineers of Kenya; and
(xii) the Kenya Medical Association; and
(b) the Director.
(3) The joint forum of religious organizations referred to in subsection (2)(a)(v) shall consist of representatives of —
(a) the Supreme Council of Kenya Muslims;
(b) the Kenya Episcopal Conference;
(c) the National Council of Churches of Kenya;
(d) the Evangelical Fellowship of Kenya; and
(e) the Hindu Council of Kenya.
(4) The Second Schedule shall apply in respect of the Advisory Board and its members.
Functions of Advisory Board.
17.(1) The principal function of the Advisory Board is to advise the Commission generally on the exercise of its powers and the performance of its functions under this Act.
(2) The Advisory Board shall have such other functions as may be conferred on it by or under this Act.
Independence of Advisory Board.
18. In the performance of its functions, the Advisory Board shall not be subject to the direction or control of any other person or authority and shall be accountable only to Parliament.
Committees of the Board.
19.(1) For the better performance of its functions, the Advisory Board may establish committees in respect of the investigative, preventive and educational functions of the Commission or in respect of any other matter.
(2) The Advisory Board may delegate any of its powers and functions to any such committee, subject to subsection (3).
(3) The Advisory Board may not delegate the power or function to do any of the following —
(a) recommend a person to be appointed as Director or Assistant Director;
(b) appoint a person to be an acting Assistant Director or revoke such an appointment;
(c) recommend the termination of a person’s appointment as the Director or an Assistant Director;
(d) request the appointment of a Tribunal under paragraph 5(4) of the First Schedule.
Chairman and Vice-chairman.
20.(1) The Advisory Board shall nominate one of its nominated members to be the Chairman of the Advisory Board and another of its nominated members to be its Vice-chairman.
(2) The members so nominated shall be appointed to their respective offices by the President.
(3) Subject to an earlier resignation or termination, the Chairman and Vice-chairman shall each hold office until his current term as a member of the Advisory Board expires.
21. The Director shall be the secretary of the Advisory Board.
Procedures of the Advisory Board.
22.(1) The business and affairs of the Advisory Board shall be conducted in accordance with the Third Schedule
(2) Except as provided in the Third Schedule, the Advisory Board may regulate its own procedure.
(3) Seven nominated members of the Advisory Board shall constitute a quorum for the transaction of any business of the Board.
(4) The Advisory Board may invite any person to attend any of its meetings and to participate in its deliberations, but such an invitee shall not have a vote in any decision of the Board.
Part IV – Investigations
23.(1) The Director or a person authorized by the Director may conduct an investigation on behalf of the Commission.
(2) Except as otherwise provided by this Part, the powers conferred on the Commission by this Part may be exercised, for the purposes of an investigation, by the Director or an investigator.
(3) For the purposes of an investigation, the Director and an investigator shall have the powers, privileges and immunities of a police officer in addition to any other powers the Director or investigator has under this Part.
Identification for investigators.
24.(1) The Commission shall issue identification documentation to an investigator and such identification shall be evidence that the person to whom it is issued is an investigator.
(2) The identification documentation issued by the Commission shall be signed by the Director.
Complaint not investigated.
25. If the Commission receives a complaint concerning corrupt conduct on the part of any person and the Commission declines to investigate or discontinues its investigation before the investigation is concluded, the Commission shall inform the complainant in writing of its decision and of the reasons for its decision.
Statement of suspect’s property.
26.(1) The Commission may by notice in writing require a person reasonably suspected of corruption or economic crime to furnish, within a reasonable time specified in the notice, a written statement —
(a) enumerating the suspected person’s property and the times at which it was acquired; and
(b) stating, in relation to any property that was acquired at or about the time of the suspected corruption or economic crime, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property.
(2) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
(3) The powers of the Commission under this section may be exercised only by the Director.
Requirement to provide information, etc.
27.(1) The Commission may by notice in writing require an associate of a suspected person to provide, within a reasonable time specified in the notice, a written statement of the associate’s property at the time specified in the notice.
(2) In subsection (1), “associate of a suspected person” means a person, whether or not suspected of corruption or economic crime, who the investigator reasonably believes may have had dealings with a person suspected of corruption or economic crime.
(3) The Commission may by notice in writing require any person to provide, within a reasonable time specified in the notice, any information or documents in the person’s possession that relate to a person suspected of corruption or economic crime.
(4) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
(5) No requirement under this section requires anything to be disclosed that is protected by the privilege of advocates including anything protected by section 134 or 137 of the Evidence Act.
Production of records and property.
28.(1) The Commission may by notice in writing —
(a) require a person, whether or not suspected of corruption or economic crime, to produce specified records in his possession that may be required for an investigation; and
(b) require that person or any other to provide explanations or information within his knowledge with respect to such records, whether the records were produced by the person or not.
(2) A requirement under subsection (1)(b) may include a requirement to attend personally to provide explanations and information.
(3) A requirement under subsection (1) may require a person to produce records or provide explanations and information on an ongoing basis over a period of time, not exceeding six months.
(4) The six month limitation in subsection (3) does not prevent the Commission from making further requirements for further periods of time as long as the period of time in respect of which each requirement is made does not exceed six months.
(5) Without affecting the operation of section 30, the Commission may make copies of or take extracts from any record produced pursuant to a requirement under this section.
(6) A requirement under this section to produce a record stored in electronic form is a requirement —
(a) to reduce the record to hard copy and produce it; and
(b) if specifically required, to produce a copy of the record in electronic form.
(7) In this section, “records” includes books, returns, bank accounts or other accounts, reports, legal or business documents and correspondence other than correspondence of a strictly personal nature.
(8) The Commission may by notice in writing require a person to produce for inspection, within a reasonable time specified in the notice, any property in the person’s possession, being property of a person reasonably suspected of corruption or economic crime.
(9) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
(10) No requirement under this section requires anything to be disclosed that is protected by the privilege of advocates including anything protected by section 134 or 137 of the Evidence Act.
Search of premises.
29.(1) The Commission may, with a warrant, enter upon and search any premises for any record, property or other thing reasonably suspected to be in or on the premises and that has not been produced by a person pursuant to a requirement under the foregoing provisions of this Part.
(2) The power conferred by this section is in addition to, and does not limit or restrict, a power conferred by section 23(3) or by any other provision of this Part.
Admissibility of things produced or found.
30. Anything provided by a person pursuant to a requirement under the foregoing provisions of this Part, or obtained on a search of premises, may be taken and retained by the Commission for such time as is reasonable for the purposes of the investigation concerned and is admissible in evidence in a prosecution of any person, including the person who produced it or from whom it was obtained, for an offence.
Surrender of travel documents.
31.(1) On the ex parte application of the Commission, a court may issue an order requiring a person to surrender his travel documents to the Commission if —
(a) the person is reasonably suspected of corruption or economic crime; and
(b) the corruption or economic crime concerned is being investigated.
(2) If a person surrenders his travel documents pursuant to an order under subsection (1), the Commission —
(a) shall return the documents after the investigation of the corruption or economic crime concerned is completed, if no criminal proceedings are to be instituted; and
(b) may return the documents, at its discretion, either with or without conditions to ensure the appearance of the person.
(3) A person against whom an order under subsection (1) is made may apply to the court to discharge or vary the order or to order the return of his travel documents and the court may, after hearing the parties, discharge or vary the order, order the return of the travel documents, or dismiss the application.
(4) If a person fails to surrender his travel documents pursuant to an order under subsection (1), the person may be arrested and brought before the court and the court shall, unless the court is satisfied that the person does not have any travel documents, order that the person be detained pending the conclusion of the investigation of the corruption or economic crime concerned.
(5) A person who is detained pursuant to an order under subsection (4) shall be released if —
(a) he surrenders his travel documents to the Commission;
(b) he satisfies the court that he does not have any travel documents; or
(c) the investigation of the corruption or economic crime concerned is completed and the court is satisfied that no criminal proceedings are to be instituted.
(6) A person who is detained pursuant to an order under subsection (4) shall be brought before the court at least every eight days or at such shorter intervals as the court may order, to determine if the person should be released under subsection (5).
Arrest of persons.
32. Without prejudice to the generality of section 23(3), the Director and an investigator shall have power to arrest any person for and charge them with an offence, and to detain them for the purpose of an investigation, to the like extent as a police officer.
Disclosure that may affect investigation.
33.(1) No person shall, except with leave of the Director or with other lawful excuse, disclose the details of an investigation under this Act, including the identity of anyone being investigated.
(2) A person who contravenes this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
34.(1) No person other than an investigator shall represent himself to be or act as an investigator.
(2) A person who contravenes this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
35.(1) Following an investigation the Commission shall report to the Attorney-General on the results of the investigation.
(2) The Commission’s report shall include any recommendation the Commission may have that a person be prosecuted for corruption or economic crime.
36.(1) The Commission shall prepare quarterly reports setting out the number of reports made to the Attorney-General under section 35 and such other statistical information relating to those reports as the Commission considers appropriate.
(2) A quarterly report shall indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted.
(3) The Commission shall give a copy of each quarterly report to the Attorney-General.
(4) The Attorney-General shall lay a copy of each quarterly report before the National Assembly.
(5) The Commission shall cause each quarterly report to be published in the Gazette.
Annual report on prosecutions.
37.(1) The Attorney General shall prepare an annual report with respect to prosecutions for corruption or economic crime.
(2) The year covered by an annual report shall be the year ending on December 31st.
(3) The annual report for a year shall include a summary of the steps taken, during the year, in each prosecution and the status, at the end of the year, of each prosecution.
(4) The annual report shall also indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted and shall set out succinctly the reasons for not accepting the recommendation.
(5) The annual report for a year need not include the status of a prosecution that has been finally concluded in a previous year if that status was included in a previous annual report.
(6) The Attorney-General shall lay each annual report before the National Assembly within the first ten sitting days of the National Assembly following the end of the year to which the report relates.
(7) The first annual report following the coming into operation of this section shall cover the period from the coming into operation of this section to the following December 31st.
Part V – Offences
Meaning of “agent” and “principal”.
38. (1) In this Part —
“agent” means a person who, in any capacity, and whether in the public or private sector, is employed by or acts fo