Point in Time
Act No: No. 25 of 2012
Act Title: KENYA DEFENCE FORCES
[ Date of commencement: 17th September, 2012. ]
[ Date of assent: 27th August, 2012. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Kenya Defence Forces Act, 2012.

3.
Guiding principles

The Defence Forces shall, in fulfilling its mandate, observe and uphold the Bill of Rights, values and principles under Articles 10(2), 232(1) and 238(2) of the Constitution and shall—

(a)

strive for the highest standards of professionalism and discipline amongst its members;

(b)

prevent corruption and promote and practice transparency and accountability;

(c)

comply with constitutional standards of human rights and fundamental freedoms;

(d)

train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and

(e)

ensure that recruitment reflects the diversity of the Kenyan people in equitable proportions.

4.
Application of the Act

This Act applies to the following persons—

(a)

every member of the regular forces;

(b)

an officer or service member of the reserve force, whether of the regular or volunteer reserve who is called out for service or is in training;

(c)

auxiliary reserve force;

(d)

any person who, though not otherwise subject to this Act, is serving with the Defence Forces under an engagement, and has agreed to be subject to this Act;

(e)

cadets;

(f)

an alleged spy of the enemy;

(g)

a person who, though not otherwise subject to this Act, is in civil custody or in service custody in respect of any service offence committed or suspected to have been committed by the person;

(h)

a person who, pursuant to a treaty or agreement between Kenya and the State in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Defence Forces, subject to such exceptions, adaptations and modifications as may be prescribed by regulations;

(i)

a person, not otherwise a member of the Defence Forces, who accompanies any unit or other element of the Defence Forces that is on active service in any place; or

(j)

a person attending a Defence Forces institution of the Defence Forces established under this Act or any other written law, subject to such exceptions, adaptations and modifications as may be prescribed by regulations.

5.
Application to civilians
(1)

The application of this Act to a civilian shall be limited to a person, other than a member of the Defence Forces, who—

(a)

with the authority of an authorized officer, accompanies a part, unit or formation of the Defence Force that is—

(i) outside Kenya; or
(ii) on operations against the enemy; and
(b)

has consented, in writing, to subject himself or herself to this Act while so accompanying that part of the Defence Forces.

(2)

The Defence Council shall, by regulations, prescribe the form and manner in which the consent under subsection (1)(b) may be obtained.

(3)

For the purposes of this Act and subject to any limitations prescribed by the Defence Council, a person accompanies a unit or other element of the Defence Forces that is on service or active service if that person—

(a)

participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of a State organ, duties in a disaster or warlike operations;

(b)

is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Defence Council;

(c)

is a dependant outside Kenya of an officer or non-commissioned member serving beyond Kenya with that unit or other element; or

(d)

is embarked on a vessel or aircraft of that unit or other element.

PART II – CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES
6.
Constitution of the Defence Forces
(1)

Pursuant to Article 241(1) of the Constitution, the Defence Forces consist of—

(a)

the Kenya Army;

(b)

the Kenya Air Force; and

(c)

the Kenya Navy.

(2)

There shall be, within the Defence Forces—

(a)

the regular force consisting of officers and service members;

(b)

the reserve force, consisting of the regular and volunteer reserve, as determined by the Defence Council or national legislation; and

(c)

the cadet forces, as may be determined, from time to time, by the Defence Council.

(3)

The composition of command of the Defence Forces shall reflect the regional and ethnic diversity of the people of Kenya.

7.
Determination of strength of Defence Forces
(1)

The Defence Forces shall consist of such maximum number of members as shall be determined, from time to time, by the National Security Council, on the recommendation of the Defence Council.

(2)

There shall be established such units and formations in the Defence Forces as the President may, in consultation with the Defence Council, determine.

(3)

Under the direction of the President, the Cabinet Secretary shall, by notice in the Gazette, assign names to units and formations of the Defence Forces and vary or replace any such names.

9.
The Commander-in-Chief of the Defence Forces
(1)

Pursuant to Article 131(1)(c) of the Constitution, the President is the Commander-in-Chief of the Defence Forces.

(2)

The President, as the Commander-in-Chief of the Defence Forces, shall—

(a)

appoint the Chief of the Defence Forces, Vice Chief of the Defence Forces and the three Service Commanders; and

(b)

be responsible for the organization and command of the Defence Forces.

(3)

Any person appointed as Chief of the Defence Forces, Vice Chief of the Defence Forces or a Service Commander shall, on being appointed, take and subscribe to the oath or affirmation of office prescribed in the First Schedule.

(4)

In making the appointments under subsection (2), the President shall ensure that the appointments reflect the regional and ethnic diversity of the people of Kenya.

14.
Vice Chief of the Defence Forces
(1)

There is established the office of the Vice Chief of the Defence Forces which shall be a State office.

(2)

The Vice Chief of the Defence Forces shall perform such functions and exercise such powers as are assigned by the Chief of the Defence Forces under this Act or any other written law.

15.
Service Commanders
(1)

There shall be a Service Commander of each Service of the Defence Forces as specified in Article 241(2) of the Constitution, namely—

(a)

Kenya Army;

(b)

Kenya Air Force; and

(c)

Kenya Navy.

(2)

A Service Commander of a Service of the Defence Forces shall, command, control and administer the Service for which he or she is responsible.

18.
Functions of the National Security Council in relation to the Defence Forces

The National Security Council shall, with respect to Defence Forces and pursuant to Article 240(3), (6) and (8) of the Constitution and provisions of the National Security Council Act, exercise supervisory control and perform the following other functions—

(a)

determine, from time to time, the strength of the Defence Forces on the recommendation of the Defence Council;

(b)

integrate the domestic, foreign and military policies relating to national security in order to enable the Defence Forces to co-operate and function effectively;

(c)

deploy Defence Forces outside Kenya, with the approval of Parliament, for—

(i) regional or international peace support operations; or
(ii) other support operations;
(d)

approve, with the approval of Parliament, the deployment of foreign forces in Kenya; and

(e)

carry out any other function related to the Defence Forces as may be prescribed by national legislation.

19.
Composition of the Defence Council, etc.
(1)

The Defence Council established under Article 241(5) of the Constitution shall consist of—

(a)

the Cabinet Secretary, who is the chairperson;

(b)

the Chief of the Defence Forces;

(c)

the three Service Commanders of the Defence Forces; and

(d)

the Principal Secretary.

(2)

The Defence Council shall appoint a public officer or a member of the Defence Forces to be the secretary to the Council.

(3)

Acts and instructions of the Defence Council shall be signified, by a command of the Council, under the hand of the chairperson and the secretary to the Council.

(4)

The secretary shall be responsible for—

(a)

communicating the decisions of the Defence Council; and

(b)

performing any other function as may be assigned from time to time by the Defence Council.

21.
Conduct of business and affairs of the Defence Council
(1)

The business and affairs of the Defence Council shall be conducted in accordance with the Second Schedule.

(2)

Except as provided for in the Second Schedule, the Defence Council may regulate its own procedure.

22.
Committees of the Defence Council
(1)

The Defence Council may establish committees for the effective discharge of its functions.

(2)

The Defence Council may co-opt into the membership of the committees established under subsection (1) other persons whose knowledge and skills are considered necessary for the functions of the Council.

(3)

Any person co-opted into a committee of the Defence Council under subsection (2) may attend the meetings of the Council and participate in its deliberations, but shall not participate in the making of decisions.

23.
Appointments
(1)

The Chief of the Defence Forces, the Vice Chief of the Defence Forces and the three Service Commanders shall be appointed by the President on the recommendation of the Defence Council.

(2)

A person shall not be eligible for appointment as the Chief of the Defence Forces, the Vice Chief of the Defence Forces or Service Commander unless that person—

(a)

is a citizen of Kenya pursuant to Article 78 of the Constitution;

(b)

is a member of the regular Defence Forces; and

(c)

meets the requirements of Chapter Six of the Constitution.

(3)

In appointing the Chief of the Defence Forces, the Vice Chief of the Defence Forces and the three Service Commanders, the President shall take into account—

(a)

seniority;

(b)

military and formal civil education;

(c)

the possession of a relevant degree from a university or an institution recognized in Kenya or such other equivalent qualifications as may be approved by the Defence Council; and

(d)

military and security experience.

(4)

In the appointment of the Chief of the Defence Forces, the Vice Chief of the Defence Forces or the three Service Commanders, the President shall—

(a)

ensure that the provisions of Articles 27 and 241(4) of the Constitution are respected and upheld; and

(b)

be guided by the provisions of Article 73(2)(a), (b) and (d) of the Constitution.

25.
Determination of salaries

The Salaries and Remuneration Commission shall set and regularly review the remuneration and benefits of the Chief of the Defence Forces, the Vice Chief of the Defence Forces and three Service Commanders in accordance with Article 230(4) of the Constitution and the Salaries and Remuneration Act, 2011 (Act No. 10 of 2011).

26.
Removal, retirement and deployment from Defence Forces

The President may remove, retire or redeploy the Chief of the Defence Forces, the Vice Chief of the Defence Forces or any of the Service Commanders at any time before the expiry of the term of office.

27.
Vacancy
(1)

The Office of the Chief of the Defence Forces, the Vice Chief of the Defence Forces or a Service Commander shall become vacant if—

(a)

the holder—

(i) dies;
(ii) resigns from office by a notice in writing addressed to the President;
(iii) is retired, redeployed or removed from office in accordance with section 26;
(iv) is dismissed from the Defence Forces by a court-martial;
(b)

the holder's commission is terminated; or

(c)

the holder's service is terminated on disciplinary or any other ground.

(2)

Where a vacancy occurs under subsection (1), the President shall appoint a replacement in accordance with section 23.

29.
Terms and conditions of service of members of the Defence Forces
(1)

The Defence Council shall, on the advice of the Salaries and Remuneration Commission, determine the salaries of the members of the Defence Forces.

(2)

The Defence Council shall, in consultation with the Public Service Commission, determine the conditions of service of members of the Defence Forces.

30.
Defence controlled unit and constabulary
(1)

The Defence Council shall from time to time—

(a)

establish defence controlled units of the Defence Forces, which shall be under the Chief of the Defence Forces;

(b)

establish a support staff unit to be known as the constabulary.

(2)

The Defence Council shall by regulations determine the extent to which this Act shall apply to the members of the units created under subsection (1)(a) and (b).

PART III – CO-OPERATION WITH OTHER AUTHORITIES IN KENYA
35.
Powers and duties of members while being deployed
(1)

Whenever the Defence Forces or any portion or member thereof has been deployed under section 33, that member of the Defence Forces shall have the same powers and exercise the same duties as those conferred or imposed upon a member of the National Police Service.

(2)

The powers and duties referred to in subsection (1) may only be exercised or performed for the purposes of—

(a)

successful execution of that deployment;

(b)

maintenance of law and order; or

(c)

preservation of the internal security of the State.

(3)

The powers and duties referred to in subsection (1) shall not include powers and duties to investigate crime.

(4)

A member of the Defence Forces who arrests or detains any person or seizes any article or object shall as soon as possible hand that person, article or object over to the National Police Service or any other appropriate functionary designated by relevant law.

(5)

A member of the Defence Forces shall in respect of acts done or omitted to be done by him or her by virtue of this section—

(a)

be liable to the same extent as a member would have been liable in like circumstances if that member was a member of the National Police Service; and

(b)

have the benefit of all the indemnities to which a member of that National Police Service would in like circumstances be entitled to.

(6)

A member of the Defence Forces who exercises any power by virtue of this section shall be regarded as a military police officer.

(7)

Nothing in this section may be construed as giving—

(a)

a member of the National Police Service any power to exercise command or control over any member of the Defence Forces; or

(b)

a member of the Defence Forces any power to exercise command or control over any member of the National Police Service.

(8)

A provision of this Act relating to the powers and duties of a member of the Defence Forces may not be construed as removing, detracting from or diminishing any power or duty expressly conferred, enforced or imposed by any other law upon such a member of the Defence Forces.

(9)

Members of the Defence Forces deployed in terms of subsection (1) shall receive appropriate training prior to such deployment and shall be equipped accordingly.

PART IV – RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA
36.
Attachment to other forces and employment outside Kenya
(1)

The Defence Council may place any officer or service member at the disposal of the service authorities of any country for the purpose of undergoing instructions or training, subject to anything to the contrary in the conditions applicable to that officer or member's service.

(2)

Pursuant to Article 240(8) of the Constitution, the National Security Council may with the approval of Parliament—

(a)

deploy national forces outside Kenya for—

(i) regional or international peace support operations; or
(ii) other support operations; and
(b)

approve the deployment of foreign forces in Kenya.

(3)

Immediately after the National Security Council has deployed the Defence Forces under subsection (2), the President shall order the Chief of the Defence Forces to effect the deployment by ordering any unit of the Defence Forces to be employed outside Kenya as may be specified in the order.

(4)

An officer or service member in service outside Kenya by virtue of this section—

(a)

shall not cease to be subject to this Act; and

(b)

shall retain the service member's rights and such service shall be taken into account to the same extent as if it had been service in Kenya for the purposes of gratuities and pension on discharge.

37.
Co-operation with other forces and forces visiting Kenya
(1)

Any treaty or agreement between the Government of Kenya and any other State or international institution or organization regarding the use or provision of military forces shall provide for the legal status of—

(a)

members of the Defence Forces placed at the disposal of the military authorities of such State, institution or organisation;

(b)

foreign military personnel and their mission while the personnel are deployed in Kenya;

(c)

the conditions of operation of the Defence Forces, and the foreign military personnel outside gazetted areas; or

(d)

the compensation of local communities in the event of accidents in areas where the military is deployed.

(2)

A treaty or agreement entered into under subsection (1) shall put in place mechanisms to protect the interests of the local community of the place where the foreign military forces are deployed and such treaty shall also provide that the foreign forces are subject to the Constitution and all the laws of Kenya.

38.
Service by members in fulfillment of international obligation

Service in fulfillment of an international obligation which entails participation by any member of the Defence Forces in a military force under the control or with the approval of an international body—

(a)

is subject to such member's rights and conditions of service under this Act, and shall be rendered by every member for such additional emoluments and benefits, including medical, travelling and subsistence, transport, leave, maintenance, assurance, insurance, tax, disability and death benefits as may be determined by agreement with the international body;

(b)

shall not be rendered by any such member in a rank lower than that which he or she holds in the Defence Forces;

(c)

shall be rendered in compliance with the customary international law and treaties or other international agreements ratified by, or binding on the State; and

(d)

shall not have the effect of detracting from the powers and duties of the President, the Cabinet Secretary or the Chief of the Defence Forces in relation to such member.

39.
Attachment of personnel
(1)

The Defence Council may—

(a)

temporarily attach to the Defence Forces any member of a force of any State or country which is placed at the disposal of the Defence Forces for that purpose by the military authorities of that State or country as the case may be; or

(b)

subject to the conditions applicable to his or her service, place any member of the Defence Forces at the disposal of the military authorities of any State or country for purposes of being attached temporarily by those authorities to the forces of that country.

(2)

Subject to subsection (3) and where an international treaty or agreement applies, a member of a force of any other State or country who is attached temporarily to the Defence Forces, is subject to the laws applicable to the Defence Forces and shall be treated, and has the same power of command and punishment over members of the Defence Forces, as if he or she were a member of the Defence Forces of a rank equivalent to that held by him or her as a member of the force of the State or country from which he or she belongs.

(3)

The President may, by notice in the Gazette, direct that in relation to members of a force of any State or country specified in the notice, the laws relating to the Defence Forces apply with such exceptions and subject to such adaptations and modifications as may be so specified.

40.
Command over members serving together with other military force or under control of international body
(1)

Whenever members of the Defence Forces and any military force of another country are—

(a)

serving together, every member of that military force shall be treated, and have powers of command over those members of the Defence Forces, as if he or she were a member of the Defence Forces of the relative rank; or

(b)

acting in combination, every officer of that military force appointed to command the combined forces or any part thereof shall be treated, and have powers of command and of punishment over those members of the Defence Forces, as if he or she were an officer of the Defence Forces of the relative rank.

(2)

For purposes of this section, the Defence Forces and any other force shall be regarded as serving together or acting in combination whenever the President has, by notice in the Gazette, declared that they are so serving or acting, and the relative rank of members of the Defence Forces and of such other force is as designated by such notice.

(3)

Whenever the service contemplated in this section entails members of the Defence Forces and any military force under the control of an international body—

(a)

serving together, every member of that military force shall be treated, and have powers of command over those members of the Defence Forces, as if he or she were a member of the Defence Forces of the relative rank; or

(b)

acting in combination, every officer of that military force appointed to command the combined forces or any portion thereof, shall be treated, and have powers of command and punishment over those members of the Defence Forces, as if he or she were an officer of the Defence Forces of the relative rank.

41.
Application of UNCLOS in law enforcement power at sea

The Defence Forces shall, in the enforcement of relevant Kenyan laws at sea comply with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).

PART V – LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT
42.
Rights and fundamental freedoms

All persons subject to this Act shall enjoy all rights and fundamental freedoms enshrined under Chapter Four of the Constitution unless limited to the extent specified in Article 24(5) of the Constitution, this Act or any other Act.

43.
Conditions for limitation of rights and fundamental freedoms
(1)

The purpose of this Part is to specifically limit or restrict certain rights or fundamental freedoms set out in Chapter Four of the Constitution, as contemplated in Article 24 of the Constitution.

(2)

The limitations of rights and freedoms under this Part are necessary for purposes peculiar to military service, based on human dignity, to ensure—

(a)

the defence and protection of the sovereignty and territorial integrity of the Republic of Kenya;

(b)

the protection of classified information;

(c)

the maintenance and preservation of national security;

(d)

the security and safety of members of the Defence Forces;

(e)

that the enjoyment of the rights and fundamental freedoms by any individual member of the Defence Forces does not prejudice the rights and fundamental freedoms of any other individual member of the Defence Forces;

(f)

good order and service discipline; and

(g)

public health and safety.

(3)

The limitation under this Part shall comply with Article 24 of the Constitution and shall satisfy the following four criteria—

(a)

ensure the protection of national security, public safety, public order, public health or morals, protection of the rights and freedoms of others;

(b)

be necessary to achieve the mandate of the Defence Forces;

(c)

operate without discrimination; and

(d)

be exceptional and not impair the essence of the freedom being limited.

44.
Limitation to freedom of conscience, religion, thought, belief and opinion
(1)

The right to freedom of conscience, religion, thought, belief and opinion set out in Article 32 of the Constitution shall be subject to limitations in respect of a person to whom this Act applies only under the conditions set out in subsection (2).

(2)

Nothing contained in or done under the authority of this Act shall be held to be inconsistent with or in contravention of freedom of conscience, religion, thought, belief and opinion set out in Article 32 of the Constitution if that act is reasonably done—

(a)

in the interests of defence, security, public safety, public order, public morality or public health;

(b)

for the purpose of protecting the rights and freedoms of other persons including the right to observe and practice religion, belief, opinion without the unsolicited intervention of members of another religion; or

(c)

for good order and discipline in the Defence Forces.

45.
Limitation of freedom of expression
(1)

The right to freedom of expression set out in Article 33 of the Constitution shall be subject to limitation in respect of a person to whom this Act applies only under the conditions set out in subsection (2).

(2)

The limitation to freedom of expression shall be to the extent that it is done—

(a)

in the interests of national defence, national security, public safety, public order, public morality or public health;

(b)

for the purpose of protecting the reputations, rights and freedoms of other persons or the private persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts martial or regulating the technical administration or the technical operation of telecommunication, posts, wireless broadcasting, communication, internet, satellite communication or television;

(c)

to impose restrictions upon military personnel or upon persons in the service of the Defence Forces, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in the military; or

(d)

for security and protection of information within the Defence Forces.

46.
Limitation of political rights
(1)

Despite political rights set out in Article 38 of the Constitution, a person to whom this Act applies shall not—

(a)

form, join, participate, campaign for any political cause or recruit members for a political party; or

(b)

serve as a member of Parliament, the Senate, a county assembly or any other political body.

(2)

The provisions under subsection (1) shall not apply to that persons' right to register as a voter and to vote in an election, by-election or a referendum.

(3)

The provisions under subsection (1) shall not apply to persons who serve in the reserve force who are not called out.

47.
Limitation to freedom of movement and residence

Despite the right to freedom of movement and residence set out in Article 39 of the Constitution, that right in respect of a person to whom this Act applies shall be limited—

(a)

when the person is lawfully held in service custody;

(b)

when, within Kenya, the right of such person to leave Kenya; is reasonably restricted in the interests of defence, public security, public safety, public order, public morality or public health;

(c)

when entering or having entered, remaining within or around designated military areas subject to such conditions as may be prescribed; or

(d)

under any other circumstances which that person may be subjected to in respect of any movement or residence within or outside Kenya.

48.
Limitation of right to privacy
(1)

Despite the right to privacy set out in Article 31 of the Constitution, that right in respect of a person to whom this Act applies shall be limited where—

(a)

that person's home or property within the barracks or any military establishment is to be searched;

(b)

that person's possessions are to be seized;

(c)

information relating to that person's family or private affairs is required to be revealed; or

(d)

the privacy of a person's communications is to be investigated or otherwise interfered with.

(2)

In order for the limitation under subsection (1)(c) to apply, the person shall have committed a crime or be suspected to have committed a crime.

49.
Limitation of right to access to information
(1)

The right of access to information set out in Article 35(1) and (3) of the Constitution shall be subject to limitation in respect of classified information or information under the custody of the Defence Forces only under the circumstances set out under subsection (2).

(2)

The limitation referred to under subsection (1) shall be in respect of the right of access to information held by the Defence Forces to the extent of protecting the Defence Forces from—

(a)

demands to furnish persons with classified information;

(b)

disclosing and publicising information relating to covert operations of the Defence Forces; or

(c)

disclosing and publicising information, the disclosure or publication of which would be prejudicial to national security.

(3)

For purposes of this section “classified information” means any information whose unauthorised disclosure would prejudice national security and includes information on the strategy, doctrine, capability, capacity and deployment.

(4)

The Cabinet Secretary may by regulations determine the categories of security classification.

(5)

Categories of classified information may include-

(a)

“top secret” which means information whose unauthorised disclosure would cause exceptionally grave damage to national security;

(b)

“secret” which means information whose unauthorised disclosure would cause serious injury to national security;

(c)

“confidential” which means information whose unauthorised disclosure would be prejudicial to the interest of the State;

(d)

“restricted” which means information which requires security protection other than that determined to be top secret, secret or confidential.

50.
Limitation of the right to freedom of association
(1)

Despite the right to freedom of association set out in Article 36 of the Constitution, a person to whom this Act applies shall not join or participate in the activities of an association that may be prescribed in regulations.

(2)

The limitation under subsection (1) shall not apply to joining or participation in the activities of professional associations.

51.
Limitation of right to assembly, demonstrate, picket and petition

Despite the right to assemble, demonstrate, picket and petition public authorities set out in Article 37 of the Constitution, a person to whom this Act applies shall not assemble, demonstrate, picket or petition public authorities to the extent of maintaining military discipline.

52.
Limitation of right to labour relations

Despite the right to fair labour practices set out in Article 41 of the Constitution, a person to whom this Act applies shall not form, join, agitate or participate in the activities of trade unions or go on strike.

53.
Limitations of economic and social rights

The economic and social rights set out in Article 43 of the Constitution, in respect of a person to whom this Act applies, may be limited to the extent necessary for military training and operation as shall be prescribed by regulations.

54.
Limitation of rights of an arrested person
(1)

The rights of an arrested person in Article 49 of the Constitution may be subject to limitation in respect of a person to whom this Act applies as set out in subsections (2) and (3).

(2)

Nothing contained in or done under the authority of this Act shall be held to be inconsistent with or in contravention of the right of an arrested person in so far as the Act permits—

(a)

the holding of an arrested person jointly with the persons serving a sentence;

(b)

the holding of an arrested person without bail; or

(c)

the holding of an arrested person in custody notwithstanding that the offence is punishable by a fine only or imprisonment for a term not exceeding six months.

(3)

An accused person shall not be held in custody for more than eight days before he or she is arraigned before a commanding officer or a court-martial unless the commanding officer, for reasons to be recorded in writing, is satisfied that the continued arrest of the accused person is necessary.

(4)

The commanding officer shall review his or her decision in subsection (3) after the lapse of eight days until the accused person is brought before a commanding officer or a court-martial.

PART VI – SERVICE OFFENCES

General provisions on offences and trials

55.
Offences not triable by a court-martial
(1)

A court-martial shall not try any civilian person who is subject to this Act and charged with any of the offences under the Sexual Offences Act, 2006 (Act No. 3 of 2006) and the law relating to protection from domestic violence where that offence is committed in Kenya.

(2)

Notwithstanding subsection (1), where a person who is subject to this Act commits an offence referred to under subsection (1) outside Kenya, that person shall be tried and sentenced by a court-martial.

56.
Trials in civil courts

Nothing in this Act or any order, disciplinary code, rules, regulations or manual shall affect the jurisdiction of any civil court to try a person for any offence triable by a civil court.

57.
Persons guilty of an offence
(1)

A person who is subject to this Act is party to and guilty, upon conviction by a court-martial, of an offence, if that person—

(a)

actually commits the offence;

(b)

does or omits to do anything for the purpose of aiding any person to commit the offence;

(c)

abets any person in committing the offence; or

(d)

counsels or procures any person to commit the offence.

(2)

A person subject to this Act who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(3)

Where two or more persons form an intention in common to carry out an unlawful purpose and to, assist each other in carrying out the common purpose, each of them commits an offence and anyone who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is party to and guilty, upon conviction by a court-martial, of that offence.

Treachery, Cowardice and Offences arising out of Service

58.
Aiding the enemy
(1)

A person who is subject to this Act commits an offence if that person, with intention to assist an enemy or otherwise—

(a)

abandons or delivers up any place or post which it is the person's duty to defend, or abandons the person's place of duty;

(b)

induces any person to abandon or deliver up any place or post which it is that person's duty to defend, or induces any person to abandon that person's place of duty;

(c)

does any act calculated to imperil, the success of operations of the Defence Forces, or of any co-operating forces, or any part of the Defence Forces or of co-operating forces;

(d)

having been captured by the enemy, serves with or aids the enemy in the prosecution of hostilities, or in the taking of measures calculated to influence morale;

(e)

furnishes the enemy with arms or ammunition, or with supplies of any description, or with any other thing, whether similar to the foregoing or not;

(f)

harbours or protects an enemy who is not a prisoner of war;

(g)

fails to make known to the proper authorities any information received from an enemy;

(h)

gives any false air signal, or alters or interferes with any air signal or any apparatus for giving an air signal; or

(i)

when ordered by the person's superior officer, or otherwise under orders, to carry out any warlike operations in the air, fails to use the person's utmost exertions to carry such orders into effect.

(2)

A person subject to this Act who negligently causes or allows the capture, or destruction, by the enemy of any of the aircraft of the Defence Forces or of any co-operating forces commits an offence.

(3)

A person who commits an offence under this section is liable, upon conviction by a court-martial—

(a)

to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or

(b)

to life imprisonment or any lesser punishment provided for by this Act, in any other case.

59.
Communication with enemy
(1)

A person subject to this Act who, without authority, communicates with or gives intelligence to the enemy or to any unauthorised person, commits an offence and shall be liable, upon conviction by a court-martial—

(a)

to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or

(b)

to imprisonment for life or any less punishment provided for by this Act, in any other case.

(2)

For the purposes of this section, “intelligence” means information that is, or purports to be, about any matter that would or might be directly or indirectly useful to an enemy and, includes information about—

(a)

the number, description, armament, equipment, disposition, movement or condition of the Defence Forces or any co-operating forces, or of any unit of the Defence Forces or any co-operating forces, or any of the vehicles, aircraft or ships of the Defence Forces or any co-operating forces;

(b)

any operations or projected operations of the Defence Forces or of any co-operating forces, or of any unit thereof, or of any of their aircraft or ships;

(c)

any code, cipher, call sign, password, countersign or frequency;

(d)

any measures for the defence or fortification of any place on behalf of the Defence Forces or of any co-operating forces;

(e)

the number, description or location of any prisoners of war; or

(f)

weapons or munitions of war.

60.
Spying
(1)

A person who is subject to this Act who, in time of war or armed conflict is found acting as a spy—

(a)

in or about any place, vessel, aircraft, within the control or jurisdiction of the Defence Forces;

(b)

in or about any shipyard, any manufacturing or industrial plant; or

(c)

any other place or institution engaged in work in aid of the operations of war by the Defence Forces or elsewhere,

commits an offence and shall be liable, on conviction by a court-martial, to suffer death or other punishment provided for by this Act.

(2)

For purposes of this Act a person shall be deemed to be a spy if, acting clandestinely or on false pretences, the person obtains, or endeavors to obtain, intelligence in the zone of operations of the Defence Forces, with the intention of communicating it to the enemy.

(3)

For purposes of this section a person can be a spy only when, acting clandestinely, whether overtly or covertly or under false pretences, to obtain or seek to obtain information with the intent to convey it to a hostile party.

(4)

For purposes of this section, it is not essential that the accused obtain the information sought or that it be communicated.

61.
Offences by service member or officer when in action
(1)

A person who is subject to this Act commits an offence if that person, being a service member or officer, not otherwise in command—

(a)

fails to obey orders issued by a person in command to carry out an operation of war or, on coming into contact with an enemy that it is the duty of the service member or officer to engage, does not bring his or her vessel, aircraft or other material into action;

(b)

being in action, improperly withdraws from the action;

(c)

improperly fails to pursue an enemy or to consolidate a position gained,

(d)

improperly fails to relieve or assist a friendly force to the utmost of his or her power and ability, or

(e)

when in action, improperly forsakes his or her station.

(2)

A person who commits an offence under subsection (1) shall be liable, upon conviction by a court-martial—

(a)

if the officer or service member acted traitorously, to suffer death;

(b)

if the officer or service member acted from cowardice, to imprisonment for life or lesser punishment; or

(c)

in any other case a lesser punishment.

62.
Offences by a person in command when in action
(1)

A person who is subject to this Act commits an offence if that person, being in command of any aircraft, ship, vehicle or establishment of the Defence Forces—

(a)

fails to use the person's utmost exertions to bring into action any aircraft, ship or vehicle that it is the person's duty to bring into action;

(b)

surrenders to the enemy any aircraft, ship, vehicle of the defence, any establishment or any part of an establishment of the Defence Forces, when it is capable of being successfully defended or destroyed;

(c)

fails to pursue an enemy whom it is the person's duty to pursue, or to assist to the utmost of the person's ability any member of a friendly force whom it is the person's duty to assist; or

(d)

in the course of any action by or against the enemy, improperly abandons his or her command.

(2)

A person who commits an offence under subsection (1) shall be liable, upon conviction by a court-martial—

(a)

if the person acted traitorously, to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or

(b)

to imprisonment for life or any lesser punishment provided for by this Act, in any other case.

63.
Misconduct in action by others

A person who is subject to this Act, who fails, if not in command of any aircraft, ship, vehicle or establishment of the Defence Forces, to use the person's utmost exertions to carry out lawful orders of superior officers into execution when ordered to prepare for action by or against the enemy or during any such action, commits an offence and shall be liable, upon conviction by a martial court—

(a)

to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or

(b)

to imprisonment for life or any lesser punishment provided for by this Act, in any other case.

64.
Cowardice
(1)

A person who is subject to this Act commits an offence if that person, when before an enemy, and in such a manner as to show cowardice—

(a)

leaves the post, position or other place where it is the person's duty to be;

(b)

throws away the person's arms, ammunition or tools;

(c)

otherwise behaves in such a manner as to show cowardice;

(d)

induces other persons subject to this Act to commit an offence of cowardice under this section;

(e)

runs away; or

(f)

shamefully abandons, surrenders or delivers up any command, unit, place, or military property which it is his or her duty to defend under this section.

(2)

A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for life or any lesser punishment provided for by this Act.

(3)

In this section—

(a)

“running away” means—

(i) that the accused was before or in the presence of the enemy;
(ii) that the accused misbehaved by moving away; and
(iii) that the accused intended to avoid actual or impending combat with the enemy by running away.
(b)

“abandoning, surrendering, or delivering up command” means—

(i) that the accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property;
(ii) that without justification, the accused abandoned, surrendered; or
(iii) delivered up that command, unit, place, ship, or military property.
65.
Neglect of duty

A person subject to this Act who neglects to perform or performs negligently any duty lawfully imposed on that person commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.

66.
Offences against morale
(1)

A person who is subject to this Act commits an offence if that person—

(a)

spreads, whether orally, in writing, by signal or otherwise, reports relating to operations of the Defence Forces or of any co-operating forces, or of any part of any of the Defence Forces or of any co-operating Defence Forces, being reports calculated to create despondency or unnecessary alarm; or

(b)

when before the enemy, uses words calculated to create despondency or unnecessary alarm.

(2)

A person who commits an offence under the provisions of subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for life or any lesser punishment provided for by this Act.

67.
Advocating governmental change by force

A person subject to this Act who, within Kenya, unlawfully advocates for governmental change through the use of force by—

(a)

publishing or circulating any writing, printing, or document in whatever form, including electronic form;

(b)

teaching or advocating the use of force,

commits an offence and on conviction is liable to suffer death or to lesser punishment provided for under this Act.

68.
Being captured through disobedience or neglect, and failure to rejoin Defence Forces
(1)

A person who is subject to this Act commits an offence if that person—

(a)

is captured by an enemy through disobedience of orders or willful neglect of the person's duty;

(b)

having been captured by an enemy—

(i) fails to take any reasonable and available steps to rejoin the Defence Forces; or
(ii) prevents or discourages any other person subject to this Act who has been captured by the enemy from taking any reasonable and available steps to rejoin the Defence Forces.
(2)

A person who commits an offence under the provisions of subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for life or any lesser punishment provided for by this Act.

69.
Offences by or in relation to sentries, etc.
(1)

A person who is subject to this Act commits an offence if that person—

(a)

while on guard duty or watch—

(i) sleeps at the person's post; or
(ii) is drunk; or
(iii) leaves the person's post without having been regularly relieved or otherwise leaves any place where it is the person's duty to be;
(b)

when not on duty at a post, is asleep at a time when the person is not allowed to be asleep; or

(c)

strikes or otherwise uses force against a person on guard duty or watch, being a member of the Defence Forces or any co-operating forces or of any visiting force; or

(d)

by the threat of force, compels any person contemplated in paragraph (c), to let any person pass.

(2)

For the purposes of subsection (1)(a)(ii), a person is drunk if, owing to the influence of alcohol or any drug, whether alone or in combination with any other circumstances, the person—

(a)

is unfit to be entrusted with any duty that the person may be called upon to perform; or

(b)

behaves in a disorderly manner, or in a manner likely to bring discredit to the Defence Forces.

(3)

References in this section to a person on guard duty or watch are references to a person who—

(a)

is posted or ordered to patrol, or has adopted the position of sentry at a post or has undertaken the patrol;

(b)

is a member of a guard or other party mounted or ordered to patrol, for the purpose of protecting any persons, premises or place, or of controlling access to or egress from any premises or place, or of regulating traffic by road or rail or on any inland navigation; or

(c)

has been ordered to keep a specific watch.

(4)

A person who commits an offence under this section shall be liable, on conviction by a court-martial, to imprisonment—

(a)

for life or any lesser punishment provided for by this Act, if the offence was committed on active service; or

(b)

for not more than five years, in any other case.

70.
Looting and pillaging
(1)

A person who is subject to this Act commits an offence if, without lawful excuse, that person—

(a)

takes or steals any property from a person who has been killed, injured, captured or detained in the course of an action or operation of the Defence Forces or of any force co-operating with them; or

(b)

steals any property that has been left exposed or unprotected in consequence of an action or operation of the Defence Forces or of any force co-operating with them; or

(c)

takes any aircraft, ship, vehicle, equipment or stores abandoned by the enemy, other than for the public service;

(d)

searches such a person with the intention of taking property from the person.

(2)

A person who is subject to this Act commits an offence if, without lawful excuse, that person—

(a)

takes any property which has been left exposed or unprotected in consequence of—

(i) an action or operation of the Defence Forces or of any force co-operating with them; or
(ii) an event, or state of affairs, in relation to which such an action or operation is undertaken; or
(b)

searches any place or thing with the intention of taking property of a description mentioned in paragraph (a).

(3)

A person who is subject to this Act commits an offence if that person takes otherwise than for the public service any vehicle, equipment or stores abandoned by an enemy.

(4)

A person who commits an offence under this section, shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding ten years or any lesser punishment provided for under this Act.

71.
Offences against civil population
(1)

A person who is subject to this Act commits an offence if that person commits any wrongful act outside Kenya against the person or property of any member of the civil population.

(2)

A person who commits an offence under subsection (1), shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.

72.
Mutiny
(1)

A person who is subject to this Act commits an offence if that person—

(a)

takes part in a mutiny involving the use of violence or the threat of the use of violence; or

(b)

takes part in a mutiny having as its object or one of its objects—

(i) the refusal or avoidance of any duty or service against, or in connection with operations, against an enemy; or
(ii) the impeding of the performance of any such duty or service; or
(c)

incites any person to take part in such a mutiny, whether actual or intended.

(2)

For the purposes of this Part, “mutiny” means a combination between two or more persons who are subject to this Act, or between persons, at least two of whom are subject to this Act—

(a)

to overthrow or resist lawful authority in the Defence Forces or any co-operating forces, or in any part of the Defence Forces or any co-operating forces;

(b)

to disobey such authority in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service against, or in connection with operations against, the enemy; or

(c)

to impede the performance of any duty or service in the Defence Forces or in any co-operating forces, or in any part of the Defence Forces or of any co-operating forces.

(3)

A person who commits an offence under subsection (1) shall be liable, upon conviction by a court-martial—

(a)

to suffer death or any other punishment provided for by this Act if the offence committed falls under subsection (1)(a) and (b); or

(b)

to imprisonment for life or any lesser punishment provided for by this Act, in case of an offence under subsection (1)(c).

73.
Failure to suppress mutiny
(1)

A person who is subject to this Act commits an offence if that person—

(a)

fails to use the person's utmost exertions to suppress or prevent a mutiny; or

(b)

fails to report to a superior officer or any other appropriate authority without delay that the mutiny is taking place or is intended.

(2)

A person who commits an offence under subsection (1), shall be liable, upon conviction by a court-martial—

(a)

to suffer death or any other punishment provided for by this Act if the offence was committed with intent to assist an enemy; or

(b)

to imprisonment for life or any less punishment provided for by this Act, in any other case.

Offences relating to desertion and absence without leave

74.
Desertion
(1)

A person who is subject to this Act commits an offence if that person—

(a)

deserts; or

(b)

persuades or procures any person subject to this Act to desert.

(2)

A person deserts if that person—

(a)

with the intention, either at the time or formed later, of remaining permanently absent from duty—

(i) leaves the Defence Forces; or
(ii) fails to join or rejoin the Defence Forces when it is the person's duty to join or rejoin them;
(b)

being an officer, enlists in or enters the Defence Forces without having resigned the person's commission;

(c)

being a service member, enlists in or enters the Defence Forces without having been discharged from any previous enlistment;

(d)

is absent without leave, with intent to avoid serving in any place outside Kenya, or to avoid service or any particular service when before an enemy; or

(e)

is absent without leave for a continuous period of more than ninety days.

(3)

A person who commits an offence under subsection (1), shall be liable, upon conviction by a court-martial—

(a)

to imprisonment for life or any lesser punishment provided for by this Act if—

(i) the offence was committed under subsection (1)(a), the person was on active service or under orders for active service at the time when it was committed; or
(ii) the offence was committed under subsection (1)(b) the person in relation to whom it was committed was on active service or under orders for active service at that time; or
(b)

to imprisonment for not more than two years, in any other case.

(4)

In addition to, or without any other punishment, a court-martial that convicts an officer or service member of desertion; other than a reservist called out on permanent service, may direct that the whole or any part of any service preceding the period of desertion shall be forfeited.