The Tharaka Nithi County Affirmative Action Bill, 2017.

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THE THARAKA NITHI COUNTY AFFIRMATIVE ACTION BILL, 2017

ARRANGEMENT OF CLAUSES

Clauses

PART I—PRELIMINARY

1—Short Title

2—Interpretation

3—Object.

4—Application.

5—Constitutional premise.

6—Prohibition

PART II— ESTABLISHMENT OF ADMINISTRATIVE

FRAMEWORK AND FUNCTIONS

7—Obligation to develop affirmative action programs.

8—Content of affirmative action program.

9—Office of Director.

10—Recruitment, appointment qualifications etc.

11—Tenure of Director.

12—Remuneration and allowances.

13—Resignation.

14—Termination of employment.

15—Functions and powers of Director.

16—Delegation.

17—Executive directions by Executive

Committee Member.

18—Performance of directives.

19—Reports.

20—Public reports.

21—Request for further information

22—Failure to submit report or further information.

PART III—ADMINISTRATION

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23—Staff of the Directorate.

24—Disciplinary control.

25—Secondment.

26—Consultants etc.

PART IV— MISCELLANEOUS

27- Advisory Committees.

28- Non-disclosure of confidential information.

29- Development of a code of conduct.

30-Regulations.

31-General

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THE THARAKA NITHI COUNTY

AFFIRMATIVE ACTION BILL, 2017

A Bill for—

AN ACT of the THARAKA NITHI County to provide for

affirmative action, to establish an implementation mechanism of

affirmative action programs and for connected purposes

Enacted by the County Assembly of THARAKA NITHI as

follows—

PART I—PRELIMINARY

Short title. 1. This Act may be cited as the Affirmative Action Act, 2017.

Interpretation. In this Act unless the context otherwise

requires—

“affirmative action” includes any measure designed to overcome or

ameliorate an inequity or the systemic denial or infringement of

aright or fundamental freedom;

“affirmative action program”, in relation to a relevant employer,

means a program designed to ensure that—

appropriate action is taken to eliminate discrimination by the

relevant employer against women in relation to employment

matters; or

measures are taken by the relevant

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employer to promote equal opportunity for women in relation to employment matters;

“authority” means—

a body (whether incorporated or not) established for a public purpose by or under a law;

the holder of an office established for a public purpose by or under a law; or

an incorporated company over which the State or a body referred to in paragraph

is in a position to exercise control; “appoint” includes re-appoint;

“club” means an association (whether incorporated or not) of not less than thirty persons associated together

for social, literary, cultural, political, sporting, athletic or other lawful purposes that—

provides and maintains its facilities, in whole or in part, from the funds of the association; and

sells or supplies liquor for consumption on its premises;

“Director” means the Director of Affirmative Action;

“employer” means a person who employs a natural person—

under a contract of service, whether on a full-time, part-time, casual or temporary basis; or

under a contract for services;

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“employment matters” includes—

the recruitment procedure, and selection criteria, for appointment or engagement of persons as employees;

the promotion and transfer of employees;

training and staff development for employees; and

conditions of service of employees; “higher education institution” means a

university, college of advanced education or other institution of tertiary education (other than a technical and

further education institution;

“operative day”, in relation to a relevant employer, means the day specified in relation to that employer in

this Act;

“public report” means a public report referred to in this Act;

“relevant employer” means a natural person, or a body or association (whether incorporated or not), being

the employer of 10 or more employees;

“voluntary body” means a body or association (whether incorporated or not)the activities of which are not

engaged in for the purpose of making a profit, but does not include—

a club;

a trade union;

an association that provides grants, loans, credit or finance to its members;

a higher education institution;

“woman” means a member of the female sex

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irrespective of age.

Object. The purpose of this Act is to—

prohibit discrimination in education, employment, access to services

on the basis of race, color, religion, sex, national origin, ancestry,

sexual orientation, or disability;

provide for a framework for implementation of the relevant Articles

of the Constitution by the County Government;

require affirmative action to be taken in employment and in the

advancement of qualified women and minorities;

prohibit employment discrimination on the basis of race, color,

religion, sex, and national origin in the County Government assisted

programs;

require affirmative action to be taken to employ and advance

qualified individuals with disabilities and prohibits employment

discrimination based on a disability in County Government assisted

programs; and

provide for a framework to ensure appreciation and implementation

of fair administrative action and affirmative action in the County.

Application. (1) This Act applies to all persons, whether incorporated or not, and

State or non-state entities operating or conducting business within

the county.

Nothing in this Act shall be construed as contradicting the Provision

of the Constitution of Kenya in any matters touching on affirmative

action.

The Act shall be construed in complementation

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of the Constitution of Kenya and Acts of Parliament

providing for similar matters.

Constitutional

premise.

(1) Pursuant to Article 27 of the Constitution, every person is

equal before the law and has the right to equal protection and

equal benefit of the law.

Equality includes the full and equal

enjoyment of all rights and fundamental freedoms.

Women and men have the right to equal treatment, including the

right to equal opportunities in political, economic, cultural and

social spheres.

The County Government shall not discriminate directly or

indirectly against any person on any ground, including race, sex,

pregnancy, marital status, health status, ethnic or social origin,

colour, age, disability, religion, conscience, belief, culture, dress,

language or birth.

Prohibition. 6. A person shall not discriminate directly or indirectly against

another person on any of the grounds race, sex, pregnancy,

marital status, health status, ethnic or social origin, colour, age,

disability, religion, conscience, belief, culture, dress, language or

birth.

PART II—ESTABLISHMENT OF ADMINISTRATIVE

FRAMEWORK AND FUNCTIONS

Obligation to

develop affirmative

action programs.

7. An employer shall, on the commencement of this Act,

commence the development and implementation of an affirmative

action program.

Content of

affirmative action

program.

8. (1) An affirmative action program shall provide for action to

be taken—

(a) for the issue to the employees, by a senior officer concerned

with the management of the relevant employer, of a statement

to the effect that the

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employer, in accordance with this Act, commenced the development and for the implementation of an

affirmative action program on a specified day, being the operative day in relation to the employer;

to confer responsibility for the development and implementation of the program (including a continuous

review of the program), on a person or persons having sufficient authority and status within the management

of the relevant employer to enable the person or persons properly to develop and implement the program;

to consult with each trade union having members affected by the proposal for the development and

implementation of the program in accordance with this Act;

to consult with employees of the relevant employer, particularly employees who are women;

for the collection and recording of statistics and related information concerning employment by the relevant

employer, including the number of employees of either sex and the types of jobs undertaken by, or job

classifications of, employees of either sex;

to consider policies, and examine practices, of the relevant employer, in relation to employment matters to

identify—

any policies or practices that constitute discrimination against women; and

any patterns, whether ascertained statistically or otherwise of lack of equality of opportunity in respect of

women;

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to set objectives and make forward estimates in

the program; and

to monitor and evaluate the implementation of the program and to

assess the achievement of those objectives and forward estimates.

An affirmative action program of a relevant employer may

contain any other provision that the relevant employer thinks fit

that is not in consistent with—

a provision required by this section to be included; and

the purposes of this Act.

In sub-section (1)—

“forward estimate” means a quantitative measure or aim, which

may be expressed in numerical terms, designed to achieve

equality of opportunity for women in employment matters, being

a measure or aim that can reasonably be implemented by the

relevant employer within a specified time;

“objective" means a qualitative measure or aim, expressed as a

general principle, designed to achieve equality of opportunity for

women in employment matters, being a measure or aim that can

reasonably be implemented by the relevant employer within a

specified time.

Office of Director. 9. (1) There is established the Directorate of Affirmative action

which shall be headed by a Director of Affirmative Action.

(2) The Director shall perform the functions conferred on the

Director by this Act.

Recruitment,

appointment

qualifications etc.

10. (1) The Director shall be

competitively recruited by the County Public Service

Board.

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A person shall not be qualified to be

appointed as a Director unless that person—

is a citizen of Kenya;

holds a post graduate degree in any relevant fields;

has at least five years’ experience in senior management;

has served the public with distinction; and

meets the requirements of Chapter Six of the Constitution.

Tenure of Director. 11. (1) The Director shall hold office for a period, not exceeding

5 years, as is specified in the instrument of appointment, and may

be eligible for re-appointment for further and final term.

(2) The Director holds office, on such terms and conditions as are

determined by the Executive Committee Member in consultation

with the County Public Service Board shall determine.

Remuneration and

allowances.

12. The Director shall be paid such remuneration and allowances

as is recommended by the Salaries and Remuneration

Commission.

Resignation. 13. (1) The Director may resign from office by issuing a 30

day notice to the Executive Committee Member.

(2) The Notice referred to under subsection (1) shall take effect

upon formal notification and correspondence by the Executive

Committee Member.

Termination of

employment.

The Public Service Board may terminate the appointment of the

Director for—

misbehavior and misconduct;

gross violation of the Constitution or any written law;

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physical or mental incapacity;

declared bankrupt;

absenteeism; or

any other ground as may be provided for in the instrument of

appointment.

Functions and

powers of Director.

(1) The functions of the Director are—

to advise and assist relevant employers in the development and

implementation of affirmative action programs;

to issue guidelines to assist relevant employers to achieve the

purposes of this Act;

to monitor the lodging of reports by relevant employers as

required by this Act and to review those reports and deal with

them in accordance with this Act;

to monitor and evaluate the effectiveness of affirmative

action programs in achieving the purposes of this Act;

to undertake research, educational programs and other programs

for the purpose of promoting affirmative action to

achieve equal employment opportunity for women;

to promote understanding and acceptance, and public

discussion, of affirmative action to achieve equal employment

opportunity for women;

to review the effectiveness of this Act in achieving its purposes;

and

to report to the County Executive

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Committee Member on such matters in

relation to affirmative action to achieve equal employment

opportunity for women as the Director thinks fit (including a review

under paragraph (g)).

(2) In addition to any other powers conferred on the Director by this

Act, the Director has power to do all things necessary or convenient

to be done for or in connection with the performance of the functions

of the Director.

Delegation. (1) The Director may, either generally or as otherwise provided by

the instrument of delegation, in writing, delegate to—

any a person; or

an officer,

all or any of the powers and functions of the Director under this Act

other than this power of delegation.

A power or function so delegated, when exercised or performed by

the delegate, shall, for the purposes of this Act, be deemed to have

been exercised or performed by the Director.

A delegation under this section does not prevent the exercise of a

power or the performance of a function by the Director.

The Executive Committee Member may make regulations in relation

to the exercise of powers, and the performance of functions, of

the Director under this Act by an officer of the County.

The Director may revoke, amend a delegation under this Act.

An arrangement, or the variation or revocation of an arrangement,

shall be in writing and a copy of each

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instrument by which an arrangement has been made,

varied or revoked shall be published in the County Gazette.

Executive

directions by

Executive

Committee

Member.

17. (1) The Director shall exercise the powers, and perform the

functions, of the Director in accordance with general instructions

given by the Executive Committee Member in writing.

(2) Where the Executive Committee Member gives a direction

under sub-section (1), the Executive Committee Member shall

cause a copy of the direction to be laid before the County

Assembly within 15 sitting days of that Assembly after the

direction is given.

Performance of

directives.

18. The Director shall ensure implementation of directives issued

under this Act and report to the Executive Committee Member

and County Assembly every quarterly.

Reports. 19. (1) Without prejudice to section 11, the Director shall, as

soon as practicable, and in any event within 6 months, after each

30 June, submit to the Executive Committee Members a report on

the operations of the Director during the year that ended on that

30 June.

The Director may, from time to time, submit to the Executive

Committee Member—

a report on the operations of the Director during the period to

which the report relates; or

a report in respect of any matter relating to, or connected with, the

exercise of the powers, or the performance of the functions, of the

Director under this Act.

Where a report has been submitted to the Executive Committee

Member under sub-section (1)or (2), the Executive Committee

Member shall cause a copy of the report to be laid before County

Assembly within 15 sitting days of that Assembly after the day

on which the

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Executive Committee Member receives the report.

Public reports. (1) A relevant employer shall prepare a public report—

in the case of the employer's first report-on the initial development

and implementation of the employer's affirmative action program

during the period of 12 months commencing on the operative day in

respect of the relevant employer; and

in any other case-on the further development and implementation of

the employer's affirmative action program during each

period of 12

months commencing on the anniversary of the operative day in

respect of the relevant employer.

A relevant employer shall lodge a public report with the Director

within three months after the end of the period to which the report

relates.

A public report under sub-section (1) shall provide—

statistics and related information concerning employment by the

relevant employer, including the number of employees of either sex

and the types of jobs undertaken by, or job classifications of,

employees of either sex; and

an outline of the processes undertaken by the relevant employer—

in the case of the employer's first report-initially to develop and

implement the employer's affirmative action program; and

in any other case-further to develop and implement the program.

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Request for

further information

21. (1) Where, in the opinion of the Director, the

information provided in the report by any person on any matter

relating to affirmative action, the Director may direct that

additional information be submitted.

The employer or a person to whom such a directive has been made

shall comply with the directive.

The directive under subsection (1) shall be made by the Director,

by notice in writing, request the employer to provide further

information within such period as is specified in the notice.

Failure to submit

report or further

information.

22. (1) Where, without reasonable excuse, a person or a

relevant employer—

fails to lodge a public report or confidential report as required by

this Act; or

fails to provide further information in accordance with a notice

given under section 21(3),

the Director may, subject to sub-section (2), name the relevant

employer in a report of the Director as having failed to provide the

report or further information, as the case maybe.

(2) Where the Director proposes to name a relevant employer in a

report the Director shall, not less than 28 days before the day on

which the report is submitted to the Executive Committee

Member, furnish the relevant employer with a notice in writing

stating that the Director proposes so to name the employer and

specifying the reasons for the proposal.

PART III—ADMINISTRATION

Staff of the

Directorate.

23. The Public Service Board, in consultation with the Director,

shall recruit and appoint such numbers of public officers are shall

be necessary to discharge the functions of the Director under this

Act.

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Disciplinary

control.

24. Staff of the Directorate and any other officer

engaged by the Directorate shall be bound by the code of conduct

established under this Act and any other codes regulating public

officers.

Secondment. 25. (1) The Director may request for a public officer, whether

from the National Government or County Public Service, to be

seconded to assist in the discharge of the functions of the Director.

(2) Where any public officer has been seconded pursuant to

subsection (1), that officer shall be under the direct control and

command of the Director.

Consultants etc. (1) The Director may within the relevant procurement laws, engage

the services of any person, of suitable qualifications and

experience, whose knowledge and expertise would add value to the

Directorate.

The period of any engagement referred to under subsection (1)

shall not exceed three months.

The terms and conditions of engagement under subsection (1) shall

be determined by the Director in consultation with the County

Public Service Board.

PART V— MISCELLANEOUS

Advisory

Committees.

27. (1) Subject to this section the Executive Committee Member

may, in consultation with the Director, establish such adhoc

advisory committees as the Executive Committee Member

considers necessary for the purpose of giving advice to the

Executive Committee Member and to the Director on particular

matters or classes of matters relating to affirmative action

programs, functions of the Director or the operation of this Act.

(2) An advisory committee shall consist of such persons as the

Executive Committee Member from time to time appoints.

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For the purposes of assisting the Executive Committee Member in the appointment of the members of an

advisory committee, the Director may provide the Executive Committee Member with a list of the names of

persons—

representing industry or business (including a part of an industry);

representing trade unions;

representing higher education institutions;

representing organisations who represent women;

having special knowledge or interest in relation to affirmative action programs, the functions of the Director

or the operation of this Act; or

any other person as the Director may deem appropriate.

A member of an advisory committee holds office for such period as is specified in the instrument of

appointment, but not more than a year, and may be eligible for re-appointment.

A member of an advisory committee may resign from office by writing signed and delivered to the Executive

Committee Member.

The number of members of an advisory committee required to constitute a quorum at a meeting of that

advisory committee shall be as determined by the Executive Committee Member.

If the Executive Committee Member decides that a member of an advisory committee should be

remunerated, that member shall be paid such remuneration as is determined by the Salaries and

Remuneration Commission.

A member of an advisory committee shall be paid such allowances as are prescribed.

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Non-disclosure of

confidential

information.

(1) A person who is, or has at any time been,

the Director or a member of the staff or a consultant assisting the

Director or is, or has at any time been, authorised to perform or

exercise any function or power under this Act, shall not, either

directly or indirectly, except in the performance of a duty under or

in connection with this Act or in the performance or exercise of

such a function or power—

make a record of, or divulge or communicate to any person, any

information relating to a confidential report or confidential

information acquired by the first-mentioned person by reason of

that person's office, employment or engagement under or for the

purposes of this Act or by reason of that person being or having

been so authorised;

make use of any such report or information as is mentioned in

paragraph(a); or

produce to any person a confidential report or a document relating

to confidential information of another person furnished for the

purposes of this Act, except to the extent that the report or

information is the subject of a consent this Act.

A person who contravenes this section commits an offence and

shall on conviction be liable to a fine not exceeding one million or

to imprisonment for a term not exceeding five years or to both.

A person who is, or has at any time been, the Director or a

member of the staff or a consultant assisting the Director or is, or

has at any time been, authorised to perform or exercise any

function or power under this Act, shall not be required—

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to divulge or communicate any information relating to a confidential report or confidential information

acquired by the first-mentioned person by reason of that person's office, employment or engagement under

or for the purposes of this Act or by reason of that person being or having been so authorised; or

to produce a confidential report or a document relating to confidential information of which the first-

mentioned person has custody, or to which that person has access, by reason of that person's office,

employment or engagement under or for the purposes of this Act or by reason of that person being or

having been so authorised, except to the extent that the report or information was the subject of a consent

under this Act or where it is necessary to do so for the purposes of this Act.

Nothing in this section prohibits a person from—

divulging or communicating information, or producing a document, to the Director or an officer of a State,

in accordance with an arrangement prescribed; or

divulging or communicating information, or producing a document, that is required or permitted by an Act to

be divulged, communicated or produced, as the case may be.

In this section—

"confidential information" means information which, at the time when it is supplied by a relevant employer,

the relevant employer has specified as being supplied in confidence;

"court" includes any tribunal, authority or person having power to require the production of documents or

the

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answering of questions; and

"produce" includes permit access to.

Development of a

code of conduct.

29. The Director shall, within one year of the coming into force of

this Act, develop and Gazette a code of conduct to govern the affairs

of the Directorate.

Regulations. (1) The Executive Committee Member shall make regulations

generally for better carrying into effect the provisions of this Act.

In making regulations under this Act, the Executive Committee

Member shall pay due regard to—

the necessity to ensure the spirit and letter of the Constitution with

regard to affirmative action is promoted;

the views and proposals by the relevant stakeholders are taken into

consideration;

necessity to consult the Director.

General penalty. 31. A person who contravenes any provision of this Act to which no

penalty has been prescribed commits an offence and shall on

conviction be liable to a fine not exceeding five hundred thousand or

imprisonment for a term not exceeding one year or to both.

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The Bill seeks to provide a framework for implementation of the relevant Articles of the Constitution by

the County Government by requiring

affirmative action to be taken in employment and in the advancement of qualified women and minorities

The Bill prohibits employment discrimination on the basis of race, color, religion, sex, and national origin in

the County Government assisted programs or any other programmes in the County.

The Bill requires that affirmative action be taken to employ and advance qualified individuals with

disabilities and prohibits employment discrimination based on a disability in County Government assisted

programs; and provide for a framework to ensure appreciation and implementation of fair administrative

action and affirmative action in the County.

Part I contains preliminary provisions.

Part II lays down the general principles of the Bill and lays a framework for the promotion of affirmative

action in the County. It obligates the County Government to utilize existing framework in the

implementation of affirmative action.

Part III contain provisions on administration, which caters for recruitment of staff to assist the directorate

executive its functions in monitoring the absorption of affirmative action programs in the Count.

Part IV contains miscellaneous provisions.

The Bill delegates the power to make regulations to the County Executive Committee Member power to

make regulations for the better carrying into effect the objects and purpose of the Act.

Statement on the Constitutionality of the Bill:

The Bill is constitutional and provides for matters within the competencies of Tharaka Nithi County. It

recognizes the policy and constitutional obligation of the State and the National Government. It seeks to

provide

MEMORANDUM OF OBJECTS AND REASONS

The objective of this Bill is to give effect to relevant Articles of the Constitution which obligate the State,

County Government and other State entities to provide eliminate discrimination in education, employment,

access to services on the basis of race, color, religion, sex, national origin, ancestry, sexual orientation, or

disability or nay other ground.

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maternal health care support structure that respects the

devolved governance system. It also provides for a framework for cooperation and reciprocity

where necessary in the implementation of the Act.

This Bill does concern Tharaka Nithi County Government and is within the County Government

jurisdiction set out in Part 2 of the Fourth Schedule to the Constitution.

Dated this............................................................, 2017

…………………………………….. HON. MIRITI BOORE

Chairperson Committee on Implementation

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