Point in Time
Act No: CAP. 187
Act Title: OFFICIAL SECRETS
[ Date of commencement:16th February, 1968. ]
[ Date of assent:6th February, 1968. ]
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Official Secrets Act.

PART II – PROTECTION OF THE SAFETY AND INTERESTS OF THE REPUBLIC
4.
Unauthorized use of uniforms, passes, etc

Any person who, for the purpose of gaining admission, or of assisting any other person to gain admission, to a prohibited place, or for any other purpose or in any manner prejudicial to the safety or interests of the Republic—

(a)

uses or wears, without lawful authority, any uniform of the armed forces, any police uniform or any other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive, or falsely represents himself to be a person who is or has been entitled to use or wear any such uniform; or

(b)

orally, or in writing in any declaration or application, or in any document signed by him or on his behalf, knowingly makes or connives at the making of any false statement or any omission; or

(c)

forges, alters or tampers with any passport or any naval, army, air force, police or official pass, permit, certificate, licence or other document of a similar character, or uses or has in his possession any such forged, altered or irregular official document; or

(d)

personates, or falsely represents himself to be, a person holding, or in the employment of a person holding office under the Government, or to be or not to be a person to whom an official document or code word has been duly issued or communicated, or with intent to obtain an official document or code word, whether for himself or any other person, knowingly makes any false statement; or

(e)

uses, or has in his possession or under his control, without the authority of the Government department or authority concerned, any die, seal or stamp of or belonging to or used, made or provided by any Government department, or by any diplomatic, military, air force or naval authority appointed by or acting under the authority of the Government, or any die, seal or stamp so nearly resembling any such die, seal or stamp, or uses, or has in his possession or under his control, any such counterfeited die, seal or stamp,

shall be guilty of an offence.

5.
Interference with police officers or armed forces

Any person who in the vicinity of any prohibited place obstructs, knowingly misleads or otherwise interferes with or impedes any police officer, or any member of the armed forces who is engaged on guard, sentry patrol or other similar duty in relation to the prohibited place, shall be guilty of an offence.

6.
Production of telegrams
(1)

Where it appears to the Minister that it is expedient in the public interest to do so, he may, by warrant under his hand, require any person who owns or controls any telegraph apparatus used for the sending or receipt of telegrams to or from any place outside Kenya, to produce to him, or to any person named in the warrant, the originals and transcripts of all telegrams or of telegrams of any specified class or description or of telegrams sent from or addressed to any specified person or place, sent to or received from any place outside Kenya by means of any such telegraph apparatus and all other papers relating to any such telegram as aforesaid.

(2)

Any person who, having been required under subsection (1) of this section to produce the originals and transcripts of telegrams, refuses or neglects to comply with such requirement, shall be guilty of an offence and liable to imprisonment for a term not exceeding one year.

7.
Harbouring

Any person who—

(a)

knowingly harbours any person whom he knows, or has reasonable grounds for supposing, to be a person who is about to commit or who has committed an offence under this Act; or

(b)

knowingly permits to meet or assemble in any premises in his occupation or under his control any persons whom he knows, or has reasonable grounds for supposing, to be persons who are about to commit or who have committed an offence under this Act; or

(c)

having harboured any person as aforesaid or permitted any persons to meet or assemble as aforesaid, wilfully omits or refuses to disclose to a police officer of or above the rank of Inspector any information that it is in his power to give in relation to any such person,

shall be guilty of an offence.

8.
Attempts, incitements, etc

Any person who attempts to commit an offence under this Act, or solicits or incites or endeavours to persuade another person to commit any such offence, or aids or abets or does any act preparatory to the commission of such an offence under this Act, shall be guilty of an offence, whether or not the solicitation, incitement or endeavour succeeds in its purpose, and is liable to the same punishment as if he had committed that offence.

9.
Acts committed outside Kenya

An act, omission or thing that would, by reason of this Act, be punishable as an offence if committed in Kenya shall, if committed outside Kenya, be an offence under this Act, triable and punishable in Kenya, in the following cases, namely—

(a)

where the offender at the time of the commission was a citizen of Kenya;

(b)

where any code word, plan, article, document, information or other thing whatsoever in respect of which an offender is charged was obtained by him, or depends upon information obtained by him, while owing allegiance to the Republic.

PART III – PROCEEDINGS FOR OFFENCES
10.
Consent to prosecution
(1)

A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Attorney-General.

(2)

A person charged with an offence under this Act may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further or other proceedings shall be taken until that consent has been obtained.

11.
Place of offence

For the purposes of the trial of a person for an offence under this Act, the offence shall be deemed to have been committed either at the place in which it was actually committed or at any place in Kenya in which the offender may be found.

12.
Exclusion of public from trial

In addition and without prejudice to any powers that a court may possess to order the exclusion of the public from any proceedings, if in the course of proceedings before the court against any person for an offence under this Act or of the proceedings on appeal, application is made by the prosecution, on the grounds that the publication of any evidence to be given or of any statement tobe made in the course of the proceedings would be prejudicial to the interests of the Republic, that all or any portion of the public shall be excluded during the whole or any part of the hearing, the court may make an order to that effect, but the passing sentence shall in any case take place in public.

13.
Presumption concerning communication with agent of foreign power
(1)

On a prosecution for an offence under section 3 of this Act, the fact that the accused person has been in communication with, or has attempted to communicate with, an agent of a foreign power, whether within or outside Kenya, shall be evidence that he has, for a purpose prejudicial to the safety or interests of the Republic, obtained or attempted to obtain information which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power.

(2)

For the purposes of subsection (1) of this section, but without prejudice to the generality of that subsection, a person shall, unless he proves the contrary, be deemed to have been in communication with an agent of a foreign power if—

(a)

he has, either within or outside Kenya, visited the address of an agent of a foreign power or consorted or associated with such an agent; or

(b)

either within or outside Kenya, the name or address of, or any other information regarding, such an agent has been found in his possession, or has been supplied by him to any other person, or has been obtained by him from any other person.

(3)

Any address, whether within or outside Kenya, reasonably suspected of being an address used for the receipt of communications intended for an agent of a foreign power, or any address at which such an agent resides, or to which he resorts for the purpose of giving or receiving communications, or at which he carries on any business, shall be deemed to be the address of an agent of a foreign power, and communications addressed to that address to be communications with the agent.

14.
Presumption as to purpose prejudicial to safety of Republic

Where, on a prosecution of a person for an offence under this Act, it is alleged that he did some act for a purpose prejudicial to the safety or interests of the Republic, it shall not be necessary to show that he committed the act for that purpose if, from the circumstances of the case, or from his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the Republic.

15.
Presumption as to communication of information concerning prohibited place

Where any code word, plan, article, document or information relating to or used in any prohibited place, or anything in such a place, is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, it shall be deemed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the Republic, unless the contrary is proved.

16.
Proof of lawful authority or excuse

For the avoidance of doubt, it is hereby declared that the burden of proving lawful authority or excuse shall be upon the person alleging it, and accordingly in any proceedings for prosecution for an offence under this Act it shall not be incumbent on the prosecution to prove the lack of any such authority or excuse.

PART IV – SUPPLEMENTAL
17.
Arrest without warrant
(1)

Any person who is found committing an offence under this Act, or who is reasonably suspected of having committed, or of having attempted to commit, or of being about to commit, an offence under this Act, may be arrested by a police officer without a warrant.

(2)

Any person arrested under subsection (1) of this section shall be brought before a court within twenty-four hours whether or not the police inquiries are completed.

18.
Search warrant
(1)

If a court is satisfied by information on oath that there is reasonable grounds for suspecting that an offence under this Act has been or is about to be committed, it may issue a search warrant authorizing any police officer named therein to enter at any time any premises or place named in the warrant, if necessary by force, and to search the premises or place and every person found therein, and to seize any plan, article, or document, or anything that is evidence of an offence under this Act having been or being about to be committed, that he may find on the premises or place or on any such person, and with regard to or in connexion with which he has reasonable grounds for suspecting that an offence under this Act has been or is about to be committed.

(2)

Where it appears to a police officer of or above the rank of Assistant Superintendent that the case is one of great urgency and that in the interests of the Republic immediate action is necessary, he may by a written order under his hand give to any police officer the like authority as may be given by a warrant of a court under this section.

19.
Duty to give information as to commission of certain offences
(1)

Where the Attorney-General is satisfied that there is reasonable ground for suspecting that an offence under this Act has been, or is about to be, committed and for believing that some person is able to furnish information with regard thereto, he may authorize a gazetted police officer to require that person to give any information in his power relating to the offence or suspected offence and, if so required and on tender of his reasonable expenses, to attend at such reasonable time and place as may be specified by the gazetted police officer.

(2)

Any person who, having been required in pursuance of an authorization given under subsection (1) of this section to give information or to attend at a specified time and place, fails to comply with the requirement, or knowingly gives false information, shall be guilty of an offence and be liable to imprisonment for a term not exceeding six months or to a fine not exceeding five thousand shillings, or to both such imprisonment and such fine.

20.
General penalty

Any person who is guilty of an offence under this Act for which no penalty is specifically provided shall be liable to imprisonment for a term not exceeding fourteen years.

21.
Repeal
(1)

The Official Secrets Act (Cap. 187) is repealed.

(2)

The Official Secrets Act, 1911, the Official Secrets Act, 1920, and the Official Secrets Act, 1939 of the United Kingdom are repealed in their application to Kenya.

(3)

Notwithstanding subsections (1) and (2) of this section, a person may after the commencement of this Act be prosecuted under the Acts repealed by this section for an offence committed under the repealed Acts as though this Act had not come into operation.

[1 and 2 Geo. 5, c. 23, 10 and 11 Geo. 5, c. 75, 2 and 3 Geo. 6, c. 121.]