The Sexual Offences (Amendment) , Bill , 2023

SPECIALISSUE

Kenya Gazette Supplement No.246(National Assembly Bills No.78)

REPUBLICOFKENYA

KENYA GAZETTESUPPLEMENT

NATIONALASSEMBLYBILLS,2023

NAIROBI,15thDecember,2023

CONTENT

| Bill for Introduction into the National Assembly- | PAGE | |-----------------------------------------------------|--------| | The Sexual Offences (Amendment)Bill,2023 | 2189 |

PRINTEDANDPUBLISHED BYTHE GOVERNMENTPRINTER,NAIRORI

THESEXUALOFFENCES(AMENDMENT)BILL, 2023

ABill for

AN ACT ofParliament to amend the Sexual Offences Act,2006

ENACTEDby theParliamentofKenya,asfollows-

• 1.This Act may be cited as the Sexual Offences Short title.
• (Amendment)Act,2023.
• 2.Section 2of the Sexual Offences Act,2006,in this Act referred to as "the principal Act",is amended by deleting the definition "Minister"and substituting the followingnew definition in itsproper alphabetical sequence
• "Cabinet Secretary"means the Cabinet Secretary for the time being responsible for matters relating to legal affairs:
• 3.Section 26 of the principal Act is amended in
• subsection (7)by deleting the word"Minister"appearing in paragraph (b) and substituting therefor the words,"Cabinet Secretary"
• 4.Section 35 of theprincipal Act is amended-
• (a)in subsection (3)by deleting the word,"Minister appearingimmediatelyaftertheexpression "subsection(2)andsubstitutingtherefor the words"Cabinet Secretary".
• (b)in subsection (5)by deleting the word"Minister" appearing immediately after the words "gazetted bytheand substituting therefor the words "Cabinet Secretary".
• 5.Section36of the principal Act is amended-
• (a)in subsection (4) by deleting the word,"Minister" appearing immediately after the words"determined by theand substituting thereforthe words "Cabinet Secretary"
• (b)in subsection (7)by deleting the word,"Minister" appearing inparagraph(b)and substituting therefor the words,"Cabinet Secretary"

Amendment of

section2of No.3 of2006.

Amendmeetaf

section26ofNo. 3af2006.

Amendment of section 35of No. 3of2006.

Amendmen of

section 36 of No.

• 6.Section 46of the principal Act is amended by deleting the word,"Minister"appearing immediately after the word "The"and substituting therefor the words "Cabinet Secretary".
• 7.The principal Act is amended by inserting the followingnew section immediatelyafter section 46-

Public awareness and

education on reproduetive health.

46A.(1)The Cabinet Secretary shall-

• (a)promotepublicawareness on sexual offences through nationwide education and information campaigns;and
• (b)in consultation with the Cabinet Secretary responsible for matters relating toeducation,establish programs to safeguard,protect and promote the right to education of victims of sexual offences, including victimsofteenage pregnancy.
• 8.Section 47 of the principal Act is amended by deleting the word"Minister"appearing immediately after the word "The"and substituting therefor the words
• "Cabinet Secretary"

Amendnent of section 46of No 3of2006.

Insertion ofnew section 46A in No.3of2006.

Amendmeat of section 47 of No.

MEMORANDUMOFOBJECTSANDREASONS

Statement of objects and reasons for the Bill

The principal object of this Bill is to amend the Sexual Offences Act, 2006 to provide for promotion ofnationalpublic awareness of sexual offences.Further,the Bill mandates the Cabinet Secretary responsible for education to establish programs to safeguard,protect,and promote the right to education ofvictims of sexual offences,including victims of teenage pregnancies.Finally. the Bill provides for the definition of a

cabinet secretary so as to align the Act with the Constitution.

Clause 1of the Bill is theShort Title.

Clause 2of the Bill proposes a definition of the Cabinet Secretary so

as to align it with the Constitution.

Clause 3 to Clause 6of the Bill substitutes the term"Minister"with "Cabinet Secretary"to align the Actwith the Constitution.

Clause7of theBill seeks to introduce anew section 46Aprovidefor promotion of national public awareness of sexual offences.Further,the Bill requires the Cabinet Secretary Cabinet responsible for education to establishprograms to safeguard,protect,and promote the right to education of victims of sexual offences,including victims of teenage pregnancies.

Clause 8of the Bill substitutes the term "Minister"with "Cabinet Secretary"to align the Act with the Constitution.

Statement on the delegation of legislative powers and limitation of

fundamentalrights and freedoms

ThisBill doesnot delegate legislative power or limit any fundamental

rights orfreedoms.

Indication ofwhether the Bill concerns county governments

This Bill does not affect the functions of the county govermments and is therefore a Bill not concerning counties.

Statement as to whether the Bill is a money Bill within the meaning of

Article ll4ofthe Constitution

The enactment of this Bill shall not occasion additional expenditure ofpublicfunds.

DORISDONYAABURI

Member ofParliament.

Section2ofNo3of2006thatisproposedtobeamended

Interpretation

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

"act which causes penetration"means an act contemplated under this Act:

"child"has the meaning assigned thereto in the Children Act No.8 of

2001;

"complainant"means the Republic or the alleged victim of a sexual offence and in the case ofa child or a person with mental disabilities. includes a person who lodges a complaintonbehalf of the alleged victim where thevictim isunable or inhibited from lodging and followingup a complaintof sexualabuse:

"consent"has the meaning assigned to it under this Act;

"DNA"means deoxyribonucleic acid,the genetic code unique to every living organism,including human beings and"DNA Test"shall be construedaccordingly:

"gang"meanstwo or more persons;

"genital organs"includes the whole or part of male or female genital

organs and for purposes of thisAct includes the anus;

gang rape"deleted by Act No.7of 2007,Sch.:

"HIVmeans the Human Immunodefiency Virus which causes AIDS:

"HIV test"means the test which determines whether a person is infected with HIV:

"indecent act"means any unlawful intentional act which causes

• (a)any contact between any part of the body of a person with the genital organs,breasts or buttocks of another,but does not include an act that causespenetration:
• (b)exposure or display ofany pornographic material to any person againsthis orherwill;

"intermediary"means a person authorized by a court,on account of his or her expertise or experience,to give evidence on behalf ofa vulnerable witness and may include a parent,relative,psychologist, counselor,guardian,children's officer or social worker.

"law enforcement officer"means any person whose duties involve

law enforcement and includes but is not limited to apolice officer as defined under the Police Act;

"person with mental disabilitiesmeans a person affected by any

mentaldisabilityirrespective of its cause,whether temporaryor permanent.and for purposes of this Act includes a person affected by such mental disability to the extent that he or she,at the time of the alleged commission of the offence in question,was-

• (a)unable to appreciate the nature and reasonably foreseeable consequences ofany act described under this Act:
• (b)able toappreciate the nature and reasonably foreseeable consequencesof such an act but unable to act in accordance with that appreciation;
• (c)unable to resist the commission of any such act;or
• (d)unable to communicate his or her unwillingness to participate in any such act;

"Minister"means the Minister for the time being responsible for matters relating to legal affairs andpublicprosecutions;

"penetration"means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

"sexual offence"means any offence prescribed in this Act:and

"vulnerable personmeans a child,a person with mental disabilities oran elderly person and"vulnerablewitmess"shall be construed

accordingly.

Section26ofNo3of2006thatisproposed tobeamended-

Deliberate transmission of HiV or any other life threatening sexually transmitted disease

• 26.(1) Any person who,having actual knowledge that he or she is infected with HlV or any other life threatening sexually transmitted disease intentionally,knowingly an wilfully does anything or permits the doingofanythingwhich he orsheknows or ought toreasonablyknow-
• (a)will infect another person with HIV or any other life threatening sexually transmitted disease;
• (b)is likely to lead to another person beinginfected with HIVor any other life threatening sexually transmitted disease:

• (c)will infect another person with any other sexually transmitted disease,shall be guilty of an offence,whether or not he or she is married to that other person,and shall be liable upon conviction to imprisonment for a term ofnot less fifteen years but which may be for life.
• (2)Notwithstanding the provisions of any other law,where a person is charged with committing an offence under this section,the court may direct that an appropriate sample or samples be taken from the accused person,such place and subject to such conditions as the court may direct. for thepurpose of ascertaining whether or not he or she isinfected with HIV or any other life threatening sexually transmitted disease.
• (3)The sample or samples taken from an accused person in terms of subsection (2)shall be stored at an appropriate place until finalization of the trial.
• (4)The court shall,where the accused person is convicted,order that the sample or samples be tested for HIV or any other life threatening sexually transmitted disease and where the accused person is acquitted, orderthat the sample orsamplesbedestroyed.
• (5)Where a cour has given directions under subsection (4).any medical practitioner or designated person shall,if so requested in writing by a police officer above the rank of a constable,take an appropriate sample orsamples from the accusedperson concerned;
• (6)An appropriate sample or samples taken in terms of subsection (5)-
• (a)shall consist of blood,urine or other tissue or substance asmay be determinedby the medicalpractitioner or designated person concermed,in such quantity as is reasonably necessary for the purpose of determining whether or not the accused person is infectedwith HIVor anyother life threatening sexually transmitted disease:and
• (b)in the case a blood or tissue sample.shall be taken from apart of the accused person's body selected by the medical practitioner or designatedperson concernedin accordancewith accepted medicalpractice.
• (7)Without prejudice to any other defence or limitation that may be available under any law,no claim shall lie and no set-off shall operate against-
• (a)the State;

• (b)anyMinister;or
• (c)any medical practitioner or designated persons,in respect of any detention,injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5),unless the taking was unreasonable or done in bad faith or the person who took the sample wasculpably ignorant and negligent.
• (8)Any person who,without reasonable excuse hinders or obstructs the taking of an appropriate sample in terms of subsection (5)shall be guilty of an offence of obstructing the cause of justice and shall on conviction beliable to imprisonment for a term ofnot lessthan fiveyears or to a fine of not lessfifty thousand shillingsor toboth.
• (9)Where a person is convicted of any offence under this Act and it isproved that at the time of the commission of the offence,the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she wasaware of his or her infection,notwithstanding any other sentence in this Act,he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.
• (10)For purposes of this section-
• (a) the presence in a person's body of HIV antibodies or antigens, detected through an appropriate test or series of tests.shall be prima facie proof that the person concerned is infected with HIV: and
• committing an offence referred to in this Act,it shall be presumed,unless the contrary is shown,that he or she was infected with HIV when theoffence was committed.

Section35ofNo3of2006thatisproposed tobeamended-

Medical treatmentorders

• 35.(l)A court shallupon conviction ofa person having committed a sexual offence and if satisfied that the convictedperson is dependent on or has the propensity to misuse alcohol,any drug or is suffering from any other disorder,and may benefit from treatment.grant an order for treatment or professional counseling and such an order shall be madein addition to any sentence,including a sentence of imprisonment which is not suspended.

• (2)Notwithstanding the provisions of sub-section (1).a court shall,at any time at the request of a victim of sexual offence or an intermediary. grant an order for the treatment of a victim of sexual offence.
• (3)Notwithstanding the provisions ofsubsection (2),the Minister responsible for health shall prescribe circumstances under which a victim of a sexual offence may at any time access treatment in any public hospital orinstitution.
• (4)The expenses incurred for the treatment or professional counseling ofany person convicted of an offence under this section or a victim of a sexual offence as the case may be,shall be borne by the State.
• (5)All treatment in respect of a treatment order or professional counseling granted under this Act shall be undertaken at a public hospital or institution or any other institution approved orgazetted by the Minister responsible for health.

(6)Allmedical records relating to treatment pursuant to subsections (1).(2).(3)and (4) shall bekept and may be used as evidence before any court with regard to any offence under thisAct.

Section36ofNo3of2006thatisproposed tobeamended-

Evidenceofmedicalorforensicnature

• 36.(l) Notwithstanding the provisions of section 26 of this Act or any other law,where a person is charged with committing an offence under this Act,the court may direct that an appropriate sample or samples be taken from the accused person,at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing,including a DNA test,in order to gather evidence and to ascertain whether or not the accused person committed an offence.
• (2)The sample or samples taken from an accused person in terms of subsection (I) shall be stored at an appropriate place until finalization of the trial.
• (3)The court shall,where the accused person is convicted,order that the sample or samples be stored in a databank for dangerous sexual offenders and where the accused person is acquitted,order that the sample orsamplesbedestroyed.
• (4)The dangerous sexual offenders databankreferred to in subsection (3)shall bekept for such purpose and at such place and shall contain such particulars asmaybe determined by theMinister.
• (5)Where a court has given directions under subsection (l). any medical practitioner or designated person shall,if so requested in writing

by a police officer above the rank of a constable,take an appropriate sampleor samples from the accusedperson concermed.

• (6)An appropriate sample or samples taken in terms of subsection
• (5)-
• (a)shall consist of blood,urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned,in such quantity as is reasonably necessary for the purpose of gathering evidence in ascertaining whether or not the accusedperson committed an offence ornot:and
• (b)in the case a blood or tissue sample,shall be taken from a part of the accused person's body selected by the medical practitioner or designated person concemed in accordance with accepted medical practice.
• (7)Without prejudice to any other defence or limitation that may be available under any law,no claim shall lie and no set-off shall operate against-
• (a)the State;
• (b)any Minister; or
• (c)any medical practitioner or designated persons,in respect of any detention,injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5),unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent.
• (8)Any person who,without reasonable excuse,hinders or obstructs the taking ofan appropriate sample in terms of subsection (5) shall be guilty of an offence of obstructing the course of justice and shall on conviction be liable to imprisonment for a term of not less than fiveyears or to a fine ofnotless fifty thousand shillingsor toboth.