The Sexual Offences (Dangerous Offenders DNA Data Bank) Regulations

Legal Notice 133 of 2008

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Legal Notice 133 of 2008
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Sexual Offences Act
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LAWS OF KENYA

SEXUAL OFFENCES ACT

THE SEXUAL OFFENCES (DANGEROUS OFFENDERS DNA DATA BANK) REGULATIONS

LEGAL NOTICE 133 OF 2008

  • Published in Kenya Gazette Vol. CX—No. 83 on 24 October 2008
  • Commenced on 24 October 2008
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

1. Citation

These Regulations may be cited as the Sexual Offences (Dangerous Offenders DNA Data Bank) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—“dangerous offender” means a person declared as such under section 39 of the Act;“Director” means the Director of the Criminal Investigations Department;“DNA data bank” means the Dangerous Offenders DNA Data Bank established under regulation 3.

3. Establishment of the DNA data bank

The Director shall, for purposes of criminal identification, establish and maintain a data bank to be known as the Dangerous Offenders DNA Data Bank, which shall consist of a crime scene index and dangerous offenders’ index.

4. Contents of crime scene index

The crime scene index shall contain DNA profiles derived from bodily substances that are found—
(a)at any place where a sexual offence was committed;
(b)on or within the body of the victim of a sexual offence;
(c)on anything worn or carried by the victim at the time when a sexual offence was committed; or
(d)on or within the body of any person or thing or at any place associated with the commission of a sexual offence.

5. Contents of dangerous offenders’ index

The dangerous offenders’ index shall contain—
(a)DNA profiles derived from bodily substances as provided for under section 122A(2) of the Penal Code (Cap. 63); and
(b)profiles derived from lubricants, any kind of hair or skin.

6. Additional contents

In addition to the DNA profiles referred to in regulations 4 and 5 above, the DNA data bank shall contain, in relation to each of the profiles, information from which can be established—
(a)in the case of a profile in the crime scene index, the case number of the investigation associated with the bodily substances from which the profile was derived; and
(b)in the case of a profile in the dangerous offenders index, the identity of the person from whose bodily substance the profile was derived.

7. Procedure on receipt of DNA profile

On receipt of a DNA profile, the Director shall compare it with the DNA profiles in the data bank in order to determine whether it is already contained in the data bank, and may then communicate, for the purposes of the investigation or prosecution of a criminal offence, the following information to any other law enforcement agency considered appropriate—
(a)whether the DNA profile is already contained in the data bank; and
(b)any information, other than the DNA profile itself, that is contained in the data bank in relation to that DNA profile.

8. DNA profiles from foreign States, etc.

On receipt of DNA profile from the Government of a foreign State, an international organisation established by the Governments of States or an institution of any such Government or international organization, the Director may compare the DNA profile with those in the DNA data bank in order to determine whether it is already contained in the bank and may then communicate information referred to in regulation 7 to that Government, international organization or institution.

9. Communication of DNA profile by Director

The Director may communicate a DNA profile contained in the crime scene index to the Government of a foreign State, an international organization established by the Governments of states or an institution of any such Government or international organisation.

10. Application of regulations 8 and 9

Regulations 8 and 9 shall apply only if the Government of Kenya or one of its institutions has entered into an agreement or arrangement, in accordance with an Act of Parliament, with that Government, international organization or institution, as the case may be, authorising the communication solely for the purposes of the investigation or prosecution of a criminal offence.

11. Prohibited use of DNA profile

No person who receives a DNA profile for entry in the DNA data bank shall use it or allow it to be used other than for the purposes of the administration of the Act.

12. Prohibited communication of DNA profile

No person shall, except in accordance with these Regulations, communicate or allow to be communicated a DNA profile that is contained in the DNA data bank or any other related information.

13. Access to information

Access to information contained in the DNA data bank may be granted to any person or class of persons that the Director considers appropriate for the purposes of the proper operation and maintenance of the DNA data bank.

14. Unauthorised use of information

No person to whom information is communicated under regulation 13 or who has access to information under any provision of these Regulations shall use that information other than for the purposes referred to in that regulation or provision thereof.

15. Removal of information from crime scene index

(1)Information in the crime scene index shall be permanently removed, if the information relates to a DNA profile derived from a bodily substance of—
(a)a victim of a sexual offence that was the object of the relevant investigation; or
(b)a person who has been eliminated as a suspect in the relevant investigation.
(2)Subject to any other provision of these Regulations, information in the dangerous offenders index shall be kept indefinitely.

16. Removal of information from dangerous offenders’ index

(1)The following information in the dangerous offenders’ index shall be permanently removed without delay after—
(a)the conviction of a suspect is quashed and a final acquittal entered;
(b)in the case of information in relation to a person who has been discharged—
(i)the expiry of three years after the person is discharged absolutely, unless the person is convicted of another sexual offence during that period; or
(ii)the expiry of five years after the person is discharged conditionally, unless the person is convicted of another offence during that period.
(2)Information in the dangerous offenders’ index in relation to a child shall be permanently removed without delay.

17. Storage of samples, etc.

(1)When bodily substances are transmitted to the Director under regulation 7 or 8, the Director shall store, safely and securely for the purpose of forensic DNA analysis, the portions of the samples of the bodily substances that he considers appropriate, and shall destroy the remaining portions without delay.
(2)Forensic DNA analysis of stored bodily substances may be performed if the Director is of the opinion that the analysis is justified because significant technological advances have been made since the time when a DNA profile of the person who provided the bodily substances, or from whom they were taken, was last derived.
(3)Any DNA profile that is derived from stored bodily substances shall be transmitted to the Director for entry in the dangerous offenders index and no person shall use such a DNA profile except to transmit it under this subsection.
(4)Access to stored bodily substances may be granted to any person or class of persons that the Director considers appropriate for the purpose of preserving the bodily substances.
(5)No person shall transmit stored bodily substances to any person or use stored bodily substances except for the purpose of forensic DNA analysis.
(6)The Director may at any time destroy any or all of the stored bodily substances if he considers that they are no longer required for the purpose of forensic DNA analysis.
(7)The Director shall nevertheless destroy the stored bodily substances of a person without delay—
(a)after the conviction is quashed and a final acquittal entered; and
(b)if the person has been discharged—
(i)after the expiry of three years after the person is discharged absolutely, unless the person is convicted during that period of another offence; or
(ii)after the expiry of five years after the person is discharged conditionally, unless the person is convicted during those three years of another offence.
(8)Despite anything contained in this regulation, stored bodily substances of a person in respect of whom a pardon is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.
(9)The Director shall, without delay, destroy stored bodily substances of a child.

18. Contravention of any provision of these regulations

Every person who contravenes any provision of these Regulations commits an offence and shall be liable, on conviction, to a fine not exceeding six thousand shillings or imprisonment for a term not exceeding six months, or both.
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31 December 2022 this version
24 October 2008
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