This Act may be cited as the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012, and shall come into operation upon the expiry of fourteen days from the date of publication.
In this Act, unless the context otherwise requires—
means the Principal Secretary in charge of the government department for the time being responsible for matter relating to internally displaced persons or an officer deputed by that Principal Secretary in writing;
means the Cabinet Secretary in charge of the government department for the time being responsible for matters relating to internally displaced persons;
means the National Consultative Coordination Committee on Internally Displaced Persons established by section 12;
means the achievement of a durable and sustainable solution to the displacement of persons through a voluntary and informed choice of sustainable reintegration at the place of origin, sustainable local integration in areas of refuge, or sustainable integration in another part of Kenya;
means the Humanitarian Fund provided for in section 14;
means the 1998 United Nations Guiding Principles on Internal Displacement referred to in Article 1(3) of the Great Lakes Protocol and set out in the Second Schedule;
means the Humanitarian Fund for Mitigation of Effects and Resettlement of Victims of Post-2007 Election Violence established by regulation 3 of the Government Financial Management Regulations, 2008 (L.N. 11/2008);
means a person or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, large scale development projects, situations of generalized violence, violations of human rights or natural or human-made disasters,and who have not crossed an internationally recognized State border;
means persons or organizations who are not attributable to the State and whose actions are generally not attributable to the State;
means all activities aimed at obtaining full respect of the rights of internally displaced persons in accordance with the letter and spirit of the fundamental rights and freedoms under the Bill of Rights of the Constitution of Kenya and applicable regional and international human rights and humanitarian law instruments; and
means the Great Lakes Protocol on Protection and Assistance to Internally Displaced Persons as adopted by the International Conference on the Great Lakes Region in 2006 and set out in the First Schedule.
In this Act—
a reference to “public interest” shall be construed, in reference to large-scale development projects, the development interests of, and for the benefit of, the people of the Republic as whole, including persons displaced by such project;
a reference to “United Nations” shall be construed to be a reference to the United Nations Country Team in Kenya;
until after the first election under the Constitution, reference to “Cabinet Secretary” shall be construed to mean “Minister”;
until after the first election under the Constitution, reference to “Principal Secretary” shall be construed to mean “Permanent Secretary”.
Subject to the Constitution and this Act,—
the provisions of the Protocol; and
the provisions of the Guiding Principles,
shall apply to all internally displaced persons in Kenya.
The Government and any other organization, body or individual when responding to a situation of internal displacement and the needs of internally displaced persons under this Act, shall take into account their rights and freedoms as set out in the Bill of Rights of the Constitution.
Subject to the Constitution, the Government and any other organization, body or individual shall guard against factors and prevent and avoid conditions that are conducive to or have the potential to result in the displacement of persons.
The Government and any other organization, body or individual shall prevent internal displacement in situations of armed conflict, generalized violence, human rights violations, natural or human-made disasters and development projects.
The Government shall raise public awareness, undertake sensitization, training and education on the causes, impact and consequences of internal displacement and means of prevention as provided for in sections 17-20 of this Act.
The Government shall establish a prevention mechanism charged with monitoring areas inhabited by persons at risk of displacement, periodical reporting on the situation in such designated areas and early warning issued to the Cabinet Secretary and the Chair of the Committee for further action to prevent internal displacement.
The Government shall protect every human being against arbitrary displacement.
Arbitrary displacement in the manner specified under principle 6(2) of the Guiding Principles is prohibited and shall constitute an offence punishable under this Act as specified in section 23.
Displacement and relocation due to development projects shall only be lawful if justified by compelling and overriding public interests and in accordance with the conditions and procedures in Article 5 of the Protocol, Principles 7-9 of the Guiding Principles and as specified in sections 21-22 of this Act.
Subject to the Constitution, the Government shall put into place measures and structures to prepare for emergency disaster and ensuing internal displacement and mitigate its consequences.
The Government shall put into place measures for assistance and protection needs of internally displaced persons with particular regard to displaced communities with a special dependency on and attachment to their lands and the protection needs of women, children, persons with disabilities, the elderly and other persons with special needs.
Assistance and protection needs of communities in rural and urban areas where displaced persons find refuge shall equally be addressed based on their needs.
In formulating programmes for assistance and protection under this section, the Government shall ensure that consultation is made with the internally displaced persons.
The Government shall create the conditions for and provide internally displaced persons with a durable and sustainable solution in safety and dignity and shall respect and ensure respect for the right of internally displaced persons to make an informed and voluntary decision on whether to return, locally integrate or resettle elsewhere in the country.
Without limiting the generality of the subsection (1), the following conditions for durable solutions shall apply:
long-term safety and security;
full restoration and enjoyment of the freedom of movement;
enjoyment of an adequate standard of living without discrimination;
access to employment and livelihoods;
access to effective mechanisms that restore housing, land and property;
access to documentation;
family reunification and the establishment of the fate and whereabouts of missing relatives;
equal participation in public affairs; and
access to justice without discrimination.
The procedure for resettlement of internally displaced persons and the standards applicable to such resettlement shall be as prescribed.
In formulating the durable solutions under this section, the Government shall ensure that consultation is made with internally displaced persons.
Every person, including any public body, State officer or public officer and private body or individual involved in the protection and assistance to internally displaced persons in Kenya shall act in accordance with the Protocol, the Guiding Principles and as provided for in this Act.
The national Government shall bear ultimate responsibility for the administrative implementation of this Act.
For the purposes of any provision of the Protocol and the Guiding Principles that confers or imposes a power, duty or function on a State, that power, duty or function may be exercised or carried out on behalf of the Government of Kenya by the Cabinet Secretary, if this Act makes no other provision in that regard.
County Governments shall bear responsibility for the administrative implementation of the provisions of this Act in accordance with their functions and powers accorded by Article 186 and the Fourth Schedule of the Constitution.
Without prejudice to the generality of the foregoing, the Government shall, in accordance with Article 3(3) of the Protocol and Principles 2(1) and 28(1) of the Guiding Principles, bear the primary duty and responsibility for—
preventing and protecting from internal displacement, preparing for it and mitigating its consequences;
protecting and assisting internally displaced persons throughout the Republic; and
creating conditions conducive to and providing durable and sustainable solutions for internally displaced persons.
In particular, the Government shall bear the primary duty and responsibility to—
designate, where necessary, official areas for the settlement of internally displaced persons in the Republic;
facilitate the administration of settlement areas for internally displaced persons;
ensure adequate provision of basic social and health services in areas inhabited by internally displaced persons;
ensure, where necessary, the maintenance of public order, public security, and public health in areas inhabited by internally displaced persons;
safeguard and maintain the civilian and humanitarian character of settlements; and
ensure adequate provision of the social economic rights specified in Article 43 of the Constitution.
In particular, the Government shall and in accordance with Article 3 (6-8) and (10) of the Protocol and Principles 24-27 of the Guiding Principles—
request international assistance if the capacity of the Government to provide such protection and assistance is insufficient, inadequate or lacking;
ensure rapid and unimpeded access of humanitarian personnel to all internally displaced persons;
ensure that humanitarian assistance is not diverted; and
ensure the protection of humanitarian personnel, transports and goods.
The Government, through the Cabinet Secretary may delegate to the Committee the exercise of any of the responsibilities under subsections (4), (5) and (6).
There is hereby established a Committee to be known as the National Consultative Coordination Committee on Internally Displaced Persons.
The Committee shall be an unincorporated body under the relevant Government Department for the time being responsible for matters relating to internal displacement.
The Committee shall consist of—
a Chairperson from among those listed in paragraphs (b) to (l) appointed by the President;
the Principal Secretary of the Government Department for the time being responsible for matters relating to internal displacement;
the Principal Secretary of the Government Department for the time being responsible for matters relating to internal security;
the Principal Secretary of the Government Department for the time being responsible for matters relating to finance;
the Principal Secretary of the Government Department for the time being responsible for matters relating to lands;
the Principal Secretary of the Government Department for the time being responsible for matters relating to justice and constitutional affairs;
the Attorney-General;
the Director of Public Prosecutions;
the Chairperson of the Kenya National Commission on Human Rights;
the Chairperson or a Commissioner from the National Lands Commission;
two persons appointed by the Cabinet Secretary to represent the non State actors and donor community; and
two persons of opposite gender appointed by the Cabinet Secretary and nominated by internally displaced persons from amongst their number in such manner as may be prescribed.
The Accounting Officer shall provide the secretariat to the Committee.
The persons referred to under paragraphs (b) to (j) may attend in person or designate their alternate representatives not below the level of their immediate deputies.
The conduct of business and affairs of the Committee shall be as set out in the Third Schedule.
The functions of the Committee shall be to—
serve as the official impartial and humanitarian focal body liaising between Government Departments, the United Nations, non State actors, the Secretariat of the International Conference of the Great Lakes Region, and where appropriate the African Union;
determine and establish procedures and channels of engagement and cooperation between Government Departments, the United Nations, non State actors, the Secretariat of the International Conference of the Great Lakes Region and where appropriate the African Union in order to enhance the effectiveness of the response to internal displacement;
coordinate prevention and preparedness efforts, protection and assistance to internally displaced persons throughout their displacement until a durable and sustainable solutions is found, and to host communities as needed, among relevant Government Departments, the United Nations, and non State actors;
ensure the registration of all internally displaced persons in order to maintain a national data-base of such persons which registration shall—
commence and conclude within thirty days of the occurrence of internal displacement;
be declared by the Cabinet Secretary through the issuance of a Gazette notice;
be only for reasons of ascertaining the identification, profile, conditions, and numbers of internally displaced persons for the sole purpose of protection and assistance in accordance with Article 3 (4) of the Protocol;
raise national awareness, sensitize and facilitate and coordinate training and education on the causes, impact and consequences of internal displacement and means of prevention, protection and assistance as provided for in sections 18-21 of this Act;
oversee the management and use of the Fund provided for in section 15 of this Act;
prepare an Annual Report relating to the fulfilment of its functions for tabling before Parliament on the situation of internally displaced persons;
monitor and supervise the operational implementation of the Protocol and the Guiding Principles by virtue of this Act; and
advise the Cabinet Secretary on the exercise of his or her powers and functions under this Act.
There shall be the restructuring of the current existing national Humanitarian Fund.
The Fund shall be the successor to the Humanitarian Fund.
The Fund shall consist of—
any balance existing in the Humanitarian Fund as at the commencement of this Act;
donations by bilateral and multilateral donors, without prejudice to their possibility to directly fund activities to assist and protect internally displaced persons in Kenya;
sums received, including grants, donations, contributions or gifts from any person or institution;
moneys earned or arising from any investment of the Fund;
funds from the exchequer; and
all other sums which may in any manner become payable to, or vested in, the Fund.
The Fund shall be used for meeting the capital and recurrent expenditure relating to—
the protection and assistance to internally displaced persons and the provision of a durable solution to them as provided for in sections 9 and 10 of this Act including—
their former homes or alternative settlement sites;
the replacement of their basic household effects;
enabling them to re-start their basic livelihood;
the reconstruction of destroyed basic housing and rehabilitation of community utilities and institutions;
the prevention of internal displacement through preventive measures, including—
the establishment of the preventive mechanism as provided for in section 5(4) of this Act;
public awareness campaigns, sensitization, training and education on the causes, impact and consequences of internal displacement as provided for in sections 6(3) and 18-21 of this Act;
assisting in the operations of the Committee and non State actors’ programmes in accordance with subsection (3);
any other matter incidental to the matters stated in paragraphs (a), (b) and (c).
Any capital and recurrent expenditures made, that exceed the resources available, by County Governments in accordance with their responsibility for the administrative implementation of the provisions of this Act in accordance with their functions and powers accorded by Article 186 and the Fourth Schedule of the Constitution shall be covered by the Fund.
An amount of not less than three per cent of the Fund’s annual income shall be used to equitably finance the Committee in its operation and an additional amount of not less than fifteen per cent shall be used to fund relevant non State actors’ programmes. The funding mechanism, the programmes to be funded and the amount will be determined by the National Consultative Co-ordination Committee.
Unless the Treasury otherwise directs, the receipts, earnings or accruals of the Fund and its balances at the close of each financial year shall not be paid into the Consolidated Fund, but shall be retained for the purposes of the Fund in accordance with Article 206(1)(a) of the Constitution.
The Fund shall be administered by the Accounting Officer under the general direction of the Committee.
The Accounting Officer may, with the approval of the Cabinet Secretary for the time being responsible for finance, invest or place on a deposit account any of the moneys of the Fund and any interest earned on moneys so invested or deposited shall be placed to the credit of the Fund.
The Accounting Officer shall—
supervise and control the administration and use of the Fund as provided for in this section under the general direction of the Committee;
reports at least once in every six months to the Committee on the management and use of the Fund;
impose conditions on the use of any expenditure personally authorized and may impose any restriction or other requirement concerning use of expenditure;
cause to be kept proper books of account and other books and records in relation to the Fund as well as to all the various activities and undertakings of the Fund;
prepare, sign and transmit to the Auditor-General in respect of each financial year and within three (3) months after the end thereof, a statement of accounts relating to the Fund in accordance with the Public Audit Act (No. 12 of 2003) and in such details as the Treasury may from time to time direct;
furnish such additional information as may be required for examination and audit by the Auditor-General or under any law; and
designate such staff as may be necessary to assist in the management of the Fund.
The national Government, in order to prevent future instances of internal displacement in Kenya, shall promote public awareness about the causes, impact, and consequences of internal displacement as well as on means of prevention, protection and assistance to internally displaced persons through a comprehensive nation-wide education and information campaign.
The public awareness, education and information campaign referred to in subsection (1) shall be carried out in schools and other institutions of learning, prisons, remand homes and other places of confinement, amongst the disciplined forces, at places of work and in all communities throughout Kenya.
The national Government in collaboration with the Committee shall provide training, sensitization and awareness programmes on the causes, impact and consequences of internal displacement, as well as on means of prevention, protection and assistance to internally displaced persons for—
employees of all national Government Departments, authorities and other agencies;
employees of private and informal sectors;
community and social workers; and
media professionals, educators, and other stakeholders involved in the dissemination of information to the public on the causes, effects, means of prevention, protection and assistance to internally displaced persons.
In conducting the education and information campaign referred to in this section, the national Government shall ensure the involvement and participation of individuals and groups affected by internal displacement without endangering their safety.
The Committee shall liaise with the Government department responsible for education, to integrate instruction on the causes, impact and consequences of internal displacement as well as on means of prevention, protection and assistance to internally displaced persons in subjects taught in public and private schools at all levels starting from early childhood education development centers to primary, secondary, and tertiary levels, including informal, non-formal and indigenous learning systems.
The Committee shall in collaboration with the Government department responsible for education, develop and implement a training curriculum to be integrated into syllabuses on the causes, impact and consequences of internal displacement as well as on means of prevention, protection and assistance to internally displaced persons to be taught at all levels starting from early childhood education development centers.
Every county executive committee, in collaboration with the Committee, shall conduct a public awareness, educational and information campaign on causes, impact and consequences of internal displacement as well as on means of prevention, protection and assistance to internally displaced persons within its area of jurisdiction in the manner contemplated under sections 17 and 18.
Every city or urban area, in collaboration with the Committee, shall conduct a public awareness, educational and information campaign on causes, impact and consequences of internal displacement as well as on means of prevention, protection and assistance to internally displaced persons within its area of jurisdiction.
Subject to the Constitution, the Government shall abstain from displacement and relocation due to development projects or projects to preserve the environment and protect persons from displacement by private actors.
In exceptional cases, displacement and relocation due to development projects or projects to preserve the environment may be—
authorized and carried out in accordance with the applicable law;
justified by compelling and overriding public interests in the particular case; and
conducted when no feasible alternatives exist.
No person shall cause, aid or abet, arbitrary displacement through acts that amount to genocide, a crime against humanity or a war crime in accordance with international law and shall be punished in accordance with the International Crimes Act, 2008.
No person shall intentionally—
cause the arbitrary displacement of other persons as provided for in section 6 of this Act;
impede access to internally displaced persons;
cause harm to internally displaced persons;
cause harm to humanitarian personnel;
impede the work of humanitarian personnel;
obstruct the provision of humanitarian assistance to internally displaced persons;
steal, or loot, or destroy humanitarian supplies for internally displaced persons;
misuse or abuse the use of humanitarian assistance for internally displaced persons; and
aid or abet the commission of any of the acts or omissions specified in paragraphs (a) to (h).
Any person who—
pretends to be an internally displaced person or presents himself in a manner likely to suggest that he is an internally displaced person whilst he is not such person; or
provides false information during the verification or profiling of internally displaced persons; or
establishes an institution or camp which consists of persons pretending to be internally displaced persons as contemplated in paragraph (a),
commits an offence and is liable upon conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment.
The Cabinet Secretary may, upon recommendation by the Committee, make rules for giving effect to this Act.
Without limiting the generality of subsection (1) the rules may—
prescribe what is required under this Act;
prescribe the process and criteria for vetting of internally displaced persons to establish their authenticity;
provide for the prior administrative steps to be taken under this Act;
provide for the management of the Fund subject to the provisions of this Act; and
provide for the dissemination of information under this Act.