RECEIVED 31 14AR IUlk - Kenya Law: Home Page€¦ · · 2014-03-31The Kenya National AIDS Authority Bill, 2014 ... doing or performing all other acts or things for the ... The conduct

SPECIAL ISSUE

Kenya Gazette Supplement No. JO (Bills No. 1)

REPUBLIC OF KENYA

KENYA GAZETTE SUPPLEMENT

NATIONAL ASSEMBLY BILLS, 2014

NAIROBI, 21st February, 2014

CONTENT

Bill for Introduction into the National Assembly—

PAGE

The Kenya National AIDS Authority Bill, 2014.....................................1

NATIONAL COUNCIL FOR LAW REPORTING

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THE KENYA NATIONAL AIDS AUTHORITY BILL, 2014ARRANGEMENT OF CLAUSES

ClausePART I—PRELIMINARY

1—Short title.

2—Interpretation.

PART II— THE KENYA NATIONAL AIDS AUTHORITY

3—Establishment of the Authority.

4—Headquarters and offices of the Authority.

5—Functions of the Authority.

6—Board of management.

7—Conduct of business and affairs of the Board.

8— Qualifications for appointment of chairperson and members

9— Disqualification .for appointment.

10—Powers of the Board.

I 1—Procedure for appointment of chairperson and members.

12—Delegation by the Board.

13—Tenure of office.

14—Oath of office.

15—Vacancy.

16— Director-General of the Authority.

17— Staff of the Authority.

18—Seal of the Authority.

19—Protection from personal liability.

20—Terms and conditions of service

PART Ill—FINANCIAL PROVISIONS

21—Funds of the Authority.

22—Financial year.

23—Annual estimates.

24—Accounts and audit.

2 The Kenya National AIDS Authority Bill, 2014

PART P1—MISCELLANEOUS PROVISIONS

25—Declaration by Cabinet Secretary.

26—Reports.

PART V—PROVISIONS ON DELEGATED POWERS

27—Regulations.

FIRST SCHEDULE—Provisions as to the Conduct of Business andAffairs of the Board

SECOND SCHEDULE— Transitional Provisions

The Kenya National AIDS Authority Bill, 2014 3

THE KENYA NATIONAL AIDS AUTHORITYBILL, 2014

A Bill for

AN ACT of Parliament to establish the KenyaNational AIDS Authority, to provide for itscomposition, functions and powers and forconnected purposes

ENACTED by the Parliament of Kenya, as follows—

PART I—PRELIMINARY

1. This Act may be cited as the Kenya National AIDS Short title.

Authority Act, 2014.

2. In this Act, unless the context otherwise requires— Interpretation.

"Acquired Immune Deficiency Syndrome (AIDS)"has the meaning assigned to it under section 2 of the HIVand AIDS Prevention and Control Act,2006 and HIV andAIDS shall be construed accordingly;

"Authority" means the Kenya National AIDSAuthority established by section 3

"Board" means the Board of Management of theAuthority established by section 6;

"Cabinet Secretary" means the Cabinet Secretary forthe time being responsible for matters relating to HIV andAIDS;

"Human Immuno-deficiency Virus (HIV) has themeaning assigned to it under section 2 of the HIV andAIDs Prevention and Control Act, 2006.

"Stakeholders" means all parties concerned in HIVand AIDS programming and management includinggovernment departments, non governmental organisations,faith based organisations research bodies, universities andthe private sector.

PART II —THE KENYA NATIONAL AIDSAUTHORITY

3. (1) There is established an Authority to be known ' stathlibhrnent of the

as the Kenya National AIDS Authority.

(2) The Authority is a body corporate with perpetualsuccession and a common seal and shall, in its corporatename, be capable of-

4 . The Kenya National AIDS Authority Bill, 2014

(a) suing and being sued;

(b) taking, purchasing or otherwise acquiring,holding, charging or disposing of movable andimmovable property;

(c) borrowing, lending and granting money;

(d) entering into contracts; and

(e) doing or performing all other acts or things for theproper performance of its functions under this Actwhich may lawfully be done or performed by abody corporate.

(3) The Authority shall be the successor to the Councilknown as the National AIDS Control Council existingimmediately before the commencement of this Act

L.N 170/1999 established .under the State Corporations Act.Headquarters and 4. (1) The headquarters of the Authority shall be inoffices of theAuthority. Nairobi. -

(2) The Authority shall ensure access to its services inall parts of the Republic and may establish offices in thecounty headquarters or such other offices as it may deemnecessary.

(3) The Authority shall be responsible to the countyexecutive committee on the utilisation of funds granted to itby that county government.

(4) The county office shall be responsible to theAuthority on the discharge of functions of the Authorityand the-exercise of its powers at the county level.

Functions of the 5. The functions of the Authority are to—Authority.

(a) develop policies and guidelines relevant to theprevention , control and management of HIV andAIDS;

(b) regulate, monitor and evaluate implementation ofHIV and AIDS programmes in the country;

(c) co-ordinate, in accordance with this Act, otherwritten law or such manner as may be prescribed,HIV and AIDS programmes in the country;

(d) develop specific frameworks and strategies to dealwith all aspects of the HIV and AIDS epidemic;


(e) mobilise resources for HIV and AIDS control,prevention and management, and provide grantsto implementing agencies;

(f) mobilise all stakeholders to participate in HIV andAIDS control and prevention;

(g) collaborate with local and international agencieswhich work in HIV and AIDS control andprevention.,

6. The Authority shall be administered by a Board of Board ofmanagement.

management which shall consist of a chairperson, and sixother members appointed in accordance with the provisionsof this Act.

7. (1) The conduct and regulation of the business and Conduct of businessand affairs of the

affairs of the Board shall be as provided in the First Board.

Schedule.

(2) Except as provided in the First Schedule, the Boardmay regulate its own procedure.

8. (1) A persoif shall be qualified for appointment as Qualifications forappointment of

the chairperson of the Board if the person - chairperson andmembers.

(a) has knowledge and at least twelve yearsexperience in matters relating to HIV and AIDS;

(b) holds a degree from a university recognized inKenya; and

(c) meets the requirements of Chapter Six of theConstitution.

(2) A-person shall be qualified for appointment as amember of the Authority if the person -

(a) holds a degree from a university - recognized inKenya; -

(b) has knowledge and at least ten years experience inmatters relating to any of the following fields-

(i) HIV and AIDS;

(ii) gender and social development;

(iii) social sciences;

(iv) health and medicine;

(c) has had a distinguished career in their respectivefields; and

6

Disqualifications forappointment

The Kenya National AIDS Authority Bill, 2014

(d) meets the requirements of Chapter Six of theConstitution.

9. A person shall not be qualified for appointment asthe chairperson or a member if such person—

(a) i a member of Parliament or a county assembly;

(b) is a undischarged bankrupt; or

(c) has been removed from office for contravening theprovisions of the Constitution or any other law.

Powers of the Board. 10. The Board shall have all powers necessary for theproper performance of the functions of the Authority underthis Act and in particular, but without prejudice to thegenerality of the foregoing, the Board shall have power to--

(a) mobilise resources for the prevention, control andmanagement of HIV and AIDS;

(b) manage, control and administer the assets of theAuthority in such manner and for such purposes asbest promote the purpose for which the Authority,is established;

(c) determine the provisions to be made for capital andrecurrent expenditure and for the reserves of theAuthority;

(d) receive any grants, gifts, donations or endowmentsto the Authority and make legitimate disbursementsthere from;

Procedure forappointment ofcbairpermn andatembers.

(e) enter into association with such other bodies ororganizations within or outside Kenya as it mayconsider desirable or appropriate and infurtherance of the purposes for which theAuthority is established;

(I) open such bank accounts for the funds of theAuthority its funds as may be necessary;

(g) invest any surplus funds of the Authority notimmediately required for its purposes as may bepermitted by law for the time being in force; and'.

(h) undertake any activity necessary for the fulfilmentof any of the functions of the Authority.

11. (1) Upon commencement of this Act or wheneverthere is a vacancy in the Board, the President shall, within


fourteen days of the occurrence of the vacancy, appoint aselection panel for the purpose of selecting suitablecandidates for appointment as the chairperson or memberof the Board.

(2) The selection panel appointed under subsection(1) shall consist of one person nominated by—

(a) the President;

(b) the Cabinet Secretary responsible for mattersrelating to HIV and AIDS;

(c) the Public Service Commission

(d) the National Council for Persons with Disabilities;

(e) a joint forum of religious organizations consistingof the Supreme Council. of Kenya Muslims, theKenya Episcopal Conference, the NationalCouncil of Churches of Kenya, the EvangelicalFellowship of Kenya and the Hindu Council ofKenya;

(f) the most representative association representingpersons living with HIV AIDS as may bedetermined by the Cabinet Secretary; and

(g) the Association of Professional Societies in EastAfrica.

(3) The selection panel shall, subject to this section,determine its own procedure, and the Cabinet Secretaryresponsible for public service shall provide it with, suchfacilities and such other support as it may require for thedischarge of its functions.

(4) The selection panel shall, within seven days of itsconvening, invite applications, in at least two newspapersof national circulation from qualified persons to besubmitted within twenty-one days from the date of theinvitation.

(5) The selection panel shall within seven days ofreceipt of applications under subsection (4) consider theapplications and publish the names and academicqualifications of all shortlisted applicants in at least twodaily newspapers of national circulation.


(6) The selection panel shall within fourteen days ofthe publication under subsection (5) interview and identifythree persons qualified for appointment as chairperson andten persons qualified for appointment as members of theAuthority and shall forward the names of the selectedcandidates to the President for nomination.

(7) The President shall, within seven days of receipt ofthe names forwarded under subsection (6), nominate oneperson for appointment as chairperson and six persons forappointment as members of the Authority, and shallforward the names of the persons nominated to theNational Assembly.

(8) The National Assembly shall, within twenty-onedays of the day it next sits after receipt of the names of thenominees under, subsection (7), consider all thenominations received and may approve or reject anynomination.

(9) Where the National Assembly approves thenominees, the Speaker shall forward the names of theapproved persons to the President for appointment.

(10) The President shall, within seven days of thereceipt of the approved nominees from the NationalAssembly, by notice in the Gazette, appoint the chairpersonand members approved by the National Assembly.

(11) Where the National Assembly rejects nynomination, the Speaker shall, within three days,communicate the decision of the National Assembly to thePresident to submit fresh nominations.

(12) Where a nominee is rejected by the NationalAssembly under subsection (11), the President shall, withinseven days, submit to the National Assembly a freshnomination from amongst the persons shortlisted andforwarded by the selection panel under subsection (6).

(13) If the National Assembly rejects all or anysubsequent nominee submitted by the President forapproval under subsection (12), the provisions ofsubsections (6) and (7) shall apply.

(14) The selection panel convened under subsection(1) shall stand dissolved upon the appointment of thechairperson or member of the Authority whichever is thelater.


(15) In short listing, nominating or appointing personsas chairperson and members of the Authority, the selectionpanel, the National Assembly and the President shallobserve the principle of gender equity, regional and ethnicbalance, transparency, openness and competitiveness andshall have due regard to the principle of equal opportunitiesfor persons with disabilities.

12. The Authority may, by resolution either generally or by the

in any particular case, delegate to any committee or to anymember, officer, employee or agent of the Authority, theexercise of any of the powers or the performance of any ofthe functions or duties of the Authority under this Act orunder any other written law.

13. The chairperson and members of the Authority Tenure of office.

shall be appointed for a term of three years and shall beeligible for re-appointment for one further term.

14. Before assuming office, the chairperson and Oath of office.

members of the Authority shall take and subscribe to anoath of office as may be prescribed.

15. (1) The office of the chairperson or a member of Vacency.

the Authority shall become vacant if the holder—

(a) dies;

(b) resigns from office, by a notice in writingaddressed to the President;

(c) is absent from three consecutive meetings of theAuthority without good cause; or

(d) is removed from office in accordance withsubsection (2).

(2) A member of a Authority, may be removed fromoffice only for—

(a) serious violation of the Constitution or any otherlaw, including a contravention of Chapter Six;

(b) gross misconduct, whether in the performance ofthe member's or office holder's functions orotherwise;

(c) physical or mental, incapacity to perform thefunctions of office;

(d) incompetence; or

(e) bankruptcy.


Director General to 16. (1) The-Board shall, through an open, transparentthe Authority.and competitive recruitment process appoint a suitablyqualified person to be the Director General to theAuthority.

(2) A person shall be qualified for appointment as theDirector General if the person -

(a) is a citizen of Kenya;

(b) has knowledge and at least ten years experience inmatters relating to HIV and AIDS;

(c) possesses a postgraduate degree from- a, universityrecognised in Kenya in any of the following areas-

(i) HIV and AIDS;

(ii) public health or Biomedical sciences; or

(iii) humanities and social sciences;

(d) has had at least ten years proven experience inleadership or at senior management level;

(e) meets the requirements of Chapter Six of theConstitution.

(3) The Board shall cause the vacancy in the office ofthe Director General to be advertised at least three monthsbefore the expiry of the incumbent's term.

(4) The Director General shall be the chief executiveofficer and secretary to the Board and shall, subject to thedirections of the Board, be responsible for—

(a) day-to-day administration and management of theaffairs of the Authority;

(b) all income and expenditure of the Authority;(c) all assets and the discharge of all liabilities of the

Authority;(d) carrying out of the decisions of the Authority;(e) supervision of other employees of the Authority;

and

(0 the performance of such other duties as may beassigned by the Board.

Staff of the 17. (1) The Board may appoint such staff as may beAuthority,necessary for the discharge of the functions of theAuthority under this Act.

The Kenya National AIDS Authority Bill, 2014 ii

(2) The Board may engage such experts or consultantsto assist it in the discharge of the functions of the Authorityupon such terms as the Board may determine.

(3) The Board shall, in the appointment of the staff ofthe Authority, ensure that—

(a) at least one-third of the staff are of either gender;(b) the appointment reflects ethnic and regional

diversity of the people of Kenya.

18. (1) The seal of the Authority shall be such device Seal of the

as may be determined by the Board and shall be kept by the Authority.

Director General.

(2) The affixing of the seal shall be authenticated bythe chairperson or any other person authorized in thatbehalf by a resolution of the Board.

(3) Any document purporting to be under the seal ofthe Authority or issued on behalf of the Authority shall bereceived in evidence and shall be deemed to be so executedor issued, as the case may be, without further proof, unlessthe contrary is proved.

19. Nothing done by a member of the Board or by anyperson working under the instructions of the Board shall, ifdone in good faith for the purpose of executing the powers,functions or duties of the Authority under the Constitutionor this Act, render such member or officer personally liablefor any action,claim or demand.

20. (1) The chairperson and members of the Authorityshall be paid such allowances or other remuneration asdetermined upon the advise of the Salaries andRemuneration Authority.

(2) The Director General shall serve on such termsand conditions as the Board may determine upon the adviceof the Salaries and Remuneration Authority.

(3) The staff of the Authority shall be engaged onsuch terms and conditions of service as determined byBoard upon the advice of Salaries and RemunerationCommission.

PART Ill—FINANCIAL PROVISIONS

Protection frompersonal liability.

Terms andconditions ofservice.

21. (1) The funds of the Authority shall consist of— Funds of theAuthority.

(a) monies allocated by Parliament for purposes of theAuthority in accordance with subsection (2);


(b) monies allocated to county offices of theAuthority by the county assemblies;

(c) any grants, gifts, donations or other endowmentsgiven to the Authority;

(d) such funds as may vest in or accrue to theAuthority in the performance of its functions orexercise of its powers under this Act or under anyother written law.

(2) There shall be made to the Authority, out of moniesprovided by Parliament by virtue of paragraph 12 of the

L.N.170/1999 National AIDS Control Council Oxder, 1999 for that purpose,grants towards the expenditure incurred by the Authority inthe exercise of its powers or the performance of its functionsunder this Act. -

(3) The receipts, earnings or accruals of the Authorityand the balances at the close of each financial year shall notbe paid into the Consolidated Fund but shall be retained forthe purposes for which the Authority is established.

Financial year. 22. The financial year of the Authority shall be theperiod of twelve months ending on the thirtieth of June ineach year.

Annual estimates. 23. (I) At least three months before thecommencement of each financial year. the Authority shallcause to be prepared estimates of the revenue andexpenditure of the Authority for that year.

(2) The annual estimates shall make provision for allthe estimated expenditure of the Board for the financialyear concerned and in particular, shall provide for the—

(a) payment of allowances or other charges in respectof members of the Board;

(1) payment of remuneration in respect of the staff ofthe Authority;

(c) payment of pensions, grtuities and other chargesin respect of benefits whichare- payable out of thefunds of the Authdrity;

(d) maintenance of the buildings and grounds of theAuthority;

(e) funding of training, research and development ofactivities of the Authority; and


(f) creation of such funds to meet future or contingentliabilities in respect of benefits, insurance orreplacement of buildings or installations,equipment and in respect of such other matters asthe Authority may deem necessary.

(3) The annual estimates shall be approved by theBoard before the commencement of the financial year towhich they relate and shall be submitted to the CabinetSecretary for tabling in Parliament.

24. (1) The Board shall cause to be kept all proper Accounts and audit.

books and records of account of the income, expenditure,assets and liabilities of the Authority.

(2) The annual accounts of the Authority shall beprepared, audited and reported upon in accordance with the No. 12 of 2003.

Public Audit Act, 2003.

PART IV—MISCELLANEOUS PROVISIONS25. (1) The Cabinet Secretary rdponsible for HIV and Declaration by

AIDS or other disasters may, by notice in the Gazette, - Cabinet Secretary.

declare HIV and AIDS as a national disaster among otherdisasters.

(2) Upon a declaration under subsection (1), thenational government shall make appropriate and necessarybudgetary provisions to fund and support the fight againstHIV and AIDS.

26. (1) The Authority shall, at the end of each Reports.

financial year cause an annual report to be prepared.

(2) The Authority shall submit the annual report to thePresident and the National Assembly three months after theend of the year to which it relates.

(3) The annual report shall contain, in respect of theyear to which it relates—

(a) the financial statements of the Authority;(b) a description of the activities of the Authority;

(c) such other programme and statistical informationas the Authority may consider appropriate relatingto the Authority's functions;

(d) any recommendations made by the Authority toGovernment Ministries, departments or any personand the action taken;


(e) the impact of the exercise of any of its mandate orfunction;

(f) any challenges to the achievements"of the objectsand functions under this Act or any written law;and

(g) any other information relating to its functions thatthe Authority considers necessary.

(4) The Authority shall cause the annual report to bepublished and the report shall be disseminated in suchmanner as the Authority may determine.

PART V—PROVISIONS ON DELEGATED POWERS1

Regulations. 27. (1) The Authority may, with the approval of theNational Assembly, make regulations generally for thebetter carrying into effect of any provisions of this Act.

(2) Without prejudice to the foregoing, Regulationsmade under this section may provide for—

(a) the appointment, including the power to confirmappointments of persons, to any office in respectof which the Authority is responsible under thisAct;

(b) the disciplinary control and termination ofappointments of employees of the Authority; and

(c) the practice and procedure of the Authority in theexercise of its functions under this Act.

(3) For the purposes of Article 94(6) of theConstitution-

(a) the purpose and objective of the delegation underthis section is to enable the Cabinet Secretary tomake regulations to provide for the better carryinginto effect of the provisions of this Act and toenable the Authority to discharge its functionsmore effectively;

(b) the authority of the Cabinet Secretary to makeregulations under this Act will be limited tobringing into effect provisions of this Act and tofulfilment of the objectives specified under thissection; .

(c) the principles and standards applicable to theregulations made under this section are those set

The Kenya National AIDS Authority Bill, 2014 - 15 -

out in the Interpretation and General ProvisionsAct (Cap 2) and the Statutory Instruments Act,2013.

28. The National AIDS Control Council Order, 1999 Repeal of L.N170/1999.

is repealed.

(2) Notwithstanding the repeal under subsection (1),the provisions of paragraph 12 of the National AIDSControl Council Order, 1999 shall continue to apply to theAuthority in accordance with section 21(2) of this Act.

(3) The transitional provisions specified in the SecondSchedule shall apply upon commencement of this Act.

FIRST SCHEDULE (s.7)

PROVISIONS AS TO THE CONDUCT OF BU$INESSAND AFFAIRS OF THE BOARD

1. (1) The Board shall meet not less than four times in Meetings.

every financial year and not more than four months shallelapse between the date of one meeting and the date of thenext meeting.

(2) Notwithstanding the provisions of subparagraph(1), the chairperson may, and upon requisition in writing byat least four members shall, convene a special meeting ofthe Board at any time for the transaction of the business ofthe Board.

(3) Unless five members of the Board otherwise agree,at least fourteen days' written notice of every meeting ofthe Board shall be given to every member of the Board.

(4) The quorum for theconduct of the business of theBoard shall be four members including the chairperson orthe person presiding.

(5) The chairperson shall preside at every meeting ofthe Board at which he is present but, in the chairperson'sabsence, the members present shall elect one of theirnumbers to preside, who shall, with respect to that meetingand the business transacted thereat, have all the powers ofthe chairperson.

(6) Unless a unanimous decision is reached, a decisionon any matter before the Board shall be by a majority ofvotes of the members present and voting and, in the case ofan equality of votes, the chairperson or the personpresiding shall have a casting vote.


(7) Subject to subparagraph (4), no proceedings of theBoard shall be invalid by reason only of a vacancy amongthe members thereof.

CommitteesAuthority. 2. (1) The Board may establish committees for the

effective discharge of its functions.

(2) The Board may co-opt into the membership ofcommittees established under subsection (1) other personswhose knowledge and skills are found necessary for thefunctions of the Board.

(3) Any person co-opted into the Board undersubsection (2) may attend the meetings of the Board andparticipate in its deliberation, but shall have no power tovote.

Disclosure of3. (1) If a member of the Board is directly or

indirectly interested in a contract, propose contract or othermatter before the Board and is present at a meeting of theBoard at which the contract, proposed contract or othermatter is the subject of consideration, that member shall, assoon as is practicable after the commencement of thatmeeting, disclose the fact.

(2) A member to whom subsection (1) applies shallnot participate in the consideration, discussion or voting onthe matter in which the member has disclosed an interest.

(3) A disclosure of interest made under this paragraphshall be recorded in the minutes of the meeting at which itis made.

Execution of4. Any contract or instrument which, if entered into, or

executed by a person not being a body corporate, would notrequire to be under seal, may be entered into or executed onbehalf of the Board by any person generally or speciallyauthorized by the Board for that purpose.

Minutes. 5. The Board shall cause minutes of all resolutionsand proceedings of meetings of the Board to be entered inbooks kept for that purpose.

SECOND SCHEDULE (s.28(3)

TRANSITIONAL PROVISIONSInterpretation. 1. In this Schedule—

"appointed day" means the day on which this Actcomes into force;


"assets" include all property movable or immovableand all estates, easements and rights whether equitable orlegal in, over or out of property, choses-in-action, moneyor goodwill of the former institutions whether situated' inKenya or elsewhere;

"Council" means the National AIDS Control Councilestablished by Legal Notice - No. 170 of 1999 and isexisting immediately before the commencement of thisAct;

"liabilities" means liabilities, debts, charges, dutiesand obligations of every description, whether present orfuture, actual, or contingent, and whether to be observed orperformed in Kenya or elsewhere; and

"rights"" means all rights, powers, privileges andimmunities whether actual, contingent or prospective,whether observed or performed in Kenya or elsewhere.

2. (1) On the appointed day, all the funds, assets and Msets ad

other property, both movable and immovable, whichimmediately before such day were vested in the Councilshall, by virtue of this paragraph, vest in the Authority.

(2) On the appointed day, all rights, powers andliabilities,which immediately before such day were vestedin, imposed on or enforceable against the Council shall, byvirtue of this paragraph, be vested in, imposed on orenforceable against the Authority.

(3) If, on the appointed day, any suit, appeal,arbitration or other proceedings of whatever nature andwheresoever instituted in relation to the business of theCouncil which is, by virtue of this paragraph, transferred tothe Authority, shall not abate, be discontinued or be in anyway prejudicially affected by reason of such transfer of thebusiness of the Council or of anything contained in thisAct, and any suit, appeal arbitration or other proceedingsshall be continued, and enforced by or against theAuthority.

(4) In the case of assets and liabilities arising underany loans which vest in the Authority on the appointed day,the Authority may enter into such arrangements oragreements over such rights and liabilities with theGovernment or any other third party.


Reference to 3. Any reference in any written law or in anyCouncil.

document or instrument to the Council shall, on and afterthe appointed day, be construed to be a reference to theAuthority..

Proceedings. 4. Any proceedings pending immediately before theappointed day to which the Council was a party shall becontinued as if the Authority was a party thereto in lieu ofthe Council.

Agreements, deeds, 5. Every agreement, deed, bond or other instrument toetc.

which the Council was a party or which affected theCouncil and whether or not of such a nature that the rights,liabilities and obligations thereunder could be assigned,shall have effect as if the Authority were a party thereto oraffected thereby instead of the Council and as if for everyreference (whether express or implied) therein to theCouncil there were substituted in respect of anything to bedone on or after the appointed day.

Administrative 6. The administrative decisions made by the Councildecisions

which are in force immediately before the appointed dayshall, on or after such day, have force as if they weredirections made by the Authority under this Act.

Membersf the 7• Notwithstanding section 8, the persons who wereCouncil to servetheir unexpired tenn. members of the Council immediately before the

commencement of this Act shall continue in office untilnew members of the Authority are appointed under. thisAct.

Staff. 8. (1) Any person who, at the commencement of thisAct, is a member of staff of the Council shall, on theappointed day, become a member of staff of the Authorityon the same or improved terms and conditions of service asmay be specified by the Authority:

Provided that a member of staff of the C9uncil mayretire on the basis of abolition of office in accordance withthe existing regulations.

(2) Notwithstanding section 16, the person who wasthe Director of the Council immediately before thecommencement of this Act shall continue in office asDirector General until a new Director General is appointedunder this Act.

lisciplinary 9. (1) Where on the appointed day—

proceedings. /


(a) any disciplinary proceedings against any memberof staff of the Council are in the course of beingheard or instituted, or have been heard orinvestigated by the Council but no order ordecision has been made thereon;

(b) any such member of staff is interdicted orsuspended,

the Authority shall-

(i) in the case of paragraph (a), carry on andcomplete the hearing or investigation andmake an order or render a decision, as the casemay be; and

(ii) in the case of paragraph (b), deal with suchmember of staff in such manner as it deemsappropriate having regard to the offencecommitted by him or her, including thecompletion of disciplinary proceedings thathave been commenced against that member ofstaff.

(2) Where on the appointed day, any penalty, otherthan dismissal, has been imposed on any member of staffof the Council pursuant to disciplinary proceedings againsthim or her and the penalty has not been, or remains to be,serviced by such member of staff, he or she shall, on his orher transfer to the Authority, serve or continue to servesuch penalty to its full as if it had been imposed by theAuthority.

10. (1) A member of staff of the Council who Pension.

becomes a member of staff of the Authority may continueto be governed by the existing Government pensionscheme.

(2) Where any person whose services are transferredto the Authority is, on the appointed day, a member of anystatutory voluntary pension scheme-or provident fund, theperson shall for the purpose of this Act, continue to begoverned by the same regulations under those schemes orfunds, as if he or she had not been so transferred, and forpurposes of the regulations governing those schemes orfunds, service with the Authority shall be deemed to beservice in the Council.


MEMORANDUM OF OBJECTS AND REASONS

The objective of this Act is to provide a legal framework for theestablishment, powers and functions of the Kenya National AIDSAuthority., The Authority is established as a successor to the NationalAIDS Control Council. In its current state the National Aids ControlCouncil is a State Corporation established vide the National AIDS ControlCouncil Order published in legal Notice No 170 of 1999.

Even though the Council has made significant steps towards theprevention and spread of the AIDS scourge in the country, a number ofdefects have been noted which lead to the conclusion that better progresscould have been made. Most of these concerns revolve around theoperations of the Council.

A number of times, questions have also arisen as to the properutilisation of resources allocated to the Council. The process ofappointment of officials and membership to the Council has often alsobeen criticized as being opaque and subject to patronage while alsolacking in meritocracy.

In the current state the Council operates under and reports to theOffice of the President. This raises serious questions of autonomy whichmay end up hampering the effective operations of the Council due to thenoted issues. This lack of autonomy may also be a limiting factor in thebody exercising general functions. The situation is made worse by the factthat the funds that the Council is dependent on are drawn from theministerial allocations.

The Bill seeks to reverse this state of affairs by establishing theAuthority as a body corporate with perpetual succession and a commonseal. This gives it the ifull autonomy that comes with the status of acorporate body including , the capability to stie and be sued, to enter intocontracts and to own and transfer property in its own name. The funds tothe Authority will also now be directly allocated - by the NationalAssembly which further strengthens the Authority.

The Bill also, intends to strengthen the institutional structures Of theAuthority, by providing for a transparent and meritorious system for theappointment of the members of the Authority. The Chair and--members ofthe Authority are made subject to and prolected by the provisions of theConstitution as relates to state officers. The appointment process includesnomination by a panel and parliamentary approval.

Part I contains preliminary provisions.

Part II contains provisions on. the establishment, powers andfunctions of the Kenya National AIDS Authority as the body responsible

The Kenya National AIDS Authority Bill, 2014 21.

for the formulation of policy and co-ordination of all matters pertaining tothe prevention and control of HIV and AIDS.

Part III contains financial provisions which seek to grant theAuthority financial autonomy and also subject the resources to transparentaudit processes.

Part IV contains miscellaneous provisions including the repealing ofthe National AIDS Control Council Order, 1999 is repealed.

Part V contains provisions on delegated powers.

The First Schedule sets out regulations regarding the conduct ofbusiness and affairs of the Authority.

The Second Schedule sets out the transitional provisions.

PROVISIONS ON DELEGATED POWERS

This law when enacted will confer on a number of bodies and personsAuthority to make provisions having the force of law in Kenya in terms ofArticle 94 (6) of the Constitution of Kenya, 2010.

The Authority with the approval of the National Assembly forinstance is given Authority by section 27 of this Act to make regulations.The purpose and objectives of making these regulations include thefollowing:

to provide for the appointment, including the power to confirmappointments of persons, to any office in respect of which the Authority isresponsible under this Act;

(a) to provide for the disciplinary control. and termination ofappointments of employees of the Authority; and

(b) to provide for the practice and procedure of the Authority in theexercise of its functions under this Act.

Limits of the Delegated Authority

The regulations made under this Act by the Authority will be limitedto bringing into effect provisions of this Act and will therefore affect theappointments of persons, to any office in respect of which the Authority isresponsible under this Act, the disciplinary control and termination ofappointments of employees of the Authority and the practice andprocedure of the Authority in the exercise of its functions under this Act.

The enactment of this Bill shall not occasion additional expenditureof public funds.

Dated the 17th February, 2014. JARED ODHIAMBO OPIYO,

Member of Parliament.

Documents

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