THE HERITAGE AND MUSEUMS BILL, 2023

Background

The Heritage and Museums Bill, 2023 aims to align the conservation, preservation, and management of Kenya's cultural and natural heritage with the devolved governance system established under the Constitution of Kenya. By repealing the National Museums and Heritage Act (Cap. 216), the Bill seeks to clarify the concurrent roles of the national and county governments in managing historical monuments, protected areas, and cultural repositories.

Key Amendments

The Bill makes consequential amendments to several existing laws to incorporate the new heritage management mechanisms:

• The Mining Act (Cap. 306): Section 36 is amended to require approval from the Cabinet Secretary responsible for Heritage before any mining permit can be granted in protected heritage areas (including caves and rock shelters).
• The Physical and Land Use Planning Act (Cap. 303): Section 71 is updated to replace references to the repealed 2006 Act with references to the new Heritage and Museums Act, 2023.
• The Environment Management and Co-ordination Act (Cap. 387): Section 38 is amended to require mandatory heritage impact assessments under the provisions of the new Act.
• The Land Registration Act (Cap. 300): Section 76 is amended to allow the Registrar to register restrictions as a charge over land when notified of a heritage declaration.

New Obligations

• Exploration and Reporting: Any person wishing to search for buried monuments or antiquities must obtain an exploration licence from the Cabinet Secretary (Section 44). Upon discovering any monument or object of archaeological or paleontological interest, the finder must notify the National Museums within seven days (Section 48).
• Export Permits: Section 69 prohibits the export of any monument, antiquity, or protected object without a written permit from the Cabinet Secretary. Export must occur exclusively through designated customs ports of exit (Section 70).
• Heritage Registers: County governments are obligated to compile and maintain a heritage register of local resources and furnish the National Museums with regular updates to maintain a national inventory (Section 38).

Penalties

• General Penalty: Any offence under the Act for which no specific penalty is provided carries a fine not exceeding KSh 100,000, imprisonment for up to twelve months, or both (Section 98).
• Exploration and Discovery Offences: Conducting unauthorized excavations or failing to report archaeological discoveries carries a fine not exceeding KSh 1 million, imprisonment for up to twelve months, or both (Section 50).
• Protected Area Violations: Violating access or activity restrictions in declared protected areas carries a fine up to KSh 1 million, imprisonment up to twelve months, or both (Section 54).
• Vandalism of Monuments: Defacing, altering, or destroying a monument is punishable by a fine not exceeding KSh 1 million, imprisonment for up to twelve months, or both (Section 62).
• Illegal Export: Exporting or attempting to export cultural heritage objects without a valid permit carries a fine not exceeding KSh 1 million, imprisonment for up to twelve months, or both (Section 71).

Transitional Provisions

Section 102 provides that all rights, assets, obligations, and contracts vested in the former National Museums of Kenya continue under the newly established corporate body. Assets and liabilities related to museums functions assigned to county governments shall transfer to the respective county governments in line with the Intergovernmental Relations Act.