The National Cohesion and Integration Bill, 2023

Background

The National Cohesion and Integration Bill, 2023 seeks to repeal and replace the National Cohesion and Integration Act, 2008 (No. 12 of 2008). The Bill aligns the national legal framework for cohesion, integration, and non-discrimination with the 2010 Constitution of Kenya, specifically giving effect to constitutional provisions on national unity, equality, and public service values under Articles 10, 27, and 232.

Key Amendments

• Commission Reconstitution: Re-establishes the National Cohesion and Integration Commission (NCIC) as a body corporate comprising a chairperson and eight other members nominated by the President and approved by the National Assembly (Sections 4 and 11).
• Decentralization: Mandates the creation of a headquarters in Nairobi and nine regional offices to ensure national coverage (Section 10).
• Alternative Dispute Resolution (ADR): Explicitly empowers the Commission to employ ADR mechanisms, including the establishment of ad hoc or standing peace committees, mediation committees, and traditional justice mechanisms to manage local conflicts (Section 56).
• Investigative Powers: Empowers the Commission to summon witnesses, request the discovery of documents, requisition public records, and issue compliance or prohibition notices (Sections 7, 62, and 64).

New Obligations

• Public Sector Diversity Thresholds: Public entities must ensure their workforce reflects the diversity of the Kenyan people. No public entity may have more than one-fifth (20%) of its employees from the same ethnic community (Section 41).
• Equitable Distribution of Resources: Public officers in charge of public resources must ensure they are distributed geographically and equitably, taking into account diversity, population, and poverty index (Section 45).
• Property Management Non-discrimination: Property managers are prohibited from discriminating on ethnic grounds when offering, letting, managing, or disposing of public or private property (Section 46).
• Conflict of Interest Disclosures: Members or staff of the Commission must declare any interest in matters under consideration and recuse themselves from meetings (Section 30).

Penalties

• Employment Discrimination: A fine not exceeding KSh 5 million, imprisonment for up to 3 years, or both for violating employment diversity guidelines (Section 41(5)).
• Conflict of Interest: A fine not exceeding KSh 3 million, imprisonment for up to 7 years, or both for failing to disclose or transacting unauthorized business with the Commission (Section 30(5)).
• Ethnic Contempt & Hate Speech: A fine not exceeding KSh 1 million, imprisonment for up to 3 years, or both for inciting ethnic hatred or publishing contemptuous material (Section 47(2)).
• Discrimination in Public Resources & Membership Organizations: A fine not exceeding KSh 1 million, imprisonment for up to 3 years (public resources) or 1 year (membership organizations), or both (Sections 43(5) and 45(4)).
• General Penalty: For any offence where no specific penalty is provided, a fine not exceeding KSh 1 million, imprisonment for up to 1 year, or both (Section 82).

Transitional Provisions

• Repeal: Repeals the National Cohesion and Integration Act, 2008 (No. 12 of 2008) (Section 85).
• Assets and Liabilities: Vests all rights, obligations, assets, and contracts of the former Commission into the reconstituted Commission (Section 87).
• Commissioners and Staff: Permits existing members of the former Commission to serve out the unexpired period of their terms (Section 88). The Secretary and existing staff of the former Commission continue in office under their current terms of service (Sections 89 and 90).