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The Public Security (Detained and Restricted Persons) Regulations

Legal Notice 234 of 1978

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The Public Security (Detained and Restricted Persons) Regulations
Citation
Legal Notice 234 of 1978
Primary work
Preservation of Public Security Act
Date
31 December 2022
Language
English
Type
Legal Notice
Original enactment
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LAWS OF KENYA

PRESERVATION OF PUBLIC SECURITY ACT

THE PUBLIC SECURITY (DETAINED AND RESTRICTED PERSONS) REGULATIONS

LEGAL NOTICE 234 OF 1978

  • Published in Kenya Gazette Vol. LXXX—No. 45 on 10 November 1978
  • Commenced on 17 October 1978
  1. [Amended by Public Security (Detained and Restricted Persons) (Amendment) Regulations, 1986 (Legal Notice 206 of 1986) on 29 August 1986]
  2. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

Part I – PRELIMINARY

1. Citation

These Regulations may be cited as the Public Security (Detained and Restricted Persons) Regulations, 1978, and shall be deemed to come into operation on the 17 th October, 1978.

2. Interpretation

In these Regulations—"area of restriction" means any area specified in a restriction order as the area within which a restricted person shall reside;"committee of inspection" means a committee of inspection for inspecting areas of restriction or place of detention or both established under rules made under these Regulations;"detained person" means a person in respect of whom a detention order is in force;"detection order" means an order made under regulation 6 of those Regulations;"place of detention" means—
(a)a part of a prison set aside by the Commissioner of Prisons as a place of detention for the purposes of these Regulations; or
(b)such place, other than a prison or a part of a prison, as the Cabinet Secretary may, by notice in the Gazette, declare to be a place of detention for the purposes of these Regulations;
"police officer" includes an administration police officer;"prison" means a prison within the meaning of the Prisons Act (Cap. 90);"removal order" means an order for the removal of a person, made under regulation 13 of these Regulations;"restricted person" means a person in respect of whom a restriction order is in force;"restriction order" means an order made under regulation 3 of these Regulations;"security officer" means a public officer appointed by the Cabinet Secretary to be the security officer for the purposes of these Regulations, and includes any public officer from time to time deputed by the Cabinet Secretary to exercise the functions and perform the duties of that office;"the Tribunal" means the Review Tribunal established by regulation 8 of these Regulations.

Part II – RESTRICTED PERSONS

3. Power to make restriction orders

(1)If the Cabinet Secretary is satisfied that it is necessary for the preservation of public security to exercise control over the residence and movement of any person, he may order that such person shall reside in the area therein specified, or in any place to which he may be ordered by a removal order to remove or be removed, in accordance with and subject to such conditions as may be specified in the order.
(2)Where a restriction order has been made in respect of any person, that person shall forthwith remove or be removed to the area specified as aforesaid (if not already, at the date of the order, within such area), and shall reside in the area so specified, or in any such place as aforesaid, in accordance with and subject to the provisions of these Regulations and such conditions as aforesaid, for so long as the order continues in force.
(3)The Cabinet Secretary may at any time vary or revoke a restriction order.

4. Conditions in restriction orders

Without prejudice to the generality of regulation 3 of these Regulations, the conditions specified in a restriction order made in respect of any person may—
(a)prohibit, restrict or control the possession, use, acquisition or disposal by him of any specified movable property;
(b)restrict his association or communication with other persons, and the receipt and dispatch by him of postal, telegraphic and other communications;
(c)require him to reside in a particular house or building within the area to which he is restricted, and to remain in such house or building during such hours of darkness as may be specified in the order;
(d)prohibit or restrict his movement or presence within or without the area to which he is restricted, or any part thereof;
(e)require him to report at specified intervals to a specified authority.

5. Permit to leave area of restriction

(1)The Cabinet Secretary may, at his discretion, issue to a restricted person a permit to leave temporarily the area to which he is restricted, subject to such conditions as he may think fit to impose, and such conditions shall be specified in the permit.
(2)Without prejudice to the generality of subparagraph (1) of this Regulation, a permit issued under this regulation may direct that the restricted person shall, during the whole or any specified part of the period of his absence from the area—
(a)remain in police or prison custody; or
(b)be accompanied by and comply which the directions of such person, or report himself at such times or intervals, at such places and to such persons, as may be specified in the permit.
(3)A permit issued under this regulation shall specify the purpose for which it is issued and the period during which the restricted person is thereby authorized to remain outside the said area.
(4)Particulars of every permit issued under this regulation shall be forthwith sent to the security officer.
(5)Upon a permit expiring or being revoked by the Cabinet Secretary, the restricted person shall forthwith become subject to all the terms of the restriction order.

Part III – DETAINED PERSONS

6. Power to make detention orders

(1)If the Cabinet Secretary is satisfied that it is necessary for the preservation of public security to exercise control, beyond that afforded by a restriction order, over any person, he may order that that person shall be detained.
(2)Where a detention order has been made in respect of any person, that person shall be detained in a place of detention in accordance with these Regulations, for as long as the detention order is in force, and, while so detained, shall be deemed to be in lawful custody.
(3)The Cabinet Secretary may at any time revoke a detention order.

7. Permit to leave place of detention

(1)The Cabinet Secretary may, at his discretion, issue to a detained person a permit to leave the place of detention for a fixed period until the permit is revoked by the Cabinet Secretary in writing, subject to such conditions as he may think fit to impose, and such conditions shall be specified in the permit.
(2)The provisions of regulation 5 of these Regulations shall apply mutatis mutandis to a permit issued under this Regulation and to a detained person as they apply to a permit issued under that regulation and a restricted person.

Part IV – REVIEW TRIBUNAL

8. Establishment of Review Tribunal

(1)There is hereby established a tribunal, called the Review Tribunal, which shall be the tribunal for reviewing and making recommendations on the cases of restricted persons under section 81(4) and (5) and on the cases of detained persons under section 83(2) and (3) of the Constitution of Kenya.
(2)The Tribunal shall consist of the following persons appointed by the President—
(a)one member, being a person who is qualified to be appointed as a judge of the High Court;
(b)one member, being a person who is or has been a magistrate empowered to hold a subordinate court of the first class; and
(c)not less than two, and not more than four, other members.
(3)The Tribunal shall be presided over by the member appointed under paragraph (2)(a) of this regulation, or in his absence, the member appointed under paragraph (2)(b) of this regulation:Provided that in the event of any of the members referred to in this paragraph being absent from any meeting of the Tribunal, the members present at that meeting shall elect one of their number who is an advocate to be the presiding member for the purposes of that meeting.
(4)The Cabinet Secretary shall appoint a public officer to be secretary of the Tribunal.
(5)A quorum of the Tribunal shall be the presiding member and two other members.
(6)A decision of the Tribunal shall be made by a majority of the votes of the members present and voting, and, in the event of any equality of votes, the presiding member shall have and exercise a casting vote in addition to his original vote.
(7)Sittings of the Tribunal shall be convened by the presiding member as necessary.
(8)Subject to paragraph (5), the Tribunal shall not be disqualified for the transaction of any business by reason of any vacancy among the members thereof.
(9)Without prejudice to section 83(2)(d) and (e) of the Constitution of Kenya, a restricted person or detained person shall have the right to make written submissions to the Tribunal and, if he so desires, to be heard in person by the Tribunal when his case is under consideration; and the Tribunal may, if it so sees fit, require the attendance before it of any such person whose case is under consideration.
(10)Subject to the provisions of this regulation, the Tribunal shall determine its own procedure, and shall not be bound by the law of evidence or procedure applicable in legal proceedings, whether civil or criminal, and in particular shall not be required to admit the public to its proceedings.
(11)Every member of the Tribunal, in and in relation to the discharge of his functions, shall be deemed to be a public officer and shall have the like privileges, protections and immunities as are by law conferred upon a judge in and in relation to the execution of his office.
(12)The members of the Tribunal shall be paid such expenses and allowances as the Cabinet Secretary, in consultation with the Treasury, may authorize.[[L.N. 206/1986, r. 2.]

9. Authentication of reports of Tribunal

Every recommendation made by the Tribunal to the Cabinet Secretary under section 81(5) or 83(3) of the Constitution of Kenya shall be signed by each member of the Tribunal participating in the recommendation, and, where any such member dissents from the recommendation or any part thereof, such dissent, the extent thereof and the reasons therefore shall be recorded in the recommendation by the dissenting member.

Part V – SUPPLEMENTAL

10. Delivery of order and of statement of grounds thereof

(1)Where a restriction order or detention order is made in respect of any person, the security officer shall, as soon as reasonably practicable and in any case not more than five days after commencement of his restriction or detention, cause a copy thereof to be delivered to such person, together with a statement in writing in a language that he understands specifying in detail the grounds upon which he is restricted or detained, and of the provisions of section 81(4) and (5), or section 83(2) and (3), as the case may be, of the Constitution concerning review.
(2)Nothing in this regulation shall be construed as requiring the security officer or any other public officer, unless thereunto authorized or directed by the Cabinet Secretary, to disclose any fact, information or document the disclosure of which, in the opinion of the security officer or, as the case may be, of such other public officer would be likely to prejudice the preservation of public security or would otherwise be contrary to the public interest.

11. Responsibilities of security officer

The security officer shall be responsible for—
(a)the general control and administration of all areas of restriction;
(b)the security and proper treatment of all restricted persons.

12. Records of restricted persons and detained persons

(1)The security officer shall maintain or cause to be maintained a record in respect of every restricted person and every detained person, containing—
(a)the name, photograph and fingerprints or palmprints, and such other particulars, of the person as the security officer shall determine;
(b)a copy of the restriction order or detention order made in respect of such person, and particulars, with dates, of any variation or revocation thereof, and of any permit issued in respect thereof;
(c)the date and result of every review of the order;
(d)such other particulars, documents or copies, if any, as the security officer shall determine.
(2)It shall be lawful for any administrative officer, police officer or prison officer to search, and to take or cause to be taken the fingerprints, palmprints or photograph of any restricted person and any detained person, and to use or cause to be used such force as may be reasonably necessary for that purpose, and any prints and photographs so taken shall be recorded in such manner as the security officer may direct.

13. Removal of orders

(1)
(a)The Cabinet Secretary or the security officer may at any time order the removal of a restricted person from the area of restriction to which he is for the time being restricted to another area of restriction.
(b)The Commissioner of Prisons may at any time order the removal of a detained person from the place of detention in which he is for the time being detained to another place of detention.
(2)A medical officer, if he is of opinion that a restricted person or a detained person—
(a)by reason of illness or leprosy should be removed to a hospital or leprosarium; or
(b)by reason of unsoundness of mind should be removed to a mental hospital, may order that restricted person or detained person to be removed to a hospital, leprosarium or mental hospital, as the case may be, and thereupon such restricted person or detained person shall be removed to that hospital, leprosarium or mental hospital and detained there until another removal order is made in respect of him.
(3)Where a restricted person or detained person is detained in a hospital, leprosarium or mental hospital under paragraph (2) of this regulation, a medical officer, if of opinion that further detention in the institution is not required, may order that the person shall be removed to his area of restriction or to a place of detention as the case may be, if he is still liable to be restricted or detained, and if he is not so liable he shall be released.
(4)Where a detained person is detained in a hospital, leprosarium or mental hospital under paragraph (2) of this regulation, he shall be deemed to be in the lawful custody of the superintendent of the institution.

14. Removal in custody

Where any person is, by or under these Regulations, ordered to remove or be removed or to remain or be detained in any place or area, then, if at any time while that order remains effective that person is outside that place or area otherwise than under and in accordance with the terms and conditions of a permit issued under these Regulations, he shall forthwith remove to that place or area, and may be removed thereto in custody by any administrative officer, police officer or prison officer, and, for the purpose of effecting such removal, any such officer as aforesaid may keep such person in custody in such place and for such period as may be necessary to make arrangements for such removal, and may use such force as may be reasonably necessary; and any such person while so kept in custody shall be deemed to be in lawful custody.

15. Offences

Any person who—
(a)evades or attempts to evade, or forcibly resists, removal to any place or area in pursuance of these Regulations or of any order thereunder, or attempts to leave or escape from lawful custody during the course of such removal; or
(b)otherwise than under and in accordance with the terms and conditions of permit issued under these Regulations, at any time leaves or attempts to leave or is outside any place or area in which he is for the time being required, by these regulations or by any order or direction thereunder, to remain; or
(c)wilfully contravenes or fails or neglects to comply with any of the provisions, terms or conditions of any order, direction or permit made, given or issued under these Regulations; or
(d)wilfully shows disrespect, in speech or manner, to the Tribunal or to any committee of inspection, or to any member of the Tribunal or of any such committee; or
(e)being the holder of any permit issued under these Regulations, wilfully fails or neglects to produce it on demand to any administrative officer, police officer or prison officer; or
(f)wilfully obstructs or resists, or knowingly misleads or impedes, any person lawfully acting in the execution of any duty imposed, or in the exercise of any power conferred, by or under these Regulations; or
(g)conceals or harbours any person whom he knows or has reason to believe to be unlawfully outside any place or area which such person is, by or under these Regulations, prohibited from leaving or in which he is required to remain; or
(h)knowingly does any act calculated to prejudice the maintenance of peace and good order in any area of restriction;
(i)conceals or habours any person whom he knows or has reason to believe to be unlawfully outside any place or area which such person is, by or under these Regulations, prohibited from leaving or in which he is required to remain, shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment.

16. Powers of arrest and search

Any administrative officer, police officer or prison officer may, without warrant, arrest any person whom he suspects on reasonable grounds of having committed an offence under these Regulations or any rules made thereunder, or search any person on whom or any place or thing in or on which he suspects on reasonable grounds that any evidence of the commission of an offence under these Regulations or any rules made thereunder may be found.

17. Rules

The Cabinet Secretary may make rules—
(a)for the regulation and administration of, and for good order in places of detention, including in particular (but without prejudice to the generality of the foregoing)—
(i)matters affecting health, hygiene and sanitation therein;
(ii)the discipline of detained persons, including the provisions of discipline, not exceeding those prescribed by the Prison Rules;
(iii)visits and letters to detained persons, where not prejudicial to the preservation of public security;
(iv)the possession of articles by detained persons;
(v)requiring detained persons to perform work, where reasonably necessary in the interests of hygiene or for the maintenance of the place of detention;
(vi)the rations and diet of detained persons;
(b)for the good administration of areas of restriction or of any area of restriction, the well-being of persons residing therein and the preservation of peace and good order therein;
(c)establishing a committee of inspection for inspection of areas of restriction and places of detention and defining the committee’s powers, duties and remuneration.
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History of this document

31 December 2022 this version
29 August 1986
10 November 1978
17 October 1978
Commenced