19. Rights and fundamental freedoms
1. The Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies.
2. The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
3. The rights and fundamental freedoms in the Bill of Rights-
a. belong to each individual and are not granted by the State;
b. do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
c. are subject only to the limitations contemplated in this Constitution.
21. Implementation of rights and fundamental freedoms
1. It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
2. The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.
3. All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
4. The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
24. Limitation of rights and fundamental freedoms
1. A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
a. the nature of the right or fundamental freedom;
b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
e. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
25. Fundamental rights and freedoms that may not be limited
Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-
a. freedom from torture and cruel, inhuman or degrading treatment or punishment;
b. freedom from slavery or servitude;
28. Human dignity
Every person has inherent dignity and the right to have that dignity respected and protected.
29. Freedom and security of the person
Every person has the right to freedom and security of the person, which includes the right not to be-
a. deprived of freedom arbitrarily or without just cause;
b. detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
c. subjected to any form of violence from either public or private sources;
d. subjected to torture in any manner, whether physical or psychological;
e. subjected to corporal punishment; or
f. treated or punished in a cruel, inhuman or degrading manner.
30. Slavery, servitude and forced labour
1. A person shall not be held in slavery or servitude.
2. A person shall not be required to perform forced labour.
41. Labour relations
1. Every person has the right to fair labour practices.
2. Every worker has the right-
a. to fair remuneration;
b. to reasonable working conditions;
c. to form, join or participate in the activities and programmes of a trade union; and
d. to go on strike.
3. Every employer has the right-
a. to form and join an employers organisation; and
b. to participate in the activities and programmes of an employers organisation.
4. Every trade union and every employers' organisation has the right-
a. to determine its own administration, programmes and activities;
b. to organise; and
c. to form and join a federation.
5. Every trade union, employers' organisation and employer has the right to engage in collective bargaining.
2. Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
1. Every child has the right-
d.to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
not to be detained, except as a measure of last resort, and when detained, to be held-
i. for the shortest appropriate period of time; and
ii. separate from adults and in conditions that take account of the child's sex and age.
2. A child's best interests are of paramount importance in every matter concerning the child.
Article 151: Detention of females for immoral purposes.
(1) Any person who detains any other person against his or her will –
(a) in or upon any premises with intent that he or she may have unlawful sexual connection with any person, whether any particular person or generally; or
(b) in any brothel,
is guilty of a felony.
(2) A person in or upon any premises for the purpose of having any unlawful sexual connection, or in any brothel, shall be deemed to be detained therein by any other person who, with intent to compel or induce that person to remain in or upon the premises or in the brothel-
(a) withholds from that person any wearing apparel or other property belonging to that person; or
(b) where wearing apparel has been lent or otherwise supplied to that person by or at his direction, threatens that person with legal proceedings in the event that that person should take away the wearing apparel so lent or supplied.
(3) No legal proceedings, whether civil or criminal, shall be taken against only such person for taking away or being found in possession of only such wearing apparel as was necessary to enable her leave such premises or brothel.
Article 153: Male person living on earnings of prostitution or soliciting
(1): Every male person who –
(a) knowingly lives wholly or in part on the earnings of prostitution; or
(b) in any public place persistently solicits or importunes for immoral purposes,
is guilty of a felony.
(2) Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person, or generally, he shall unless he satisfies the court to the contrary be deemed to be knowingly living on the earnings of prostitution.
Article 154: Woman living on earnings of prostitution or aiding, etc., prostitution
Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, is guilty of a felony.
Article 156: Brothels
Any person who –
(a) keeps or manages or assists in the management of a brothel; or
(b) being the tenant, lessee or occupier, or person in charge, of any premises, knowingly permits the premises or any part thereof to be used as a brothel; or
(c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the same or any part thereof with the knowledge that the premises or some part thereof are or is to be used as a brothel, or is willfully a party to the continued use of the premises as a brothel, is guilty of a felony.
Article 173: Master not providing for servants or apprentices
Any person who being legally liable, either as master or mistress, to provide for any apprentice or servant necessary food, clothing or lodging, willfully and without lawful excuse refuses or neglects to provide the same, or unlawfully and maliciously does or causes to be done any bodily harm to such apprentice or servant so that the life of such apprentice or servant is endangered or that his health has been or is likely to be permanently injured, is guilty of a misdemeanor.
Article 256: Definition of abduction.
Any person who by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person.
Article 260: Kidnapping or abducting in order to subject to grievous harm, slavery, etc
Any person who kidnaps or abducts any person in order that the person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, is guilty of a felony and is liable to imprisonment for ten years.
Article 261: Wrongfully concealing or keeping in confinement kidnapped or abducted person
Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person is guilty of a felony and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement.
Article 263: Punishment for wrongful confinement
Whoever wrongfully confines any person is guilty of a misdemeanor and is liable to imprisonment for one year or to a fine of fourteen thousand shillings.
Article 266: Unlawful compulsory labour
Any person who unlawfully compels any person to labour against the will of that person is guilty of a misdemeanour.
266A. Offences Under Part
Where it appears that any of the offences specified under this Part is committed for the purpose of exploitation, the person committing the offence shall be charged with the appropriate offence as specified in the Counter Trafficking in Persons Act.
In this Act, unless the context otherwise requires—
“exploitation” includes but is not limited to—
(a) keeping a person in a state of slavery;
(b) subjecting a person to practices similar to slavery;
(c) involuntary servitude;
(d) forcible or fraudulent use of any human being for removal of organs or body parts;
(e) forcible or fraudulent use of any human being to take part in armed conflict;
(f) forced labour;
(g) child labour;
(h) sexual exploitation;
(i) child marriage;
(j) forced marriage;
“forced labour” means the extraction of work or services from any person for the purpose of exploitation;
“slavery” is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised;
3. Trafficking in persons
(1) A person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbours or receives another person for the purpose of exploitation by means of—
(a) threat or use of force or other forms of coercion;
(e) abuse of power or of position of vulnerability;
(f) giving payments or benefits to obtain the consent of the victim of trafficking in persons; or
(g) giving or receiving payments or benefits to obtain the consent of a person having control over another person.
(2) The consent of a victim of trafficking in persons to the intended exploitation shall not be relevant where any of the means set out in subsection (1) have been used.
(3) The recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set out in subsection (1) of this Act.
(4) An act of trafficking in persons may be committed internally within the borders of Kenya or internationally across the borders of Kenya.
(5) A person who traffics another person, for the purpose of exploitation, commits an offence and is liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life.
(6) A person who finances, controls, aids or abets the commission of an offence under subsection (1) shall be liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life.
4. Acts that promote child trafficking
(1) A person who for the purpose of trafficking in persons—
(a) adopts a child or offers a child for adoption;
(b) fosters a child or offers a child for fostering; or
(c) offers guardianship to a child or offers a child for guardianship,
commits an offence.
(2) A person who initiates or attempts to initiate adoption, fostering or guardianship proceedings for the purpose of subsection (1) commits an offence.
(3) A person who commits an offence under this section is liable to imprisonment for a term of not less than thirty years or to a fine of not less than twenty million shillings or to both and upon subsequent conviction, to imprisonment for life.
5. Promotion of trafficking in persons
A person who—
(a) knowingly leases, or being the occupier thereof, permits to be used any house, building, or other premises for the purpose of promoting trafficking in persons;
(b) publishes, exports or imports, any material for purposes of promoting trafficking in persons; or
(c) manages, runs or finances any job recruitment agency for the purposes of promoting trafficking in persons;
(d) by any other means promotes trafficking in persons,
commits an offence and is liable to imprisonment for a term of not less than twenty years or to a fine of not less than twenty million shillings or to both and upon subsequent conviction, to imprisonment for life.
(4) In this section—
"crime against humanity" has the meaning ascribed to it in article 7 of the Rome Statute and includes an act defined as a crime against humanity in conventional international law or customary international law that is not otherwise dealt with in the Rome Statute or in this Act;
"war crime" has the meaning ascribed to it in paragraph 2 of article 8 of the Rome Statute.
A person who intentionally and unlawfully compels, induces or causes another person to engage in an indecent act with –
(a) the person compelling, inducing or causing the other person to engage in the act;
(b) a third person;
(c) that other person himself or herself; or
(d) an object, including any part of the body of an animal, in circumstances where that other person –
(i) would otherwise not have committed or allowed the indecent act; or
(ii) is incapable in law of appreciating the nature of an indecent act, including the circumstances referred to in section 43,
is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than five years.
Article 13: Child trafficking.
A person including a juristic person who, in relation to a child-
(a) knowingly or intentionally makes or organizes any travel arrangements for or on behalf of a child within or outside the borders of Kenya, with the intention of facilitating the commission of any sexual offence against that child, irrespective of whether the offence is committed;
(b) supplies, recruits, transports, transfers, harbors or receives a child, within or across the borders of Kenya, for purposes of the commission of any sexual offence under this Act with such child or any other person, is, in addition to any other offence for which he or she may be convicted,
guilty of the offence of child trafficking and is liable upon conviction to imprisonment for a term of not less than ten years and where the accused person is a juristic person to a fine of not less than two million shillings.
Article 14: Child sex tourism
A person including a juristic person who –
(a) makes or organizes any travel arrangements for or on behalf of any other person, whether that other person is resident within or outside the borders of Kenya, with the intention of facilitating the commission of any sexual offence against a child, irrespective of whether that offence is committed; or
(b) prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual offence against a child
(c) introduces, organizes or facilitates contact with another person under the auspices of promoting tourism, in any manner, in order to promote conduct that would constitute a sexual offence against a child,
is guilty of an offence of promoting child sex tourism and is liable upon conviction to imprisonment for a term of not less than ten years and where the accused person is a juristic person to a fine of not less than two million shillings.
Article 15: Child prostitution.
Any person who –
(a) knowingly permits any child to remain in any premises, for the purposes of causing such child to be sexually abused or to participate in any form of sexual activity or in any obscene or indecent exhibition or show;
(b) acts as a procurer of a child for the purposes of sexual intercourse or for any form of sexual abuse or indecent exhibition or show;
(c) induces a person to be a client of a child for sexual intercourse or for any form of sexual abuse or indecent exhibition or show, by means of print or other media, oral advertisements or other similar means;
(d) takes advantage of his influence over, or his relationship to a child, to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show;
(e) threatens or uses violence towards a child to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show;
(f) intentionally or knowingly owns, leases, rents, manages, occupies or has control of any movable or immovable property used for purposes of the commission of any offence under this Act with a child by any person;
(g) gives monetary consideration, goods, other benefits or any other form of inducement to a child or his parents with intent to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show,
commits the offence of benefiting from child prostitution and is liable upon conviction to imprisonment for a term of not less than ten years.
Any person who –
(a) intentionally causes or incites another person to become a prostitute; and
(b) intentionally controls any of the activities of another person relating to that persons prostitution; and does so for or in expectation of gain for him or her self or a third person,
is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than five years or to a fine of five hundred thousand shillings or to both.
Note: Prohibits Female Genital Mutilation on children below the age of 18.
Article 4: Prohibition against forced labour
(1) No person shall use or assist any other person in recruiting, trafficking or using forced labour.
(2) The term “forced or compulsory labour” shall not include―
(a) any work or service exacted by virtue of compulsory military service laws for work of a purely military character: Provided that forced or compulsory recruitment of children for use in armed conflict shall be deemed to be forced or compulsory labour;
(b) any work or service which forms part of the normal civic obligations of the citizens of Kenya; The Employment Act, 2007 12
(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the work or service is carried out under the supervision and control of a public authority and that the person is not hired out to or placed at the disposal of private persons, companies or associations;
(d) any work or service exacted in cases of an emergency, such as in the event of war or disaster or threat of calamity in any circumstance that would endanger the existence or the well - being of the whole or part of the population; and
(e) minor communal services performed by the members of the community in the direct interest of the said community provided the members of the community or their representatives are consulted.
(3) A person who contravenes the provisions of this section commits an offence and shall, on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.